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Domestic Assault Lawyers Toronto

How to Successfully Defend a Domestic Abuse Charge in Toronto, Ontario

A criminal assault charge is serious enough on its own. A domestic assault or intimate partner violence charge under s. 266 of the Criminal Code carries additional weight. From the moment of arrest, bail conditions in these cases typically prohibit all contact with a spouse or domestic partner — sometimes for months or years while the case works its way through the courts. A guilty finding can also mean stiffer sentencing and probation restrictions that go beyond what you'd face on a standard assault charge.

Our team of domestic assault lawyers have successfully defended hundreds of domestic assault charges in all corners of Ontario.

We regularly appear in courtrooms across the Greater Toronto Area in addition to the Toronto courthouses including Newmarket, Oshawa, Brampton, and Milton.

In most domestic assault cases, the police and Crown prosecutors apply a rigorous zero-tolerance policy, regardless of whether the complainant wants to see the case prosecuted.

Canada's assault laws have also been recently modified to ensure that domestic assault charges are dealt with more strictly at both the bail and sentencing stages.

Choosing the Right Lawyer to Defend You

top criminal lawyer TorontoDomestic assault cases are among the most aggressively prosecuted files in the Ontario court system. The zero-tolerance framework means the Crown rarely walks away from these charges, even when the evidence is thin and even when the complainant asks them to. The right defence lawyer understands that dynamic and knows how to work within it — not against it blindly.

Why Choose Daniel Brown Law?

Daniel Brown Law represents clients charged with domestic assault and related family-court overlap matters in courts across the GTA. Daniel Brown is a certified specialist in criminal law — a designation held by fewer than 2% of criminal lawyers in Ontario. He is the author of Prosecuting and Defending Sexual Offence Cases (3rd Edition, Emond Publishing's Criminal Law Series), has authored articles for legal journals, and contributes commentary on criminal law to The Toronto Star and other major Canadian news outlets.

The firm and its lawyers have been repeatedly recognized for excellence in criminal defence:

When we take on a domestic assault case, we start building the defence strategy from day one — well before the first court appearance. We know the Crown's playbook in these cases, and we know how to challenge it. Daniel and his team have had substantial success representing both accused persons and complainants who've been swept up in a system that doesn't always stop to ask what they actually want. You can also read about other domestic-related criminal charges including coercive control, mischief, uttering threats and criminal harassment.

Read below for additional legal information about how to defend a domestic assault charge. Those looking for advice on domestic assault, spousal assault, intimate partner violence or domestic abuse charges should call Daniel Brown Law for an immediate consultation at (416) 297-7200. We are available 24 hours a day to help.

To learn more about defending other types of non-domestic assault charges, you can read our article on defending assault charges.

Frequently Asked Questions About Domestic Assault Charges:

What is a domestic assault?

The definition of assault is found in section 265 of the Criminal Code and applies to all types of assault allegations including domestic assault charges. Generally, an assault occurs when a person intentionally applies either direct or indirect force to another person without the other person's consent. An assault can also occur when a person attempts or threatens to intentionally apply direct or indirect force to another. Hitting, kicking, punching or even pushing a person without consent may be considered an assault. An assault doesn't require someone to cause injury to another.

A domestic assault is an assault accusation that takes place between "intimate partners" who are either current or former spouses, common-law partners or dating partners.

Where an assault takes place between two people who share one of these relationships mentioned above, the matter is labelled as a "domestic assault" case and will be prosecuted quite differently from other assault allegations by the crown attorney's office.

According to the "Crown Policy Manual", a document provided by the Attorney General, detailing how Crown prosecutors are to perform their duties in court, Crown Attorneys are instructed to "prosecute domestic violence offences as vigorously as other serious criminal matters".

Although the Criminal Code doesn't contain a distinct "domestic assault" charge, in many jurisdictions, domestic assault cases are separately identified and prosecuted by a specialized team of prosecutors. Crown Attorneys are required to consider the safety of domestic violence complainants and their families as a paramount factor at all stages of the prosecution. Recent Criminal Code changes instruct judges and prosecutors to act more harshly towards people accused of intimate partner violence at every stage of a criminal proceeding including the bail stage and the sentencing stage.

In the bail context, a judge is now required to consider whether someone is charged with an offence where actual, attempted, or threatened violence was used against an intimate partner.

