Domestic Assault Lawyers

What is Domestic Assault?

Domestic assault refers to assaults committed against persons of the same household and current or former intimate partners. Assault describes any intentional non consensual application of force, ranging from implicit threats to bodily harm resulting in hospitalization.

Offences to which domestic assault charges are often appended include:

• Simple assault
• Uttering threats
• Assault causing bodily harm
• Assault with a weapon
• Aggravated assault
• Sexual assault

Most domestic assault charges result from heated domestic exchanges. When the complainant calls the police for help calming the situation, the police instead arrest their partner, recommending domestic assault charges to Crown Counsel. Though domestic assault is not a specific criminal offence, allegations of domestic assault are treated differently and punished more severely.

Domestic assault charges may be laid in the absence of physical violence. Simply the intent to use force is required. But while the use of force need not be physical, the use of words alone may not amount to a domestic assault charge.

Assault charges require a gesture indicating your will and ability to follow through with a threat. The victim must also reasonably believe you will carry out your intent to use physical force.

Domestic Assault in the Criminal Code of Canada

While domestic assault is not a specific offence, the assault to which the charge is necessarily appended is punishable under multiple offences in the Criminal Code of Canada. 

Section 265 of the Criminal Code states that a person commits an assault when

1. without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
2. 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
3. while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

Section 267 of the Criminal Code classifies assault based on the way it is committed or the result of the application of force.

Referring to assault with a weapon or assault causing bodily harm, Section 267 of the Criminal Code states that every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on summary conviction who, in committing an assault

1. carries, uses or threatens to use a weapon or an imitation thereof,
2. causes bodily harm to the complainant, or
3. chokes, suffocates or strangles the complainant.

Domestic Assault Charges

While domestic assault and assault are the same in law, differences arise in how these charges are prosecuted and progress through the courts.

Domestic assault allegations are called “K-files” in British Columbia, where they are identified with the letter K on court files. As with any other assault, K-files can be charged as a simple, weaponed, violent, or aggravated assault under the Criminal Code. Such files are handled by a specialized unit within Crown Counsel offices and, in some jurisdictions, courtrooms specifically designated for domestic assault cases.

Upon an allegation of domestic assault police will invariably proceed to recommend charges — regardless of the complainant’s wishes. Officers are granted little discretion to provide warnings, and complainants have no real say in whether you’re charged or, if you were charged, your charges are dropped.

Indeed, it’s Crown Counsel, not police nor complainants, who lay charges in British Columbia. In cases of domestic assault, Crown Counsel generally proceeds with prosecution, even if the complainant does not wish to cooperate with the investigation. Complainants therefore often seek legal advice to determine how to best navigate the criminal process and liaise with Crown Counsel.

Domestic Assault Bail Conditions

So long as you lack a history of violence (domestic or otherwise), the court can usually be satisfied that releasing you from custody before trial is safe and appropriate. Your problem then becomes navigating the restrictive bail conditions imposed on your release.

Your bail conditions will likely require you to:

• Avoid all contact with the complainant
• Abstain from all direct or indirect communication with the complainant
• Avoid the complainant’s residence, business, school, place of worship and other frequented establishments
• Surrender all weapons and firearms and any related authorizations
• Not be in possession of any weapons, including knives (except for the consumption of food)
• Abstain from alcohol and non prescription drugs
• Demonstrate law abiding behaviour
• Abide by a curfew
• Provide your current address to the court (and notify the Court of any address changes)

Factors that may affect your bail conditions include your:

• Alleged assaultive behaviour
• Likelihood of attending court
• Criminal history
• History of drug and alcohol use 
• Physical state
• Mental condition
• Employment situation
• Living situation
• Standing in the community

You will not be allowed to return to your home if the complainant lives with you — even if you own the property and the complainant merely lives with you. This means that you will not be able to coordinate bill and utility payments or financial arrangements.

The no contact order will also likely block you from contacting or visiting your children pending the trial or settlement of your case. This may not occur for many months.

In certain circumstances bail conditions can be varied, but this takes time and negotiations with the Crown. Bail conditions must be complied with unless and until they are varied lest you be charged with breaching bail and jailed.

Penalties for Domestic Assault

Penalties for domestic assault depend on the type (such as simple, aggravated, weaponed, sexual, or violent), manner and toll (physical or emotional) of the assault to which the charge of domestic assault is appended. In determining what sentence to seek, the Crown will assess the extent of the assaultive behaviour and the circumstances from which it arose. Domestic assault is considered an aggravating circumstance on sentencing and can lead to more serious penalties than non domestic charges.

