Domestic Assault

The courts believe that domestic assaults including domestic violence must be treated strictly and seriously.  The prosecution believe that in a domestic situation the safety of the complainant or victim is paramount.

Where you or a loved one have been arrested for domestic assault or are being held for a bail hearing, speak to an experienced domestic assault lawyer. Call us today at 416-731-7113.

A domestic assault is an assault between two or more people that have a relationship with each other, dating, married, common law or have a family relationship.

Domestic assaults can include:

• words or threats
• acts or gestures implying an assault
• a physical assault on another person
• implying physical harm or a threat against another person

Even where the physical action did not occur, but the victim believed that there was a threat of assault the police can still arrest.

When the police respond to a domestic assault and find evidence that an assault has occurred, the police MUST arrest the accused and take them into custody.

Even if the assault is minor in nature, the police:

• have no discretion
• must arrest the accused, and
• must take the accused into custody
• hold the accused for a bail hearing

Upon arrest for domestic assault the accused is taken to the police station. The accused is held in jail until they can be brought before a justice of the peace for a bail hearing.

In domestic assault charges the police lay the charge, not the victim.  Nor can the victim attend court and ask that the domestic assault charge be withdrawn, saying they wish to drop the complaint.

Many people mistakenly believe that it’s the victim of the assault who is laying the charges.

This is not true,

• the police lay the criminal charge
• on information they receive
• from a victim or witness to the domestic assault

Once the police have arrived the spouse may feel that the situation is under control.

Although the victim or spouse may not wish to make any further complaints to the police, the police are required to continue the investigation.

If the police have reasonable grounds to believe that a domestic assault has occurred, the police MUST arrest the accused and take them into custody.

• the victim has no control over the arrest
• the victim cannot withdraw the complaint

The complainant or victim in a domestic assault allegation cannot:

• ask the police to drop the charges
• ask the crown attorney to drop the charges

Crown Attorneys are directed and mandated on how to proceed with domestic assaults.

Special criminal prosecutors are assigned to deal with domestic assault charges to ensure that strict mandates are followed.

Where domestic assault charges are laid the police will fingerprint and photograph the accused. The accused is held in custody until a bail hearing can be held.

The bail hearing is a hearing before a justice of the peace to ensure:

• identity of the accused
• accused will appear in court for trial
• all evidence has been obtained
• accused will not repeat the offence

In a bail hearing, the main concern for the judge is that the accused will not repeat the offence and will appear for court.

Where an accused has been arrested on charges of domestic assault, the police will take the accused to the police station.

The accused will be processed and then placed in a jail cell until a bail hearing can be held, usually the next day.

The bail hearing is a court hearing for a judge to review the case prior to the case going to trial.  At the bail hearing the judge decides if the accused should be released from custody while awaiting for the case to come to trial or not.

The accused should consider a criminal lawyer, versed in domestic assault charges to attend for the bail hearing to ensure their release and to avoid strict bail conditions being imposed by the court.

If the accused is released from custody the judge will normally place conditions on the accused.

The bail conditions may include:

• no contact with the victim
• not live at the same address as the victim
• 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.

The most common bail condition in domestic assault charges will be a prohibition from having contact with their family.

The bail condition will also restrict access to the family home and including access to children. The accused will be ordered not to have any contact directly, or indirectly with the complainant.

The accused can not even send a message to the complainant through a third party or any other means including:

• text messages,
• social media, or
• mutual acquaintances

The police can monitor these communications and if caught violating the bail conditions the accused will be arrested and charged with Failure to Comply with bail conditions.

Where there is a breach of the bail conditions a new bail hearing will be held.  Stricter conditions will be added including curfew, or house arrest or the accused maybe kept in custody.

The bail conditions will remain in place until the matter is resolved.  Where a trial is involved, that could be a year or more from the date of arrest.

Subsequently it is highly recommended that the accused have a lawyer present to insecure that prohibitive conditions are not placed upon them.

Crown attorney’s must follow the governments “crown policy manual” for domestic assaults.

The provincial government requires the prosecution of domestic violence cases where there is sufficient evidence to support a conviction, regardless of the complainant’s wishes.

Crown counsel are instructed to evaluate requests from complainants to discontinue a domestic assault prosecution with great caution given the “intolerable pressure” a complainant may face to have the charges withdrawn.

The Crown Policy Manual in Ontario makes clear that the recommended practices with respect to withdrawing and resolving charges apply to cases of family violence just as they do to all other types of charges.

