I have been practicing criminal law in the Greater Toronto community (Brampton, Newmarket) for over 30 years. The crime of domestic assault is not new, but recently the infamous Ray Rice and Oscar Pistorius cases have generated a more profound interest in the subject.

Intimate relationships between partners can explode into threatening and assaultive behaviour. Voices are raised. Concerned neighbours call the police to prevent violence or a perpetuation of the violence. The police arrive, assess the situation, and ordinarily arrest the male combatant. Women are also charged with domestic assault, but less often. Historically, police have learned that minor altercations can precipitate fatal confrontations between partners- so-called crimes of passion. No police officer wants to exercise discretion at the scene of a minor confrontation, only to learn that upon his departure that confrontation escalated into a homicide.

Thirty years ago in bail courts throughout Ontario, there were always a disproportionate number of cases of individuals (generally, men) charged with domestic assault. What has happened in the last decade is that cases of domestic assault (criminal harassment and threatening) are prosecuted more vigorously. The rules of evidence (hearsay) have been made more flexible so that Complainants find it more difficult to recant and sabotage the prosecution. Crown Attorneys apply a consistent protocol to protect complainants and promote reconciliation through counseling. The Courts (Toronto, Brampton, Newmarket) all have Domestic Courts dedicated to the issue. At the Ontario Court of Justice at 311 Jarvis Street, there is an integrated Domestic Violence/Family court that focuses on both violence within the family, and support and access issues.

The most significant concern that most of my clients, male or female, express, when they are charged with domestic assault, is that they want to avoid a criminal record. In the least serious cases, on a first arrest for Domestic Assault, a Peace Bond can be obtained (often coupled with counseling). Where the assaultive behaviour is more significant, so long as there is no bodily harm to the Complainant, the Crown Attorney will ordinarily agree upon a Conditional Discharge (no criminal conviction) and counseling. Where the domestic assault is more serious (assault bodily harm or some cases of criminal harassment), the Crown Attorney will work to obtain a conviction and vigorously prosecute the case. Jail sentences for defendants who serially abuse their partners are very common now.

Ian Kostman, Barrister  (September 2014)