Consequences for Domestic Assault

• Up to 18 months’ imprisonment if charged summarily
• Up to ten years’ imprisonment if charged indictably
• Automatic arrest and jailing until your bail hearing
• Bail conditions forbidding your return to your residence (regardless of whether the complainant requests otherwise)
• Bail conditions forbidding contact with the complainant or their children (regardless of whether the complainant requests otherwise)
• Possible revocation of immigration status
• Possible registration in the National DNA Databank for sexual assaults
• Possible registration in the National Sex Registry for sexual assaults
• Possible compensation to victim
• Probation
• Criminal record

Defending Domestic Assault Charges

Domestic assault allegations require immediate legal attention. Crown Counsel will not permit the victim to drop charges nor your case to be withdrawn. Outcomes in domestic assault cases can depend as much on the circumstances of your case as on the lawyer you hire. Retaining Pender Litigation puts not only a skilled domestic assault lawyer by your side, but our entire team at your back, bolstering your defence with our collective insight, experience and expertise. 

Ways our firm can assist you include:

• Diverting your case from the court process via an alternative measures program
• Diverting your case from the court process via peace bond
• Defending you at trial
• Sentencing

Alternative measures programs

You may be considered for an alternative measures program on your first offence if the charges against you are minor and you admit to and take responsibility for your actions. Overseen by community probation offices, alternative measures programs divert your case from the court process. Alternative measures programs give you the opportunity to make amends through an agreed upon set of steps. If these steps are taken, your charges will be withdrawn and you will not receive a criminal record.

Alternative measures may include:

• Compensation for the loss or damage
• An apology
• Community service work
• Culturally-based practices for Indigenous people

Peace Bonds

For less severe domestic assaults, you may alternately enter a peace bond. A statutory peace bond may be used when you enter an agreement in return for the Crown Attorney withdrawing charges. Peace bonds are not an admission of guilt, but an acknowledgment the complainant had reasonable grounds to fear for their safety, or the welfare of their child, intimate partner, or property. Upon signing a peace pond, your charges are withdrawn and you do not gain a criminal record.

Statutory peace bonds require you to agree to certain conditions for a length of time not exceeding one year. Conditions may include:

• Law abiding behaviour
• Surrendering weapons and firearms
• Attending anger management counselling
• Abstaining from alcohol
• Avoiding direct and indirect communication with the victim
• Avoiding the victim’s residence, business, school, place of worship and other frequented establishments
• Reporting to a probation officer

Domestic Assault Trial Defences

Should your case go to trial, defences to domestic assault charges include (but are not limited to):

• Challenging the complainant’s credibility: Many allegations of domestic assault are inflated or invented. A careful examination of the complainant’s credibility and other evidence, including witness testimony, video footage, and phone and electronic records, may be sufficient to level the charges against you.
• Self defence: To successfully argue self defence, you must demonstrate 1) force was used, or would foreseeably be used, against you; 2) the sole purpose of your response to the force or threat of force was defending yourself; and 3) your response was reasonable and proportionate given the context from which it arose.
• Defending another person: Provided the response was reasonable and proportionate, threatening or using force to defend another person should not yield a criminal conviction.
• Defending your property: Provided the response was reasonable and proportionate, threatening or using force to defend your property is sometimes appropriate. 
• Complainant consent: While one cannot consent to physical harm, most domestic assault charges are laid in absence of physical violence. Crown Counsel must demonstrate beyond a reasonable doubt that the complainant did not consent to the accused’s use of force. 
• Accidental use of force: Assault is the intentional application of force. So long as it was not reckless, an unintentional or accidental application of force should not yield a criminal conviction.
• Violations of the Charter of Rights and Freedoms: Speaking with the police can be detrimental to your case as your statements can be used as incriminating evidence at trial. Charter applications, motions that detail the ways in which police violated your Charter rights in a criminal investigation, can be used to seek the exclusion of this evidence. Violations that may be argued in your defence include searching your car without permission and not letting you speak with a lawyer.
• Innocence: Crown Counsel must demonstrate beyond a reasonable doubt that you were indeed there and committed, or intended to commit, the assault. Assault charges require a gesture indicating your will and ability to follow through with a threat. The victim must also reasonably believe you will carry out your intent to use physical force.

Sentencing

Domestic assault is considered an aggravating circumstance on sentencing and can lead to more serious penalties than non domestic charges. If your case cannot be resolved by way of an alternative measures program or peace bond, we can negotiate sentencing options with the Crown, helping you to avoid a criminal record, or ensuring your freedom is minimally curbed upon sentencing.

Learn About Domestic Assault

• What is Domestic Assault?
• Domestic Assault in the Criminal Code of Canada
• Domestic Assault Charges
• Domestic Assault Bail Conditions
• Penalties for Domestic Assault
• Defending Domestic Assault Charges