Domestic Assault Charges
At Pyzer Criminal Lawyers we have more than thirty-five years defending individual facing allegations of domestic assault.
We understand that people facing domestic assault allegations want to know, more than anything, if domestic assault charges can be dropped, dismissed or acquitted.
The answer is, yes, domestic assault charges can be won resulting in a withdrawal, dismissal or acquittal.
The chances of a withdrawal, dismissal or acquittal of domestic assault allegations is greatly improved with the assistance of experienced and skilled criminal defence counsel.
A withdrawal is the best possible final result for a person charged with a criminal offence in Canada.
It means the Crown prosecutor on your file has decided to not proceed with the charges. It does not mean a finding of guilt or conviction.
Allegations of domestic violence can be withdrawn after effective negotiation; or successfully defended at trial, resulting in the dismissal or acquittal of the domestic assault allegations.
Do not plead guilty to “domestic assault” without first obtaining legal advice from a Toronto domestic assault lawyer at Kostman & Pyzer, Barristers.
Domestic assault allegations are serious. An individual charged with “domestic assault” often suffers greatly.
At Pyzer Criminal Lawyers we work to restore the quality of life of the accused and their family, destroyed by a call to the police.
Know your rights! If you have been charged with domestic assault, contact Kostman & Pyzer today!
Don’t let a domestic assault charge ruin your life!
or CALL: (416) 658-1818
Talk to an Experienced Domestic Assault Lawyer with PROVEN RESULTS!
Pyzer Criminal Lawyers have successfully defended countless allegations of domestic assault. Our firm has extensive experience in this area of law.
We will raise every possible and realistic defence at your disposal with the goal of successfully resolving your case.
There may be defences available to you that are highly legally technical.
For example, the allegations and the evidence may be challenged under the Canadian Charter of Rights and Freedoms and this can result in a successful conclusion to your case.
At Kostman & Pyzer, we fight for your rights and we fight to win!
What is a Domestic Assault?
The Criminal Code does not have specific domestic assault offences.
A “domestic assault” occurs when any of the various types of assaults or violent offence within the Criminal Code take place in the context of a domestic relationship.
The legal definition of a domestic relationship is quite broad.
A domestic relationship is when two people (either opposite or same sex) are in an intimate relationship whether as boyfriend/girlfriend, spouses, common-law partners, children and parents, or children and legal guardian.
The legal definition of domestic relationship is likely to soon include ex partners as well.
When a criminal offence takes place within the context of a domestic violence occurrence, it is viewed by the Court as an aggravating factor against the accused.
We are experienced in all types of Domestic Assault cases, including:
She Said-He Said:
Domestic assault cases are often this variety. From a prosecution point of view, this type of allegation is hard to prove since very often there are few independent corroborating witnesses.
Strong representation can advocate on behalf of the accused for a successful resolution.
Extremely Minor Allegations & No History of Assaultive Behaviour:
In such cases, a Peace Bond resolution can be argued for by the accused’s criminal defence lawyer.
A Peace Bond is an agreement made by the defendant with the Court that they will abide by certain conditions for a period of either six months or one year.
Typical conditions that the defendant agrees to are to “keep the peace and be of good behaviour” and, often, to have contact with the complainant only with their written revocable consent.
More Serious But No Significant Injury:
In more serious cases, where there is no significant injury to the complainant, the criminal defence lawyer can argue that the matter should be resolved by way of a “discharge” (no criminal conviction or criminal record) and probation, wherein the client agrees to attend the PARS (Partner Assault Response) Program. Check out this article where we have answered this frequently asked question.
The client pleads guilty to “assault” and participates in the PARS program.
As the client gets deeper into the program, bail conditions are relaxed so as to allow greater contact between spouses. After the successful completion of the program, the client receives a discharge.
Serious Assault/Assault with Weapon/Threatening Case:
In cases of involving serious allegations there are a variety of defences available to the accused.
Depending on the circumstances, the accused may have a defence of self-defence available to him. There may be a defence of “defence of third person”.
One is permitted to intercede in an altercation to protect an individual who is being assaulted. The crucial factor in a viable defence of self-defence is the degree of force used.
Although an individual who defends himself or another is not expected to weigh the amount of responsive force “to a nicety”, excessive force in response or retaliatory force negates the defence of self-defence.
