Ontario Domestic Violence Charges at a Glance
Defending Domestic Violence Charges
Why Experience Matters
Ontario domestic violence charges have the power to turn ordinary lives upside down. Like a strike of lightning, one phone call to the police leads to a cascade of disastrous and seemingly irreversible consequences: criminal charges, nights in jail, difficulty making bail, a looming criminal case, the prospect of a criminal record, mounting legal fees.
And that's just the beginning...
Experienced domestic violence lawyers like Shayan Shaffie know first-hand how rapidly and powerfully domestic charges can disrupt a life - and a relationship.
However long or peaceably the parties have been together, however minor or misunderstood the allegations may have been, once domestic charges are laid a barrage of legal arrows aim straight for the heart. Bail conditions prohibit contact between couples who want to reconcile. The accused is ordered to stay away from home, even if the lease or title is in their name. And the involvement of the Children's Aid Society, in cases where a child was present, adds a mountain of stress to an already painful ordeal.
Marital homes are vacated; friends and relatives, previously unaware of any trouble in the relationship, are called upon to help. Guilt, remorse, and embarrassment fuel a desperate feeling of powerlessness in the face of police and court-ordered conditions.
Adding to these problems is a culture of policing domestic violence based on a "worst-case-scenario" mindset. To correct decades of overlooking true incidences of domestic abuse, the police now rely on the extreme opposite approach. In a word: they have been stripped of their discretion.
Across the province, "mandatory charging" policies require the police to lay domestic charges any time they believe an offence has been committed. The wishes of the complainant, the seriousness of the allegations, the best interests of the family: by virtue of policy, the police no longer take these into account.
In the domestic context, this inflexible policy has simply replaced old problems with new ones. Where true victims of domestic abuse were once overlooked by police, they now find themselves among a sea of infantilized "complainants". These are men and women who never wanted their loved one charged; but who are forced to endure the pain, cost, and feeling of despair forced upon their family by the criminal justice system.
It takes years of experience to develop a nuanced and effective approach to defending domestic violence cases. Because of the unique interplay of law, policy and human emotion in every domestic case, the best domestic violence lawyers know how to combine persuasion, skill and strength.
Shayan Shaffie is a top domestic violence lawyer who has successfully represented hundreds of defendants and complainants across the province. As a former Crown Attorney, he knows first-hand how domestic violence policies translate into arrests, hard evidence and cases in court.
As a defence lawyer whose practise emphasizes defending domestic cases, Mr. Shaffie has developed the client-centred skills and courtroom reputation needed to resolve domestic violence charges wherever possible. Where called upon to do so, he has demonstrated his ability to cut to the truth at trial.
If you're facing domestic violence charges, hire the best domestic violence lawyer you can. An experienced domestic lawyer will not only help get you the best outcome, but will do so in far less time and with far less anxiety.
If you're a complainant in a domestic violence case and you want help reclaiming your voice in the criminal justice system, call us today .
Three Profiles in Domestic Violence Cases
What kind are you facing?
The best domestic violence lawyers know that defending a domestic case requires equal parts legal prowess and good storytelling. That's because every domestic violence case has a history. Every charge on paper has a rich corresponding story. Knowing how to unpack and simplify that story is a central part of the special craft of domestic advocacy.
Although every domestic violence case is unique, skilled domestic violence lawyers know that, from a top-line perspective, most cases will fit into one of several basic "profiles". These "profiles" are by no means scientific. Nor are they enshrined in the Criminal Code of Canada. They can, however, based on the lawyer's experience, helpfully predict the range of outcomes a client can expect; the time horizon that a given domestic violence case will take; and, relatedly, the complexity and costs associated with the file.
By far the most common case profile, and the one we deal with most at Shaffie Law concerns mild domestic violence charges.
First Profile: Mild Domestic Cases
These cases comprise the bulk of our domestic violence casework at Shaffie Law.
Mild cases usually concern an accused person who has had no previous involvement with the criminal justice system. These are often working professionals: engineers, bankers, IT workers, even lawyers, who have reached a sudden rough patch in their relationship.
