As Domestic assault lawyers we know assault charges are treated seriously and will not be waved off as simple misunderstandings. Where you or a loved one has been arrested for a domestic assault or are being held in a bail hearing it’s is important to seek qualified legal advice as soon as possible.
A domestic assault as an assault between two or more people that have a relationship with each other, dating, married, common law or have a family relationship.
Where an assault occurs between people who have a relationship with each other, the police are directed to make arrests and remove the accused from the home and away from the other party. The police will take the accused into custody until the accused can be brought before a justice for a bail hearing.
In defending domestic assault charges people ask what will be the outcome? Although we cannot predict any court case usually we see one of these three outcomes for domestic incidents:
- the charges are withdrawn due to legal technicalities
- an agreement is arranged with no criminal record or going to trial
- the case goes to trial
Although the courts and crown attorneys have a strict policy on domestic assaults, they do have some discretion as to how to proceed with the charge. When the crown attorney reviews the case prior to trial they are looking at:
- was the assault minor or serious in nature.
- is there any history of previous domestic assaults, or police involvement.
- what is the background of the accused, are they working, position in the community and what is their reputation.
- what has the accused done since the assault, e.g. alcohol or anger management counselling.
- what are the wishes of the victim, e.g. does the victim want the accused back in the family?
As your lawyer we consider your position, as to do you want to resolve the matter or is this a case where you have been wrongly accused and the matter should be withdrawn or proceed to trial?
As with many criminal charges experience counts, knowing the people involved, the officers, crown attorney’s and judges is important to the ultimate results for domestic assault charges. Different crown attorneys and judges are more open minded to resolutions and withdrawals than others and as experienced lawyers we understand these issues.
Showing to the crown attorney that the situation that the victim and accused wish to reconcile will be an important factor to the crown. The crown attorney will be looking to see is there a risk of further domestic assault.
As a domestic assault lawyers our job is to show the crown attorney and court that the incident was:
- an isolated incident
- that it was totally out of character for the accused and
- that the situation will not repeat itself and
- have the charges dropped.
As well the courts will want us to make the accused aware of the serious nature of these charges. Where you have been charged, call our offices to speak to a lawyer today.
The Criminal Code of Canada defines domestic assault as; A domestic assault occures when,
- Without the consent, force is intentionally applied,
- Directly or indirectly assaulting another person, or he or she
- Attempts or threatens, by an act or a gesture,
- To apply force to another person if that other person to believes upon reasonable grounds that the person has the ability to commit that assault,
- Or by a person who openly wears or carries a weapon or an imitation thereof, and that person accosts or impedes another person or begs.
There are many levels of an assault from a simple assault called a “common assault”, assault causing bodily harm to spousal or domestic assault. The domestic assault does not have to be injury or physical harm caused, where there is contact it maybe minor in nature, or it maybe an act, gesture or threat.
When the police respond to a domestic assault and there is evidence that an assault has occurred, the police must arrest the accused and take them into custody.
Even if the assault is very minor in nature, the police must arrest the accused and remove them from the home.
A domestic assault maybe;
- A physical assault on another person
- Acts or gestures implying an assault
- Words or Threats
- Implying physical harm or a threat against another person.
Unlike many other types of situations, the police have no discretion in domestic assault allegations, even if the assault is very minor e.g. a push or shove, the police are required to take action.
Once arrested the police will take the accused to the police station and hold them in jail until they can be brought before a justice for a domestic assault bail hearing.
Once the police have arrived the spouse may feel that the situation is now under control. The victim or spouse may not wish to make any further complaints to the police, but the police will still continue the investigation.
If the police have any reasonable grounds to believe that a domestic assault has occurred, the police will arrest the accused person and take them into custody. The victim has no control over whether or not the police arrest the accused. The complainant in a domestic assault allegation cannot ask to drop the charges, nor can they attend court at a later date and ask that the domestic assault charge be withdrawn.
At court Crown Attorneys are directed and mandated on how to proceed with domestic assaults, and the accused needs to have a lawyer representing them. Special Criminal Prosecutors maybe assigned to deal with the assault charge to ensure that strict mandates are followed for a domestic assault prosecution.
The Ontario Government, Courts and Police have learned that historically where a domestic assault has occurred that unless corrective action is taken the likelihood of a more serious domestic assault will occur.
The government also has learned that people who are emotionally involved with each other many not fully understand and appreciate what is happening and some outside intervention maybe required so that the assault does not escalate.
Subsequently the focus of the courts and the police is that the assault has stopped, will not occur in the future and that the accused understands that domestic assaults are not tolerated in Canada.
The penalty for a domestic assault can include;
- jail,
- fines
- restrictive bail conditions
- criminal record for life
- the accused may not be allowed to return home
- the accused maybe required to find some place else to live.
Before the accused is released from jail the police usually will have a bail hearing to ensure that before the accused is released that they follow strict conditions imposed by the court. As with all criminal charges, the accused is subject to having their fingerprints and photograph taken.
Once called to a domestic assault, the police will arrest the accused and take them usually in handcuffs to the police station. At the police station the accused will be processed and then placed in a jail cell awaiting a bail hearing.
The bail hearing is for a judge to review the case and to decide if the accused should be released from custody while awaiting the trial. The accused should consider a domestic assault lawyer to attend for the bail hearing or strict conditions may be imposed by the court.
If the accused is released the judge will normally as a result of a request from the crown attorney and the police place conditions on the accused. The bail conditions may include;
- the accused have no contact with the victim
- the accused not live at the same address as the victim
- the accused not consume alcohol or any drugs, and
- any other condition that the court may want to impose
If the accused agrees to the bail conditions the court will usually release the accused on a recognizance. A recognizance is a promise by the accused to abide by the conditions imposed by the court. If the accused breaks the conditions they can be arrested and held in custody until the trial date.
Many times the courts and police will impose bail conditions that are erroneously hard on the accused and or their family. It is usually favourable to have a bail hearing lawyer present to speak on behalf of the accused to ensure that any bail conditions are not debilitating.
Once released on the recognizance to change any of the conditions of the release a new hearing would be required to amended or change any of the conditions. Most hard on families will be that the accused may not be allowed to return to the family home or have contact with their spouse while on release.
As your lawyer, discussing and addressing the bail conditions will be one of the first issues we will address with the accused.