At Pyzer Criminal Lawyers, we assess the strengths and weaknesses of a particular defence. We conduct interviews with the accused and witnesses who may support the specific defence.
After a careful review of all evidence and witnesses statements, we make a determination as to the strongest course of action for the accused.
We’re Experts in All Types of Domestic Assault Cases!
or CALL: (416) 658-1818
Can The Complainant (alleged victim) Have The Domestic Violence Charges Dropped?
It is important for the accused facing domestic violence allegations to understand that the complainant or victim is not in control of this process and cannot make the allegations disappear.
The power to withdraw criminal charges is held by the Crown Attorney’s Office, and charges may only be withdrawn at their request.
Even in instances where the complainant advises the authorities and the Crown Attorney that they wish to drop the charges against the accused, the Crown Attorney will typically still prosecute.
Crown Attorney’s have discretion whether or not to prosecute the charges the police have laid (i.e to withdraw the charges), prosecute with a lesser charge, accept a guilty plea with a lesser charge.
Crown Attorney’s will sometimes agree to withdraw the charges following successful negotiations with the accused’s criminal defence lawyer.
If the Crown will not agree to withdraw domestic assault charges after resolution negotiations with Pyzer Criminal Lawyers’ domestic assault lawyers, we will aggressively defend the charges at trial resulting in the dismissal or acquittal, whenever possible.
A good criminal defence lawyer is able to assess the strengths and weakness of your particular circumstances to see how they should proceed with persuading the Crown Attorney’s Office to exercise their discretion to withdraw your domestic assault charge.
Some of the things the Crown Attorney’s Office takes into consideration when determining whether or not to drop a domestic assault charge include:
- whether or not you’ve have prior involvement with the police
- whether there is a reasonable prospect of conviction
- whether or not you have a prior criminal record
- whether this was a single incident rather than multiple incidents
- whether there was child present in the home
- whether there were allegations of stalking or controlling behaviour
- whether the complainant recants his or her statement
Depending on the particular circumstances of your case, a criminal defence lawyer can engage in pre-trial discussions with the Crown and argue for a withdrawal of your domestic assault charge based on the above criteria.
Can the Complainant be Charged for Taking Back their Statement?
Complainants or alleged victims who attempt to change their story open themselves up to potential criminal charges for misleading a police officer. Such potential criminal charges can include:
- Obstructing a peace officer (punishable by up to 5 years in jail);
- Obstructing justice (punishable by up to 10 years in jail); and,
- Fabricating evidence (punishable by up to 14 years in jail)
Canadian Domestic Violence Statistics:
In Canada more than 71,000 people were accused of domestic violence in 2016.
The most common criminal offence charge laid in alleged domestic violence incidents was assault, accounting for 77%. The majority of the accused were between age 25 and 34 years (34%) and 35 and 44 years (25%).
Men ages 25 to 34 made up 80% of those charged with criminal offences in a alleged domestic violence incident.
Criminal charges against an accused were more likely to be laid when the domestic violence was alleged in a dating relationship than if it happened in the context of marriage.
Significant Factors in Having Domestic Assault Charges Dropped
Relevant factors that the Crown Attorney’s Office may take into consideration when deciding whether or not to withdraw a domestic assault charges include:
Lack of prior police involvement; repeat incidents of domestic violence is an unfavourable aggravating factor for the accused;
- No prior criminal record;
- Lack of injuries;
- The single incident alleged as opposed to multiple incidents;
- No involvement of a weapon;
- No children present in the home;
- No allegations of choking; and
- No allegations of isolating, stalking or controlling behavior, amongst others unique to each fact scenario.
We Can Help To Withdraw Your Charges!
or CALL: (416) 658-1818
Favourable responses for the accused to the ChaCharged? Consult an Experienced Domestic Assault Lawyerged? Consult an Experienced Domestic Assault Lawyerquestions in the Ontario Domestic Assault Risk Assessment (ODARA) questionnaire.
The ODARA questionnaire is a risk assessment questionnaire taken by the complainant in reference to the accused, it provides insight into the offender’s level of risk compares with others.
Complainants or alleged victims who seek to have charges dropped or withdrawn are best served by consulting a criminal defence lawyer for the purposes of obtaining independent legal advice.
Great care must be taken when contacting the authorities and requesting criminal charges be withdrawn.
Why it is important to get the least restrictive bail available?
