Domestic Assault Lawyers Toronto
How to Successfully Defend a Domestic Abuse Charge in Toronto, Ontario
Being charged with any type of criminal assault allegation is a traumatic and painful experience. Those charged in Toronto and elsewhere in Ontario with domestic assault or intimate partner violence under s. 266 of the Criminal Code will face additional challenges because bail restrictions imposed on accused persons for this type of crime can prevent contact with a person’s spouse or domestic partner while the criminal case slowly navigates through the maze of the criminal justice system. If you are found guilty of domestic assault, you can also potentially face stiffer consequences and probation restrictions. Our team of domestic assault lawyers has 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 will apply a rigorous zero-tolerance policy, regardless of whether or not the complainant wishes to see the case prosecuted in court. 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
One of the best ways to ensure that you do not end up as a casualty of these zero-tolerance policies is to hire an experienced criminal law firm familiar with defending domestic assault cases to represent you at trial.
Daniel Brown Law is recognized as one of Canadian Lawyer Magazine’s Top 10 Criminal Law Boutique Firms for 2022-23.
Daniel Brown is certified as a specialist in criminal law by the Law Society of Ontario and his firm has a proven track record for successfully defending all types of domestic violence cases.
In 2021, Daniel was voted the Toronto Star’s Readers’ Choice Diamond Award Winner in the category of Best Criminal Lawyer.
One key to our law firm’s continued success is forming a winning strategy at the start of each case tailored to the specific needs of each client we represent.
Daniel and his team of trial lawyers are familiar with the unique challenges posed by domestic assault prosecutions, and we’ve had tremendous success representing both accused persons and complainants caught up in a justice system that refuses to listen to their needs. You can also learn about other domestic-related criminal charges including 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?
- What if the person making the complaint does not wish the charge to proceed to court or to trial?
- What happens to a person charged with domestic assault?
- How can I change my bail conditions?
- What are possible defences against domestic assault charges?
- What is a peace bond and why are they offered in spousal violence cases?
- What if I am trying to get a divorce and am charged with a Toronto domestic assault?
- Why should domestic assault complainants hire a lawyer?
- What are the penalties for 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.
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:
- the age and health of the accused person
- any prior findings of guilt as well as the nature and number of any such previous convictions
- whether the person accused of assault has any outstanding charges
- whether the accused person had been previously victimized
- any remorse and willingness to engage in a domestic violence counselling programs
- if the accused person comes from a disadvantaged group
- the seriousness of the crime alleged
- whether the crime involves violence
- whether the offence harmed the complainant including physical, psychological or financial harm
- whether a weapon was used or threatened to be used
- whether there was an intention to cause or attempt to cause substantial property damage or loss
- the age of the complainant
- the views of the complainant
Typically, someone charged with a domestic assault offence is kept in jail for a bail hearing to determine if they can be released from jail (with or without supervision) and to decide what rules they must follow until their court case is concluded. The police can hold someone they have arrested in jail for a bail hearing whether or not the person accused of domestic assault is otherwise an upstanding citizen without a previous criminal history. Those charged with domestic assault are also likely to face strict bail conditions which will likely restrict their ability to have contact with the complainant, even if the complainant wishes to have contact with them.
The person accused of domestic assault may also be required to remain away from their family residence, regardless of legal ownership, if the complainant continues to reside there. Typically, these bail conditions can remain in place for as long as the criminal charge is before the court unless it is modified by the judge or the Crown Attorney.
It is sometimes possible to change the conditions of bail to permit contact between the complainant and the accused person or to allow the accused person to return home before their criminal case is completed. The process to change bail conditions can often be lengthy, complex and costly unless the Crown Attorney agrees to the change. Several strategies can be used to increase an accused person’s chances of having their bail conditions changed. For details on how to change a bail condition read: How Can I Change My Bail Conditions? or call Daniel Brown Law to arrange a consultation.
There are several legal defences available to challenge domestic assault charges. A skilled defence lawyer will assess all possible legal defences to determine which defences are available in the unique circumstances of each 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.
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:
- the nature of the force or threat;
- 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;
- the person’s role in the incident;
- whether any party to the incident used or threatened to use a weapon;
- the size, age, gender and physical capabilities of the parties to the incident;
- 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;
- any history of interaction or communication between the parties to the incident;
- the nature and proportionality of the person’s response to the use or threat of force; and
- whether the act committed was in response to a use or threat of force that the person knew was lawful.
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 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.
Domestic assault allegations are sometimes settled by way of the accused person entering into a peace bond agreement in exchange for having the criminal charge dropped after the peace bond is in place.
This type of resolution is often much more favourable than a trial where the outcome remains uncertain. Agreeing to a peace bond does not require the accused person to admit that an assault was committed towards their domestic partner. However, much like bail conditions, the person who agrees to a peace bond will be required to follow various court-imposed rules until the peace bond expires.
Common rules imposed for peace bonds include restricting the accused person from possessing a weapon for the duration of the bond and/or limiting contact with the complainant on the assault charge except with the complainant’s prior consent. Prosecutors normally favour the use of peace bonds before withdrawing domestic assault charges to ensure complainants in these types of cases are protected by a court order even after the criminal charge is withdrawn.
Most peace bonds last for 12 months though the time may be shorter or longer depending on the specific case.
The obvious benefit to agreeing to enter into a peace bond is that the accused will ensure their clean criminal record is protected.
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.
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.
The consequences of being found guilty of a domestic assault charge can be significant for a person’s employment and reputation. A domestic assault conviction can leave someone facing a criminal record and/or jail.
The maximum jail sentence for domestic assault is either two years less one day where the Crown prosecutes the case by summary conviction or 10 years imprisonment where the Crown prosecutes the case by indictment.
Usually, the greater the harm suffered by the complainant, the harsher the penalty imposed by the judge. Alternatively, a judge may impose a lighter sentence including probation with counselling or a fine without jail for less serious domestic assault allegations. It is also possible to be found guilty of a domestic assault and receive no criminal record. This outcome is called a “discharge”.
There are many ways to defend against an allegation of domestic assault without pleading guilty. Every case is different and it is important to discuss with a lawyer what options are available to you before you walk into a courtroom for the first time. Know that, as in all criminal cases, being found guilty of a charge like domestic assault can have profoundly serious consequences for your employment, immigration status, ability to travel, family, reputation, and at worst, your freedom should you receive a jail sentence.
There is no substitute for strong, experienced legal representation when going through the criminal justice system. Daniel Brown and the lawyers at Daniel Brown Law have helped hundreds of people facing domestic assault charges escape criminal records and be reunited with their families. We can be reached at (416) 297-7200 to arrange a consultation to discuss your specific situation so that you can immediately obtain sound legal advice that suits your needs and objectives.