penalties

Domestic Assault Charges in Canada

Written on Behalf of Affleck & Barrison LLP

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?

Consent

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

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. 

New Harsher Penalties Are in Force for Distracted Drivers in Ontario

Written on Behalf of Affleck & Barrison LLP

When the clock struck midnight on December 31, 2018, stiffer fines and long-lasting penalties for distracted drivers began in Ontario.

According to the Ontario Provincial Police, distracted drivers are the leading cause of fatal collisions in Ontario. In 2016, 65 people died in accidents caused by inattentive drivers.

WHAT IS DISTRACTED DRIVING?

Distracted driving is defined as driving a vehicle while engaging in another activity such as texting, reading, using any handheld device (including typing on a GPS or changing a playlist), grooming, eating, and drinking.

Using a cell phone while driving involves three types of distractions: visual, manual, and cognitive. Visual requires you to take your eyes off of the roadway. Manual entails taking your hands off of the wheel of the vehicle. Cognitive involves taking your mind off of driving. Even using a phone for a handsfree call provides a distraction to one’s cognition as your mind is taken off of the road.

STATISTICS REGARDING DISTRACTED DRIVING

Distracted driving has severe consequences to both the distracted driver, his/her passengers, and anyone within his/her path.

Statistics demonstrate that a distracted driver can fail to see up to 50% of their immediate environment.

Distracted drivers contribute to 20-30% of all motor vehicle collisions and are three times more likely to be involved in a motor vehicle accident than focused drivers.

According to Ontario’s Ministry of Transportation, deaths from collisions caused by distracted driving have doubled since 2000 in Ontario.

ONTARIO’S NEW DISTRACTED DRIVING LAWS

Beginning January 1, 2019, as part of Ontario’s Bill 174 , Ontario will have the toughest penalties for repeat distracted driving convictions.

Drivers who are found to be talking on their phones, texting, dialing, or emailing with a hand-held device will be fined up to $1,000 with a three-day licence suspension, and three demerit points.

Motorists facing a second conviction of distracted driving will face a fine of up to $2,000, a seven-day licence suspension, and six demerit points.

Drivers who have been convicted of driving distracted more than two times will be required to pay a fine of up to $3,000, will lose their licence for 30 days, and six demerit points.

Novice drivers with a graduated licence (G1, G2, M1 or M2) will face even tougher penalties. These drivers will face the same fines as more experienced drivers, in addition to:

  • 30-day licence suspensions for a first conviction;
  • 90-day licence suspensions for a second conviction; and
  • licence revocations and removal from the Graduated Licensing System for a third conviction.

In addition to the stiffer fines and greater penalties, those convicted of distracted driving can expect their insurance rates to increase.

The only exceptions to the distracted driving rules are when calling 911 in an emergency or when the driver is lawfully parked or safely pulled off of the roadway.

CARELESS AND DANGEROUS DRIVING OFFENCES

If you have endangered other people due to any type of distraction (using a hand-held or hands-free device) while driving, you may be charged with careless driving.

A driver convicted of careless driving faces fines of up to $2,000, six demerit points, and/or a jail term of six months, and a licence suspension of up to two years.

If you are charged with the dangerous operation of a motor vehicle upon consideration of the nature, condition, use of the vehicle, and the amount of traffic at the time, you may face a jail term of up to 10 years for causing bodily harm or up to 14 years for causing death.

TORONTO POLICE DISTRACTED DRIVING BLITZ

Toronto Police launched a two-week-long traffic blitz aimed at distracted drivers, which runs until January 20, 2019.

Officers will be using all types of vehicles to look for distracted drivers, including patrol cars, unmarked vehicles, bicycles, and on foot. Police officers will also be riding TTC buses and streetcars to observe drivers from above.

SIMPLE TIPS TO AVOID DISTRACTED DRIVING

Cell phones are a driver’s biggest distraction when they are behind the wheel. It is strongly recommended that drivers only use hands-free devices while driving to make short phone calls. Even drivers who are using hands-free devices become distracted by a telephone conversation while navigating through traffic.

It is also recommended that drivers turn off their phone or switch it to silent mode before getting into their vehicle. Placing one’s cell phone in the glove compartment or in a bag on the back seat will also help to avoid the temptation to use the phone while driving.

It is also suggested that drivers pre-program any GPS tools or music devices before starting their vehicle. If the need to make a call or return a text arises while driving, find somewhere safe to pull over and park your vehicle.

Drivers should also ensure that their children are comfortable, properly seat belted, and have everything they need prior to starting their vehicles.

If you are facing a distracted driving charge or another driving offence, please call the experienced criminal lawyers at Affleck & Barrison LLP at 905-404-1947 or contact us online. We offer a free consultation, and are available 24 hours a day, seven days a week.