Defining Domestic Assault: A Lawyer’s Explanation

Domestic assault is a very serious offence. If you face domestic violence charges, you need to speak with a lawyer right away. In Calgary, the experienced lawyers at Bulwark Law can help guide you through what will likely be complicated and difficult days ahead. We will negotiate on your behalf with the prosecution to protect your rights and make this stressful time as manageable as possible for you.

What is Domestic Assault?

Domestic assault is any abuse that happens between people in an intimate relationship. Intimate relationships include not only current spouses but also former spouses and common-law and dating partners. These relationships can be opposite- or same-sex. Intimate relationships also include those between parents or legal guardians and children.

Although domestic assault is not expressly defined in the Criminal Code of Canada, section 718.2(a)(ii) makes it a mandatory aggravating factor when it comes to sentencing if the victim of abuse was a spouse or common-law partner at the time of the assault, or a person under the age of 18. Section 718.2(a)(ii) makes it a mandatory aggravating factor when sentencing for abuse of a position of trust or authority.

Kinds of Domestic Assault

Domestic assault can occur as one incident or a pattern of domestic abuse.

• Physical assault involves some kind of unwanted touching, such as hitting, kicking, pushing, and restraining. Whether the victim is physically assaulted occasionally or habitually, the assaults often increase in seriousness and frequency over time.
• Psychological assault victims may not exhibit physical injuries. Still, they can experience verbal and emotional abuse, involuntary financial dependence, intimidation and threats, restrictions on their mobility, and isolation from friends and family. Some types of psychological assault are criminal offences under the Criminal Code of Canada. These include making threats, stalking or criminal harassment, making indecent and harassing phone calls, and trespassing at night.
• Sexual assault occurs when one partner forces sexual acts on the other partner to which the other partner, the victim, does not consent. Section 271 of the Criminal Code of Canada defines sexual assault as any touching of another person without consent where the touching is sexual or where the sexual integrity of the alleged victim is violated.
• Attacks against pets and property effectively combine physical and psychological abuse. They include hurting or killing the victim’s cherished pet(s) and damaging the victim’s possessions. Those who commit such acts can be charged with animal cruelty or criminal mischief.

What Happens When You Are Charged with Domestic Assault?

If you are charged with domestic assault, you should immediately contact a lawyer familiar with domestic assault cases. You may be granted bail or interim release, but only if the prosecution believes you do not pose a threat to commit further violence upon the alleged victim or complainant. If you are granted bail or interim release, your freedom will likely come with conditions. The prosecution will consider all these restrictions:

• You may be prohibited from contacting the complainant directly or indirectly.
• You may be prohibited from returning to your home.
• You may be prohibited from going to the complainant’s workplace.
• You may be required to surrender all your firearms, ammunition, and/or explosives and your firearms licence.
• If alcohol or drugs have been an aggravating factor, according to the complaint, you may be restricted in your consumption. (Note that the practicality of such a restriction will also be considered.)
• If you expressly consent to domestic violence treatment services, you may be required to attend all scheduled treatment appointments and comply with related conditions.

In addition, police may provide investigation and intervention services, particularly if they believe the complainant may be at serious risk of further violence. Police input will also factor into considering your bail or interim release. Also, In some jurisdictions (including Calgary), Homefront, a third-party agency, will contact the complainant.

The experienced lawyers at Bulwark Law in Calgary can help by negotiating the conditions of your bail or interim release with the prosecution and clarifying what you must do to comply with them. In addition, we can discuss with the prosecution the possibility of alternatives to prosecution, such as diversion, alternative measures, or a Peace Bond. Just because you have been charged with assault does not mean you will get a criminal record.

If you are released from custody, the complainant will be provided a copy of any conditions of your release. The police will also be informed of these conditions.

How Will the Prosecution Proceed?

If you are accused of domestic assault, the prosecution will take you to trial only if they believe they can win a conviction. They will make that judgement after listening to the complainant and any other potential witnesses, including any police who have knowledge of the case, and in general examining whatever evidence may be available.