At the sentencing stage, the Judge must now consider violence against an intimate partner, or the family member of the victim or offender, as an aggravating factor in sentencing. This means that Judges are instructed to impose harsher sentences for someone who committed an assault against a domestic partner.

Internal police policies dictate that in almost all situations, the police are expected to charge a person alleged to have assaulted another in a domestic context, regardless of whether or not independent proof of the crime exists such as visible injuries or witnesses to the crime. A person's word, even in the absence of ANY other evidence, is enough to bring their domestic partner into the criminal justice system on an assault charge.

What if the person making the complaint does not wish the charge to proceed to court or to trial?

At the court stage, the Crown Attorney will usually proceed with prosecuting a domestic assault case where there is a "reasonable prospect of conviction". It is often of little importance to the prosecutor that the person making the assault complaint no longer wishes the case to proceed to trial.

In domestic assault cases, a complainant does not have the choice to press charges with the police. If a complaint of domestic violence is made, the police will arrest and charge the person accused of the crime and the Crown Attorney will likely prosecute the case regardless of the complainant's wishes to halt the prosecution. However, in some unique circumstances, a complainant can influence a prosecutor's decision to withdraw a criminal charge.

Some of the many factors the Crown Attorney will consider in deciding whether to prosecute a domestic assault case include:

  1. the age and health of the accused person
  2. any prior findings of guilt as well as the nature and number of any such previous convictions
  3. whether the person accused of assault has any outstanding charges
  4. whether the accused person had been previously victimized
  5. any remorse and willingness to engage in a domestic violence counselling programs
  6. if the accused person comes from a disadvantaged group
  7. the seriousness of the crime alleged
  8. whether the crime involves violence
  9. whether the offence harmed the complainant including physical, psychological or financial harm
  10. whether a weapon was used or threatened to be used
  11. whether there was an intention to cause or attempt to cause substantial property damage or loss
  12. the age of the complainant
  13. the views of the complainant

What happens to a person charged with domestic assault?

Typically, someone charged with a domestic assault offence is held in custody for a bail hearing to determine whether they can be released from jail (with or without supervision) and to set conditions they must follow until their case is resolved. The police can hold a person for a bail hearing even if they have no prior criminal history. Bail conditions in domestic assault cases are almost always strict and will generally prohibit contact with the complainant — even when the complainant wants that contact to continue.

The accused may also be required to stay away from the family home, regardless of who owns it, if the complainant is still living there. Those conditions stay in place for the life of the charge unless a judge or the Crown agrees to modify them.

How can I change my bail conditions?

It is sometimes possible to change bail conditions to permit contact between the complainant and the accused, or to allow the accused to return home before the criminal case is resolved. The process can be lengthy, complex and costly unless the Crown agrees to the change. Several strategies can be used to improve the chances of having bail conditions varied. For details, read: How Can I Change My Bail Conditions? or call Daniel Brown Law to arrange a consultation.

What are possible defences against domestic assault charges?

There are several legal defences available to challenge domestic assault charges. A skilled defence lawyer will assess all possible legal defences to determine which ones apply to the specific facts of the case.

No Assault Occurred:

The first and most obvious defence against domestic assault is that no assault occurred. This can be accomplished by undermining the credibility and reliability of the complainant or other witnesses to the assaultive behaviour. Raising reasonable doubt in the judge's mind that an assault occurred may also come from presenting credible testimony from the person accused of committing the assault that no assault occurred. An absence of visible injuries, delay in disclosing the assault and demonstrating animus and motive from the person alleging the assault towards the accused person may all be used to raise a reasonable doubt that the assault occurred.

Self Defence:

A person accused of domestic violence can also argue that they were acting in self-defence to explain their assaultive behaviour. Canadian law permits someone to protect themselves or others against another person (including a domestic partner) who is trying to assault them or damage their property without being found guilty of domestic assault. When self-defence is raised as a defence, the trial judge will analyze the incident itself as well as the history between the parties to determine if there is any merit to the self-defence claim. The accused person's behaviour in response to an attack must be proportional to the danger they were facing.

