Domestic Assault Penalties: A Lawyer’s Perspective on the Consequences

When people are convicted of domestic assault, they can suffer dire legal, social, and often emotional consequences. Up to 14 years in prison, a permanent criminal record, damage to your reputation and personal relationships, and potential restrictions on your movements, employment and actions can all result from a conviction of domestic assault.

In Canada, assault is defined in section 265(1) of the Criminal Code of Canada. In essence, making any unconsented physical contact or engaging in any physical action that causes someone to react defensively without any actual physical contact is assault. Domestic assault is not specifically defined in the Code, but section 718.2(a)(ii) makes it a mandatory aggravating factor for sentencing.

From a prosecutor’s decision whether to agree to your release from custody, whether to indict and to potential plea negotiations through sentencing by the court, domestic assault cases encounter a multitude of variables and possibilities. If you have been accused of domestic assault in Calgary, the lawyers at Bulwark Law will use their experience with domestic assault cases and knowledge of local police and prosecutorial procedures to guide you through the process toward your best possible outcome.

Understanding Domestic Assault In Calgary

Definition of Domestic Assault

According to the Alberta Domestic Violence Handbook, domestic violence is also referred to as domestic assault, and uses the following definition for domestic violence:

“Domestic violence is defined as any use of physical or sexual force, actual or threatened, in an intimate relationship. It may include a single act of violence or several acts forming a pattern of abuse through the use of assaultive and controlling behaviour.

General Assault vs Domestic Assault

Most of the actions defined by the Handbook as domestic assault are the same as general assault. The difference is that domestic assault involves intimate relationships, specifically:

• current or former married relationships
• dating relationships
• common-law relationships
• co-parenting relationships

Domestic assault can also involve relationships with other family members.

Penalties for Domestic Assault in Calgary

One possible outcome for domestic assault charges is through a Peace Bond, which results in the withdrawal of your charges and no criminal conviction.

You can learn more about Peace Bonds from our previous article.

Section 718.2(a)(ii) of the Criminal Code makes domestic assault charges an aggravating factor for sentencing. Sentences for domestic assault vary and depend on a multitude of factors, such as the kind of assault (physical, sexual, psychological), use of a weapon, the degree of bodily harm to the victim, and whether or not the assault was a first offence. Penalties for a conviction of domestic assault include:

• Absolute or conditional discharge — the finding is “guilty,” but there is no conviction, criminal record, or time in jail.
• Suspended sentence — the person is placed on probation for some time, and the conviction is part of a criminal record.
• Fines — the person must pay a fine, and the conviction is part of a criminal record.
• Conditional Sentence Order — the person is given a serious sentence involving house arrest and other severe conditions. Often referred to as a “jail sentence in the community”, the consequences for breaching a Conditional Sentence Order are significant.
• Jail time — the person may go to jail for short or more extended periods of time. Short jail terms often are followed by probation under court-ordered conditions for up to three additional years.
• Intermittent sentence — the person physically reports to prison and serves their sentence on an irregular basis, such as on weekends (only for jail terms of 90 days or fewer).
• Maximum sentence — the maximum punishment for assault (not aggravated) is up to five years of prison time. A summary conviction may result in a six-month custodial term or a $5,000 fine. In aggravated assault cases, jail time can be up to 14 years. In aggravated sexual assault cases, the maximum sentence is life in prison.

In Alberta, aggravating factors in sentencing for domestic assault include:

• When there is a history of spousal abuse
• That a person previously assaulted the same victim
• If the person has a criminal record for violence or has related convictions
• If the victim was a spouse or common-law spouse — that there has been a breach of trust
• When there were serious injuries to the complainant
• That the assault was planned or pre-meditated
• That the assault involved the use of a weapon
• If children witnessed the assault or were present when the assault occurred
• That the offence occurred in the sanctity of the home
• Any degree of degradation of the victim
• Whether the offence involved separate acts occurring over some time
• An indication of no remorse on the part of the offender
• If there was a home invasion or some other crime committed during the assault

In Alberta, mitigating factors for domestic assault include:

• An early guilty plea
• The youthfulness of the accused
• That there is no previous violence on a criminal record or a complete lack of a criminal record
• The remorsefulness of the accused
• Efforts that the accused have made to better themselves since the incident

Beyond The Immediate Legal Consequences

The punishment for a conviction of domestic abuse can go far beyond fines and jail time:

• Current and possible future employers will often react negatively to your conviction, affecting your employability and ability to earn a living.
• Professional licensing organizations may view your conviction negatively and deny you a license.
• You may lose custody of your children or have limited access to them.
• The court may restrict your ability to travel and limit the places you can go, such as through terms of Probation or a Conditional Sentence Order.
• Even after the conclusion of your sentence, you may be prevented from entering other countries.
• You may be required to participate in intervention programs.
• The societal stigma of domestic abuse may cause many people, including friends and family, to look upon you as a social pariah.

The Role of Law Enforcement in Domestic Assault Cases

In October 1990, in consultation with Alberta police commissions, the Alberta Solicitor General’s department issued nine family violence policing guidelines:

• Police shall assign the same priority to calls involving incidents of family violence as to any call where the safety of a person is being threatened.

• During the course of their investigation, police shall interview the complainant and the alleged abuser separately.

• A charge shall be laid when police officers have reasonable and probable grounds to believe an offence has occurred. The decision should not be dependent on the complainant’s wishes.

• When a charge has been laid, the police shall endeavour to obtain a signed statement from the complainant, as well as medical reports and photographs of injuries when injury is evident.

• Police shall offer assistance to the complainant in arranging medical attention, transportation to a safe place, and referrals to legal and community services.

• Police shall complete and file a report on all incidents of family violence regardless of what subsequent action was taken.

• Police shall make telephone contact with the complainant within one week after responding to a call to ensure the complainant’s safety and to answer any questions regarding court proceedings.

• On a quarterly basis, police shall submit a Family Violence Report to the Department of Justice.

• The police shall receive specialized training on family violence.

In Calgary, Police Service street personnel initiate all domestic violence investigations. Their reports are sent to the Domestic Conflict Unit and its specialized investigators. The Unit assesses each case for high risk, a high level of danger, or repeated behaviour.

Protect Your Rights

The potential impact of a domestic assault conviction can be devastating. With so much at stake, you want to ensure you have every opportunity to minimize the consequences of being arrested and charged with this crime.

To give yourself the best chance of a positive outcome in your case, you need the services of an experienced criminal defence lawyer. At Bulwark Law in Calgary, our lawyers specializing in domestic violence cases will leverage our keen knowledge of regional and local police and prosecutorial practices to protect your rights.

We will negotiate on your behalf to help you avoid time in jail, secure a favourable plea bargain, or even dismiss your case. You can contact us online or at 403-678-7360 to schedule a free consultation.