An individual charged with a domestic assault, who has no history of assaultive behaviour in the domestic context, will ordinarily be granted bail on terms that they have no direct or indirect contact with the complainant.
Ordinarily, they will be forced to move out of the spousal residence and reside with their surety or elsewhere.
In some cases, one spouse or common-law partner will attempt to use an allegation of domestic violence to exclude the other spouse or common-law partner from their shared residence as part of an overall tactic related to property and custody issues.
In such cases, the individual charged is banished from the shared residence home and contact with children must be arranged through a third party.
Depending on the seriousness of the allegations, an individual’s liberty may be significantly restricted so as to protect the complainant from further assaultive behaviour.
Regrettably, there have been a number of cases where individuals who were released on bail for domestic assault have committed further serious offences against the complainant.
These cases have created a highly sensitive politic in the courts when it comes to domestic assault allegations.
Accordingly, one can expect that the courts will fashion a release order that leaves little opportunity for the defendant to gain access to the complainant while on release.
A client who approaches Pyzer Criminal Lawyers, charged with a domestic assault, can expect that we will work to achieve the least restrictive bail available in their circumstances.
Criminal Offences That Can be Alleged in a Domestic Context?
When individuals find themselves charged with criminal offences in relation to allegations of domestic violence they can be confused by the criminal offence charges they are facing.
As explained, there is no specific criminal offence contained in the Criminal Code for “domestic assault, battery, domestic violence, simple domestic assault, domestic aggravated assault, domestic violence.”
In Canada, incidents involving allegations of violence in a domestic context do not have a specialized domestic violence criminal offences.
While there are differences in how the Crown Attorney’s Office prosecutes and how the Court views domestic violence allegations, the criminal offence charges an individual faces are no different in a domestic context than they would be if they were alleged outside of a domestic context.
The following are criminal offences individuals often face in relation to allegations of domestic violence:
Section 265 (1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
Level 1 assaults are the most common and refer to assaults that cause little to no physical harm to victims.
Assault with a weapon:
Section 267 Every one who, in committing an assault,
(a) carries, uses or threatens to use a weapon or an imitation thereof, or
Assault causing bodily harm:
Section 267 Every one who in committing an assault
(b) causes bodily harm to the complainant.
Level 2 assaults, or assault with a weapon or causing bodily harm, are those that involve carrying, using or threatening to use a real or imitation weapon
Section 268 (1) Everyone commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.
Level 3 assaults, also referred to as aggravated assaults, constitute those in which a victim is wounded, maimed, disfigured or whose life is endangered
Section 264.1 (1) Everyone commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat
(a) to cause death or bodily harm to any person;
(b) to burn, destroy or damage real or personal property; or
(c) to kill, poison or injure an animal or bird that is the property of any person.
Section 264 (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.
(2) The conduct mentioned in subsection (1) consists of
(a) repeatedly following from place to place the other person or anyone known to them;
(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
(c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or
(d) engaging in threatening conduct directed at the other person or any member of their family.
Mischief (under $5000 & over $5000):
430 (1) Every one commits mischief who wilfully
(a) destroys or damages property;
(b) renders property dangerous, useless, inoperative or ineffective;
(c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
(d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.
271 Everyone who commits a sexual assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.
Overcoming resistance to commission of the offence:
246 Every one who, with intent to enable or assist himself or another person to commit an indictable offence,
(a) attempts, by any means, to choke, suffocate or strangle another person, or by any means calculated to choke, suffocate or strangle, attempts to render another person insensible, unconscious or incapable of resistance, or
(b) administers or causes to be administered to any person, or attempts to administer to any person, or causes or attempts to cause any person to take a stupefying or overpowering drug, matter or thing, is guilty of an indictable offence and liable to imprisonment for life.
234 Culpable homicide that is not murder or infanticide is manslaughter.
229 Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause his death, or
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;
(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or
(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.
Charged? Consult an Experienced Domestic Assault Lawyer
or CALL: (416) 658-1818
What Does it Mean if the Crown proceeds by way of indictment?
If the Crown proceeds by indictment the potential sentence for the individual convicted of domestic assault ranges from a minimum sentence of an absolute discharge to a maximum sentence of five-year custodial sentence.
An indictable offence is more serious than a summary conviction offence.
Conviction of an indictable offence exposes you to greater penalties. If you are prosecuted by indictment, you are entitled to trial by jury for domestic assaults.