A person accused of domestic violence can argue self-defence based on the evidence from the complainant or other witnesses to demonstrate how the attack unfolded. They can also testify in their own defence to establish that they were justified in assaulting their attacker to protect themself. Once self-defence is properly raised at trial, the Crown Attorney must disprove the defence beyond a reasonable doubt. A central issue in many self-defence cases examines the complainant's behaviour to assess whether the person accused of assault used appropriate force proportional to the force that the complainant used or threatened against them. In determining whether a self-defence claim will succeed at trial, a judge will consider a variety of factors including:

  1. the nature of the force or threat;
  2. the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
  3. the person's role in the incident;
  4. whether any party to the incident used or threatened to use a weapon;
  5. the size, age, gender and physical capabilities of the parties to the incident;
  6. the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
  7. any history of interaction or communication between the parties to the incident;
  8. the nature and proportionality of the person's response to the use or threat of force; and
  9. whether the act committed was in response to a use or threat of force that the person knew was lawful.

Consent Fight:

A person accused of domestic violence may also be able to argue that the assault happened during a consensual physical altercation between two people. Physical altercations that occur with the expressed or implied consent of both parties are not criminal as long as serious injury or non-trivial bodily harm in the course of the fight was not intended to be caused.

Other Defences

Other possible defences to assault include that the assaultive action towards the complainant was either accidental or reflexive. In both instances the person accused could be found to lack the intent to commit an assault.

What is a peace bond and why are they offered in domestic assault cases?

Domestic assault allegations are sometimes resolved by the accused entering into a peace bond agreement in exchange for having the criminal charge withdrawn. This type of resolution is often far more favourable than taking a case to trial where the outcome is never guaranteed. Agreeing to a peace bond does not require the accused to admit that an assault was committed. However, much like bail conditions, the person who enters into a peace bond must follow various court-imposed rules until the bond expires.

Common peace bond conditions include restricting the accused from possessing a weapon for the duration of the bond and limiting contact with the complainant except with the complainant's prior consent. Prosecutors generally favour peace bonds before withdrawing domestic assault charges because they ensure complainants remain protected by a court order even after the criminal charge is gone.

Most peace bonds last for 12 months, though the duration may be shorter or longer depending on the case.

The key benefit: the accused protects their clean criminal record.

What if I am trying to get a divorce and am charged with domestic assault?

Allegations of domestic assault commonly arise in the context of divorce proceedings or marriage separations. Special considerations need to be taken into account when defending a domestic assault allegation when family law proceedings are ongoing at the same time. Unfortunately, some family law litigants make false allegations of assault as a way to gain the upper hand in custody and divorce cases. Usually, a person claiming assault will be permitted by the police or the prosecutor's office to have exclusive access to the family home and custody of the children until the assault matter is resolved in criminal court. Many family law litigants are aware of this and improperly use the police to assist them with advancing their family law claims.

The lawyers at Daniel Brown Law will work closely with your family lawyer to ensure that your interests are protected in both criminal court and family court. Click here to learn more about the family law consequences of a criminal domestic violence conviction.

Why should domestic assault complainants hire a lawyer?

Once a complaint of domestic assault has been made to the police, it is only the Crown Attorney that decides whether or not criminal charges will proceed to trial. Neither the Judge, the police, nor the complainant has control over that decision-making process. Sometimes complainants may require a lawyer to advise them on how to make their opinions on prosecution known to the Crown Attorney. A seasoned criminal defence lawyer can provide important independent legal advice to complainants about their rights and legal obligations in a domestic violence case.

What are the penalties for domestic assault?

A domestic assault conviction carries real consequences. A criminal record affects employment, immigration status, the ability to travel, and family law proceedings. At the most serious end, a conviction can mean jail.

The maximum sentence is two years less a day where the Crown proceeds by summary conviction, or 10 years where the Crown proceeds by indictment. Generally, the more serious the harm to the complainant, the harsher the penalty. For less serious allegations, a judge may impose probation with counselling or a fine — no jail, and in some cases no criminal record at all. That last outcome is called a "discharge", and it's something we regularly pursue for our clients when the facts allow for it.

Every case is different. Before you walk into a courtroom, talk to a lawyer about what your options actually are. Daniel Brown and the lawyers at Daniel Brown Law have helped hundreds of people facing domestic assault charges protect their records and return to their families. Call us at (416) 297-7200 to arrange a consultation. We're available 24 hours a day.

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