Before trial, the prosecution will prepare witnesses, including the complainant. As part of this preparation, either Crown counsel or a Crown Witness Coordinator will try to make sure certain procedures are implemented:

1. They will try to meet with the complainant as soon as possible after charges are brought forth and before any proceeding during which the complainant may be called to testify. They will review the complainant’s police statement with them, determine if the complainant has any new or inconsistent information, and, if so, relay that information to Crown counsel. (Crown counsel must also alert defence counsel immediately if new information, or information inconsistent with a previous statement, is provided by the complainant or any other witness.)
2. They will describe the roles of Crown counsel and defence counsel at trial.
3. They will explain the purpose of the Crown Witness Coordinator.
4. They will clarify the role of a witness in court and emphasize that the witness must testify truthfully.
5. They will determine the reliability of the witness.
6. They will ensure the complainant is aware of any release conditions imposed on the accused and inquire whether the complainant has any concerns that the accused may not comply with them.
7. They will confirm that the complainant has been made aware of available community services.
8. They will respond to questions the complainant may have.
9. They will ensure the complainant knows they can file a Victim Impact Statement.

What Are Some Possible Defences Against a Charge of Domestic Assault?

Remember that the prosecution will not have to prove any substantial force. If they can prove you intentionally touched or contacted the complainant, that will be sufficient to satisfy the actus reus or “guilty act.” At Bulwark Law, we have used several defences successfully with our clients, most commonly:

• The force was part of a consensual fight. To prove an assault offence beyond a reasonable doubt, the prosecution must establish that there was no consent by the complainant or the party on whom the force was exerted. Consent can be verbal or implied based on the circumstances of the use of force. A consensual fight is not a criminal offence. Keep in mind that there can be no consent if a weapon was used or the force resulted in any bodily harm.
• The action that is the basis for the complaint was self-defence. You were acting in self-defence if you used or threatened to use force to protect yourself or another person. In some cases, self-defence may be used to protect property. If you acted in self-defence, you essentially had a legal justification for committing the assault. Nevertheless, your use of force must have been reasonable in the circumstances.
• Your use of force was a reflex or an accident. Remember that the prosecution must prove you intended to use force.

The Consequences of a Domestic Assault Conviction

Various punishments that may result from these charges include jail time, a suspended sentence (no jail, but there are conditions you must comply with under what is called a term of probation), a conditional sentence (jail sentence served in the community, like house arrest, with strict conditions), a fine (although this is unlikely), and/or restitution (an amount ordered to be paid to the victim as compensation for the harm caused).

Because assault is considered a violent crime, if you are convicted of domestic assault, the consequences can be harsh. To begin with, the conviction will become part of your criminal record. Sentences can range from a monetary fine (a rare occurrence) to a period in jail.

If the prosecution proceeds by summary conviction, the maximum sentence is two years less than one day of incarceration. If the prosecution proceeds by indictment, the maximum sentence is five years imprisonment for a simple assault contrary to section 266 of the Criminal Code of Canada.

Under the Criminal Code of Canada, assaults are more serious under certain conditions. For example, if you brandished a weapon during the physical assault, your potential sentence increases.If you committed an aggravated assault, one in which the complainant or other victim was wounded, maimed, disfigured or had their life endangered, the maximum prison term becomes 14 years.

In the end, your sentence will be determined by what the Court views as aggravating factors (those factors that increase the gravity of your offence) and mitigating factors (those factors that lessen your moral guilt).

You Need the Right Lawyer

If you have been accused of domestic assault in Calgary, only a lawyer experienced in defending clients accused of this offence and knowledgeable about regional and local police and prosecutorial practices can provide the best defence for you. At Bulwark Law, we want to hear your side of the case, negotiate on your behalf, and help protect your rights. You can contact us online or call us at 403-678-7360 to schedule a free consultation.