The conduct complained of is on the lower end of the spectrum. This can include shoving, restraint of the hands or arms during an argument, an open-handed strike (slap), threats unaccompanied by violence or damaging property. There are usually no injuries to the complainant, or injuries which are trifling in nature (marks or light scratches).
It is not uncommon in cases like these for both intimate partners to be charged. This can occur where both parties have visible marks and make corresponding claims against each other. If the police are unable to determine who the "primary aggressor" is, they will often charge both sides and leave it to the courts and prosecutors to sort out.
Because of the mild nature of the charges and the otherwise stable history of the parties, complainants in mild cases like these are frequently opposed to the prosecution of the case. In fact, in many cases they never wanted domestic charges to be laid in the first place. Understandably, they do not want to be forced to be a part of an adversarial process against someone they love.
Such victims will frequently write letters to the police or to the Crown Attorneys Office in an attempt to get the domestic charges dropped. Without the right legal advice, their attempts usually fail. Sometimes, they make matters worse.
The most common charges in this first category of domestic cases are: assault, mischief to property, forcible confinement and uttering threats.
Second Profile: Intermediate Domestic Cases
Intermediate and very serious (below) domestic violence charges encompass a broad range of alleged misconduct. Their shared characteristic is, quite simply, that they cannot be considered "mild". In the result, these are domestic violence charges which attract higher levels of scrutiny from prosecutors, and can often lead to jail even for first offenders.
Any number of characteristics can lead a domestic violence lawyer to conclude that a given case sits at an intermediate level. This can include, for example, the use of a weapon; non-trivial injuries to the complainant; concurrent allegations of child abuse; the existence of past domestic charges within the couple; or a long-term pattern of controlling or harassing behaviour which has escalated over time.
The men and women facing these type of domestic violence charges often suffer from emergent or long-term substance abuse issues. Mental health is frequently a factor. The abuse can flow both ways.
Domestic charges in the intermediate range require careful, attentive and skilled handling. Often, a successful strategy is one which identifies the root cause of the disruption and clearly addresses it over time. If the domestic violence lawyer has a good reputation, Crown Attorneys will rely on and trust them to establish the markers of their clients' rehabilitation.
In other cases, litigation strategies should be pursued early and vigorously. With the guidance of an experienced domestic lawyer, clients will know exactly what to expect from the court process and how to prepare for an eventual trial.
Often, intermediate cases will require some combination of these and other strategies.
The most common charges in the second category of domestic charges are: assault with a weapon, assault causing bodily harm, choking, criminal harassment.
Third Profile: Very Serious Domestic Cases
When most Canadians think about domestic violence, they probably imagine a class of offences which, thankfully, are actually quite rare. Though all acts of domestic violence are serious, those which involve severe, often chronic physical or psychological abuse are the exception in Ontario's courts.
Very serious domestic violence cases are those which involve serious harm to the physical and/or psychological integrity of the victim. These are offences which, by definition, carry a high risk of a significant custodial sentence including a term in the penitentiary. Accordingly, very serious domestic charges include all offences of a sexual nature, regardless of the specific form of the non-consensual contact.
In almost all very serious domestic violence cases the accused person is male; and in the vast majority of cases he will have a previous criminal record, often for domestic violence. Substance abuse, mental health, poverty and childhood trauma are common markers in these types of criminal cases. These same attributes are frequently applicable to the complainant, as well.
The most common charges in this class of domestic offences are: aggravated assault, choking, sexual assault, aggravated sexual assault, administering a noxious substance and child abuse.
Domestic Assault Charges in Detail
Domestic Assault s.266
Commonly charged as "Spousal Assault"
Also known as assault simpliciter, simple assault under s.266 of the Criminal Code of Canada is the most commonly laid charge in Ontario domestic violence cases.
Like virtually all domestic charges, s.266 is not specially designated a domestic crime. In fact, if we look at the section it is simply called "assault". This correctly informs us that s.266 is amorphous in nature. In other words, it is capable of applying to all forms of assault. (Think of a barroom brawl, for example, or a neighbour dispute. The charging section would be the same.)