In considering whether to continue domestic assault charges, the Crown counsel must consider whether there is a “reasonable prospect of conviction” and whether prosecution is in the public interest.

The policy manual notes, however, that public interest factors in the domestic violence cases should be “weighed in light of the predominant need to protect the victim.

The Criminal Code of Canada s.266 defines domestic assault as:

A domestic assault occurs 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 other levels of an assault from a simple assault called a “common assault”, to assault causing bodily harm and spousal or domestic assault.

A 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.

In speaking to a domestic assault lawyer, people ask what will be the outcome?

Although we cannot predict any court case, usually we see one of these outcomes for domestic incidents:

• the charges are withdrawn
• the charges are withdrawn due to legal technicalities
• an agreement is made with the crown attorney such as:
  • diversion
  • probation or
  • peace bond
• 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.

★★★★★  Nicholas solved my domestic assault case exactly as he promised, my criminal charges were dropped at trial.  Nicholas is an amazing domestic assault lawyer. The prosecution didn’t even finish the trial when they asked the judge to withdraw the charges after Nicholas did his cross examination of my accuser. Name Withheld (LawyerRatingZ.com)

An experienced criminal defence lawyer may be able to have your domestic assault charge diverted by having you attend for counselling, either privately, or through a court-approved program such as the PAR (Partner Assault Response) program.

It is often a good idea for the accused person to enroll in counselling right away.

• this is not an admission of guilt,
• but rather a sign that the accused understands the severity of the charge,
• and will go a long way when your lawyer speaks to the crown attorney about the case

If accepted into the diversion program you will be able to go back home to your partner, if he or she consents, shortly after completing a few weeks of the program. In some instances, you may be able to go home as soon as you enroll in the program.

Depending on the seriousness of the assault, and your progress in the program(s), once completed,

• will either have your charges withdrawn
• be required to enter into a peace bond, or you will be required to plead guilty,
• but will avoid a criminal record.

Call us today for more information about defending domestic assault and diversion programs.

In addition to enrolling in private counselling, it is a good idea to start collecting letters of reference and good character about you that can be shared with the crown attorney during a crown pretrial or a judicial pretrial.

Letters can be collected from friends, other family members, neighbours, employers, or other community organizations that you may be involved in.

If you are not involved in any community volunteer organizations, it is also a good idea to start getting involved right away.

It is often looked upon very favourably in court if your lawyer can tell the crown and the judge that you do community service work, and this could even be applied towards the resolution of your case.

Depending on the seriousness of the assault, and your progress in the program(s), once completed,

• will either have your charges withdrawn
• be required to enter into a peace bond, or you will be required to plead guilty,
• but will avoid a criminal record.

Call us today for more information about defending domestic assault and diversion programs.

When a case of domestic assault comes to trial the crown attorney and court will consider:

• was the assault minor or serious in nature
• any history of police involvement
• any history of previous domestic assaults
• 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 domestic assault lawyer we consider your position and feelings about the case, for example:

• do you want to resolve the matter, or
• is this a case where you have been wrongly accused, or
• do you dispute the allegation and should the case go to trial

In criminal defence experience counts.

Knowing the law, the application of it, the people involved, and 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 domestic assault lawyers we understand these issues.

As defence lawyers our job is to show the court that the incident:

• did not happen, and the charge should be dropped, or
• 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, your lawyer to make the accused aware of the serious nature of these charges.

Where you have been charged, call our offices to speak to a defence lawyer with experience in domestic disputes and allegations that can help you.

★★★★★ Nicholas went out of the way treating me like a family member. It’s rare that justice is found in cases with domestic assault, but as my lawyer Mr. Charitsis made sure everyone understood the facts and how the complaint was exaggerated by the police. I would absolutely recommend Nicholas to anyone who is looking for a skilled lawyer with the compassion of a friend more like family. Thank you for everything. NameWithheld LawyerRatingZ.com

Want legal advice or like to speak to a lawyer? The first step is to give us a call at 416-731-7113.

There is no fee or obligation to call and speak to us.  The discussion is held with complete privacy and confidence with the lawyer.

The lawyer will be able to give you an opinion about your case, and tell you:

• possible defences to the charge
• legal arguments in your case
• what you can do to help your case
• what the cost to defend the accusation would be

Where you decide to retain our services we will invite you to meet in our Toronto office or have a face to face Zoom online meeting.

In that meeting we’ll discuss the case in detail, plan your defence and arrange for the first court date.

We ask for a reasonable deposit upon retaining our services of 10 to 25 percent.