In the United States they use the distinction of a “felony assault” to distinguish more serious allegations from less serious allegations.
What Does it Mean If The Crown Proceeds Summarily?
Summary conviction offences encompass the most minor offences in the Criminal Code.
Unless a different penalty is specified, summary conviction offences are punishable by a fine of up to $5,000 or a six month jail sentence or both.
You cannot be fingerprinted for a summary conviction offence. In the United States they use the distinction of a “misdemeanour assault” to distinguish less serious allegations.
What are the Potential Consequences of a Domestic Assault Conviction In Toronto?
A criminal record carries a number of negative consequences for the accused, sometimes even more so for those convicted of domestic assault.
Employment, education and volunteer opportunities are significantly compromised as individuals with criminal records are often overlooked.
Limited travel ability, specifically into the United States of America.
With domestic assault cases, convicted individuals can be subject to additional restrictive conditions that prohibit them from contact with their partner or their children for the duration of their sentence and probation.
Even with the desire to be in contact, the courts can impose a restriction preventing the complainant and the accused from having contact if they deem that there is a serious risk of a future domestic incident.
Potential Sentences For Domestic Assault Convictions In Toronto:
Discharge (absolute or conditional)- a finding of guilt without a criminal record for the accused.
Suspended sentence- a sentence given that the accused person is not required to serve, the implementation of the sentence is order suspended by the trial judge.
Fine alone- a criminal record and a monetary fine that the accused must pay.
Fine, probation, prison- a monetary fine, a length of a prison sentence and a length of probation to be served following the prison sentence.
Prison and probation- a length of a prison sentence and a length of probation following the custodial sentence.
Prison and fine – a prison sentence is served and a monetary fine is imposed, but no probation for the accused following their prison sentence.
Intermittent sentence- a prison sentence served over the weekends. Fine, probation and intermittent- a prison sentence served on the weekends, with probation following and a monetary fine imposed as well.
Victim surcharge- once found guilty of a crime all individuals are subject to a victim fine surcharge.
Conditional Sentence: house arrest, a sentence served within the community.
Maximum Sentences: Indictment: 5-year prison sentence, Summary: 6-month custodial sentence or $5000 fine.
It is always in the best interest of an accused person facing a domestic assault charge or any other criminal charge to do everything that they can to avoid a finding of guilt and the consequences that accompany a conviction.
Relevant Principles on Sentencing
- Degree of Planning and Premeditation;
- Duration of the Offence;
- Reasons for the Offence to conclude;
- Recency of the Offence;
- Offender’s Role in Offence;
- Breach of Trust;
- Status of the Victim including:
- Harm or Risk of Harm on Victim;
- Victim Under 18 Years of Age;
- Public Abhorrence of Type of Crime;
- Prevalence of This Type of Crime in the Community;
- Degree of Cooperation with Police;
- State Misconduct (including Police Misconduct).
Section 718.2(a) provides that “a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender”.
Other factors and principles are listed at s. 718.2 of the Criminal Code:
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor,
(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization,
(v) evidence that the offence was a terrorism offence, or
(vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act
shall be deemed to be aggravating circumstances;
Specialized Domestic Violence Courts:
Domestic assault charges are so common that there are specialized courts that address criminal offences stemming from domestic violence incidents.
These domestic matters are held together on specific days at specific times at Domestic Courts in downtown Toronto and the Greater Toronto Area (GTA).
The Specialized Domestic Violence Courts in Toronto and the GTA include:
- Old City Hall- Domestic court every Monday and Wednesday at 2pm in courtroom 114
- College Park-Domestic court Every Friday at 10am and 2pm in courtroom 505
- 2201 Finch Domestic Court every Monday and Wednesday at 2pm in courtroom 202
- 311 Jarvis in the Integrated Domestic Violence Court every other Friday
- Newmarket- Domestic Court every Tuesday at 9:30 am in courtroom 102
At Pyzer Criminal Lawyers we have extensive experience defending allegations of domestic violence in all of the specialized courts in all jurisdictions in Toronto and the Greater Toronto Area. We are dedicated to successfully defending individuals facing allegations of domestic assault!
Don’t Let Domestic Assault Make you a Criminal
or CALL: (416) 658-1818
If you are charged with a crime in the GTA, Contact Pyzer Criminal Lawyers