What makes s.266 domestic in a given case is, not the charging section, but the nature of the relationship between the parties. If that relationship concerns an "intimate partner", a set of laws, polices and procedures unique to domestic violence cases will apply.
What makes a relationship an intimate partner relationship? According to the Criminal Code, an intimate partner includes a current or former spouse, common-law partner or dating partner. The use of the word includes tells us that the term is capable of some flexibility.
Therefore, if an alleged s.266 assault has been committed against an intimate partner, it will be treated as domestic or spousal by police, prosecutors and the courts. This same rule applies to all domestic violence charges: from mischief, threats and the higher forms of assault described below, to more serious offences like sexual assault an homicide.
What is a s.266 Domestic Assault?
Looking at the Elements
Section 266 is what lawyers and judges often refer to as the "offence-creating provision". The actual crime of basic assault is defined at s.265 of the Criminal Code.
Let's have a quick look at the the elements of the charge.
265 (1) 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
Examining s.265, which describes the most common domestic assault charge in Ontario, we learn that it contains three basic elements. To make out the charge, there must be proof that the accused person (1) intentionally applied (2) force to their intimate partner (3) without their consent. A reasonable doubt concerning one or more of these elements would be enough for an accused to be acquitted at trial.
The astute reader will notice, under subsection (b), that actual physical contact is not always necessary to establish an assault in law. Section 265(b) describes situations where an accused person has (1) attempted or threatened to (2) apply force, in circumstances which cause the intimate partner to (3) believe that the accused has the present ability to do so.
Although this section does not require actual contact between the parties to make out the assault, because of the additional burdens of proof it imposes on prosecutors s.265(b) is charged only very rarely by police.
The Penalties for a s.266 Domestic Assault
Throughout the web you'll find multiple websites that refer to the maximum penalties available for domestic assault. Although these maximums are technically accurate, they are often useless for determining the range of realistic outcomes in your case.
Referencing maximum penalties, without an individualized assessment of a client's file, is like citing death as a possible outcome of a paper cut. Is it possible? Technically, yes. But it's extremely unlikely.
It also misses an important point.
The Criminal Code's focus on jail, fines and probation are not always a client's main concerns. In fact, at our law firm these are rarely the issues we are focusing on or litigating. Our clients are more frequently concerned with:
Whether they will have a criminal record;
Whether a criminal record check will disclose their domestic charges;
Whether they will be able to travel for business;
Whether their immigration status will be adversely impacted;
When they will be able to reunite with their family; and
How the criminal case could impact related family court proceedings.
If you want an individualized experienced domestic assault lawyer can, after months of working closely with you, the file, and the prosecution, arrive at a reasonably reliable assessment of the potential consequences of your case
With this caution in mind, let's have the customary look at the maximum penalties for assault simpliciter, under s.265 of the Criminal Code:
266 Every one who commits an assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on summary conviction.
The takeaway? Five years jail for an indictable offence; and up to 6 months jail if the Crown proceeds by summary conviction*. Other, ancillary consequences are also possible: including a weapons prohibition or order for a sample of your DNA. (*I'll be discussing what these technical terms mean in another article.)
So much for assault simpliciter. What about the other, more serious forms of assault?
More Serious Domestic Violence Charges
Domestic Assault Causing Bodily Harm
Known in legal circles and among the police as "ABH," or sometimes "Assault Level II". As the name suggests, an assault causing bodily harm is just like an assault simpliciter - except that a notable injury to the complainant has resulted.
It is certainly not the case that any injury will result in the laying of an ABH. If a domestic complainant, for instance, complains of scratches or soreness these are typically dealt with under a "level 1" charge. If, on the other hand, the injuries are more serious (a black eye or significant laceration, for instance), an ABH - along with more serious penalties - is the more likely fit.
With my proviso above in mind, the maximum penalties for "assault causing bodily harm" are 10 years for a crime prosecuted by indictment, and 18 months if the charge is prosecuted by way of summary conviction procedure.
