Domestic Assault Charges: A Lawyer’s Guide to the Charges

If you have been charged with domestic assault in Calgary, you will likely be facing a series of potentially life-altering events for which you need to be prepared. For example, if you are allowed bail or interim release, your freedom will come with conditions that limit direct and indirect contact with your partner and your ability to return to your home. In addition, Homefront, a third-party agency, will be contacting the partner whom you have been accused of assaulting.

To protect your rights and to find guidance through the complex and stressful road ahead, you need to speak with a lawyer right away. In Calgary, the experienced lawyers at Bulwark Law can help relieve your stress by explaining the sequence of events that typically follow a charge of domestic assault and by helping you plan to manage present and future challenges.

DEFINING DOMESTIC ASSAULT

The Criminal Code of Canada defines assault in Section 265(1) as follows:

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.

Simply stated, in Canada, you have committed assault if you have engaged in any unconsented physical contact or any physical action that causes someone to react defensively without any actual physical contact.

Although domestic assault is not specifically defined in the Criminal Code of Canada, prosecutors recognize domestic assault as any abuse that happens between people in an intimate relationship. Those relationships include current spouses, former spouses, and common-law and dating partners, whether opposite- or same-sex. Relationships between parents or legal guardians and children are also considered domestic. Section 718.2(a)(ii) of the Criminal Code of Canada 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, a person under the age of 18, or abused by a position of trust or authority.

TYPES OF DOMESTIC ASSAULT

Domestic assault can occur as one incident or a pattern of domestic abuse and falls into one or more of four basic types:

• Physical assault includes any unwanted physical touching such as hitting, kicking, shoving, pushing, or restraining. Physical assaults often increase in severity and frequency over time. The Criminal  Code considers assaults to be more serious under certain conditions. For example, if the perpetrator brandishes a deadly weapon and is found guilty, the potential sentence increases. When the perpetrator wounds, maims, disfigures or endangers the life of the victim, it is deemed aggravated assault.
• Offences, including criminal harassment or stalking, making lewd and harassing phone calls, voicing threats, or trespassing during the night, are forms of psychological assault that can have a domestic element. Although victims may not present with physical injuries, they can often suffer verbal and emotional abuse, involuntary financial dependence, intimidation and threats, restrictions on their mobility, and isolation from friends and family.
• 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 of a sexual nature or where the sexual integrity of the alleged victim is violated.

• Those who commit domestic assault often engage in attacks against property and pets, which can include destroying the victim’s treasured possessions and/or abusing or killing the victim’s beloved animal companions. Such attacks essentially create both physical and psychological abuse. Perpetrators of attacks on property and pets may be charged with criminal mischief or animal cruelty.

THE LEGAL PROCESS

The Police

An accusation of domestic assault usually results from one of two circumstances:

• The police were called to a domestic argument, witnessed actions they believed amounted to domestic assault and made an arrest.
• A person filed a complaint with police claiming to be a victim of domestic assault.

(If you are arrested, you should cooperate fully with the police, but you should make no statements. You should request to speak with a lawyer as soon as you are allowed.)

To help the Crown prosecutor decide whether to charge someone with the crime of domestic assault, police will gather evidence. Evidence may include statements from both the accuser and the accused, statements by other witnesses, property damage, weapons found at the domicile, any visible injuries to either party or pets and any other items police deem significant.

The Prosecutor

The Crown prosecutor must prove the charge of domestic assault beyond a reasonable doubt, including:

• That the alleged victim was in a domestic relationship with the accused (i.e., family member, romantic relationship, spouse or common-law partner)
• That the accused directly or indirectly applied force to the alleged victim without consent
• That the application of force was intentional, or through the use of words or actions, the accused threatened to apply force and could carry out the threat, or the accused accosted the alleged victim while holding a weapon or imitating a weapon.

Based on the evidence, the prosecutor will decide if the charge of domestic abuse has a reasonable likelihood of conviction and is in the public interest to prosecute. The prosecutor does not have to be satisfied that the charges are made out beyond a reasonable doubt at this stage – their standard to proceed is a lower one.

If You Are Charged

If you are charged with domestic assault, you should immediately contact a lawyer familiar with domestic assault cases. The experienced lawyers at Bulwark Law in Calgary can help by convincing the prosecution that you pose no threat of further violence to the alleged victim so that they grant you bail or interim release. Your freedom will usually be conditional upon some or all of the following:

• You may not have any contact with the alleged victim, directly or indirectly.
• You may not return to your home.
• You may not go to the alleged victim’s workplace.
• You may have to surrender all your firearms, ammunition, and/or explosives and your firearms licence.
• If alcohol or drugs have been an aggravating factor, your consumption may be restricted.
• If you specifically consent to domestic violence treatment services, you may have to attend all treatment appointments and comply with related conditions.

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

In addition, we can discuss with the prosecution the possibility of alternatives to prosecution, such as diversion, alternative measures, extrajudicial sanctions or a Peace Bond.

PENALTIES for CONVICTION of DOMESTIC ASSAULT

Legal Penalties

The legal penalties for domestic assault can be as little as a discharge or fine and as much as 14 years in jail. If you are convicted, your penalties will depend upon the specific circumstances of your case.If the Crown prosecutor decides to proceed by summary conviction (for less serious offences), you may have to pay restitution to the victim. If the Judge decides your crime does not warrant a jail sentence, you may receive a suspended sentence and remain under probation or a conditional sentence and remain under house arrest.

For more serious offences, the Crown prosecutor may proceed with an indictment, and you will likely serve time in jail if convicted. For charges of sexual assault, assault causing bodily harm and similar charges, you may be imprisoned for up to 10 years. For aggravated assault, your prison time can be up to 14 years.

If you are convicted of one of the more serious forms of domestic assault, you may also receive a DNA order or firearms prohibition. A DNA order would require you to submit samples of your DNA to a national database that can be accessed by police officers across Canada.

Long-Term Consequences

The long-term consequences of a conviction for domestic assault can be daunting. You may face fines, jail time, a permanent criminal record, loss of reputation, damage to family relationships, public reporting of the case and restrictions on mobility and actions.

DEFENDING against DOMESTIC ASSAULT CHARGES

Consent

Remember that the prosecution is burdened to prove your guilt beyond a reasonable doubt. To do so, they must prove that their partner did not consent. However, if, for example, you and your partner agreed to play together in rough sex, the judge may find that the Crown has not proven the lack of consent.

Self-Defence

Many who are accused in assault cases claim self-defence. However, changes in the law limit the successful use of this defence. Several criteria set out in theCriminal Code must be met:

• Force was used against the accused, or the accused had reasonable grounds to believe that force would be used against them.
• The accused’s response to the threat was to defend or protect the accused from the threat or use of force.
• The response of the accused to the threat was reasonable in the circumstances. A court will consider the following factors in determining what was reasonable in the circumstances, including:
  • The history of the two parties
  • Whether either party was intoxicated
  • The size, age, gender and physical capabilities of the parties
  • The nature of the force being used against the accused
  • Whether the accused had other ways to respond
  • Prior events where force was used
  • Whether the responding force was proportional to the initial force
• Use of force by the accused was a reflex or an accident (remember that the prosecution must prove the accused intended to use force)

PROTECT YOUR RIGHTS

If you have been accused of domestic assault in Calgary, the consequences of delayed or inadequate representation can be devastating. You need a lawyer experienced in defending clients accused of domestic assault who is knowledgeable about regional and local police and prosecutorial practices to 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 at 403-678-7360 to schedule a free consultation.