In Canada, domestic assault is a very serious offence and the nature of the offence is considered an “aggravating factor” during sentencing for those found guilty. That is to say that the penalty will be more severe than for those found guilty of an assault not having taken place in a domestic context.
WHAT IS DOMESTIC ASSAULT?
Although domestic assault is not specifically defined in the Criminal Code, it is treated differently than regular assault by the police and the courts.
Domestic assault is an assault that occurs in the context of a domestic or intimate relationship between two people. This includes relationships such as boyfriends and girlfriends, spouses or common-law partners, and other family members.
In Canada, domestic assaults are treated more seriously by police and the courts for the following reasons:
- Domestic abuse is widespread in Canada;
- Domestic abuse can devastatingly impact children;
- There is a high risk that domestic violence will escalate if it is not dealt with quickly and effectively.
The Crown prosecutor has the burden to prove the charges of domestic assault beyond a reasonable doubt, including:
- That the complainant was in a domestic relationship with the accused (i.e. family member, romantic relationship, spouse or common law partner);
- That the accused directly or indirectly applied force to the complainant without consent;
- That the application of force was intentional or through the use of words or actions or threatened to apply force to the complaint and had the ability to carry out the threat or the accused accosted or begged the complainant while holding a weapon or imitation of a weapon.
Thus, domestic abuse does not necessarily involve physical abuse, but can include the threat of assault, coercion, sexual abuse and economic abuse.
WHAT IS THE BURDEN OF PROOF AND WHAT EVIDENCE CAN BE USED IN COURT?
If you are charged with domestic assault, it is up to the Crown prosecutor to prove the charges beyond a reasonable doubt. The Crown needs to have enough evidence to prove the case. However, even if the Crown has the evidence to satisfy the burden, there may be other evidence to contradict the Crown’s evidence.
The main witness in a domestic assault case is the alleged victim, the person who has been allegedly assaulted. This person is likely the husband or wife, girlfriend or boyfriend of the accused. This person will provide “viva voca” evidence (spoken words) to tell their side of the story regarding the alleged assault.
If there are alleged physical injuries, medical records or testimony from medical professionals may be used as evidence in court. There will also be evidence from one or more police officers to testify as to what he/she saw or heard when they arrived on the scene.
WHAT DEFENCES ARE AVAILABLE IN DOMESTIC ASSAULT CASES?
The Crown prosecutor has the burden to prove that the accused assaulted his/her spouse/partner without his/her consent. However, if the accused and his/her spouse agreed to take part in rough sex play, for example, the judge may find that the Crown has not proved the essential element of consent.
Self-defence is a common defence to any type of assault charge. However, there have been recent changes in the law and an accused can only use this defence when a number of criteria set out in the Criminal Code are met. The following are the criteria necessary in order to make a successful self-defence argument:
- Force is being used against you, or you had reasonable grounds to believe that force would be used against you;
- Your response to the threat was for the purpose of defending or protecting yourself from the threat or use of force;
- Your response to the threat was reasonable in the circumstances (i.e. a reasonable person in the same situation would have acted in a similar way).
A court will also consider the following factors in determining what was reasonable in the circumstances, including:
- The history of the two parties;
- Whether either party was intoxicated at the time of the offence;
- The size, age, gender and physical capabilities of the parties;
- The nature of the force being used against the accused;
- Whether there were other ways to respond;
- Any prior force events;
- Whether the responding force was proportional to the initial force.
WHAT ARE THE PENALTIES FOR DOMESTIC ASSAULT?
In Canada, the penalties for domestic assault depend upon the circumstances of each case and can range from a peace bond to jail time. If the Crown is proceeding by summary conviction (less serious offences), the offender may be required to pay restitution to the wronged party or pay for property damage or medical bills. If the crime does not warrant a jail sentence, the offender may receive a suspended sentence (i.e. remain under probation) or conditional sentence (i.e. house arrest).
However, if the Crown is proceeding by indictment (most serious offences), it is likely that the assault was very serious in nature and the accused will face jail time if convicted. For charges such as sexual assault or assault causing bodily harm, the accused can face up to 10 years in prison. However, if the conviction is for aggravated assault, the accused can face up to 14 years in prison.
Offenders who are convicted of more serious forms of domestic assault are also likely to receive ancillary orders, such as a DNA order or firearms prohibition. A DNA order requires the offender to submit samples of DNA to a national database that can be accessed by police officers across Canada.
If you are facing domestic assault charges, it is strongly recommended that you contact the experienced criminal defence lawyers at Affleck & Barrison LLP today online or at 905-404-1947 to find out what your options are to achieve the best possible result. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.