Once again, these figures exclude any consideration of the unique factors present in every domestic case; and they exclude any consideration of the important ancillary consequences that can flow from a finding of guilt.
Domestic Assault with a Weapon
As the name suggests, assault with a weapon refers to domestic situations involving the use or attempted use of a "weapon". What constitutes a "weapon" is, regrettably, the subject of a great deal of frustration among criminal defence lawyers.
Unfortunately, the Criminal Code of Canada leaves the matter wide open. From s.2 of the Code.
[a] weapon means any thing used, designed to be used or intended for use
(a) in causing death or injury to any person, or
(b) for the purpose of threatening or intimidating any person
and, without restricting the generality of the foregoing, includes a firearm and, for the purposes of sections 88, 267 and 272, any thing used, designed to be used or intended for use in binding or tying up a person against their will
Got that? Any thing that is actually used - not just to injure a person, but even to intimidate or threaten them. This extremely broad definition frequently results in absurd criminal prosecutions.
A knife? Obviously.
Throwing a cell phone or remote control? Ok. Yes.
How about water, bubble gum, or a pillow? Sadly, yes!
For those unfortunate enough to have been charged and convicted in cases involving these petty and often harmless items, unfairness results when trying to explain the matter to an employer, immigration officer, or even a judge months or years in the future (say, when trying to bail a friend out).
Why? Because criminal records don't contain explanations. They won't disclose that the weapon was actually a plush toy in the child's room. Instead, the record will simply set out the date, the charge(s), and the sentence, leaving the rest to imagination and explication. (It goes without saying, of course, that when most people see "assault with a weapon," they use their common sense: they imagine a gun, a bat, a knife, in a word, an actual weapon.)
As with assault causing bodily harm, the maximum penalties available to the Crown for an assault with a weapon are 10 years when prosecuted by indictment, and 18 months if the Crown proceeds by summary conviction procedure. Both penalties are set out in s.267 of the Code.
Domestic Aggravated Assault
Also known - depending on the circumstances - as "maiming," "torture," or "assault level III." Aggravated assault is the most serious form of assault under Canadian Criminal Law. In the domestic context, it is usually reserved for the most serious cases involving either significant injuries or a risk to human life.
To make out the offence, the prosecution must be able to establish that the alleged assault resulted in "wound[ing], maim[ing], disfigur[ing, or endanger[ing] the life" of the complainant. The injuries most commonly involved in domestic aggravated assault charges include: major lacerations (cuts), broken or fractured bones, significant burns, and/or long-term head or tissue injuries resulting in mobility or psychological issues.
Whereas Assault Level I and Assault Level II are conceptual neighbours, aggravated assault is in another conceptual league of seriousness. Accordingly, the maximum available penalties are even higher.
According to s.268, aggravated assault may only be prosecuted by indictment and carries a maximum of fourteen years in jail.
As most experienced domestic assault lawyers know, a conviction for aggravated assault will usually result in a period of incarceration.
The Best Domestic Violence Lawyer for Your Case
What Should You Look For?
If you've been charged with domestic assault in Ontario, you've come to the right place. Shayan Shaffie has successfully handled hundreds of domestic assault cases - formerly as a prosecutor, now as defence lawyer.
As an experienced domestic assault lawyer, he understands the sensitive dynamics at play across all levels of a domestic case: from the fraught emotional state of clients; to the perspectives and concerns of prosecutors; to devising the strongest possible trial strategies for obtaining a successful verdict.
Shaffie Law has a proven track record of obtaining exceptional results in domestic assault cases. Historically a majority of our domestic cases have concluded by way of a complete withdrawal of the charges, or the issuance of a peace bond as a final means of resolution. Although each case is different, these outcomes typically occur at the "pre-trial" stage of the domestic case - that is, without the need of waiting months or years for a trial date.
An effective Toronto domestic assault lawyer must be part story-teller, part counsellor to his client, and one hundred percent resolute advocate. We encourage you to call or write us if you want to discuss your domestic charges with us.
Domestic Violence Charges: Frequently Asked Questions
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