Ontario Domestic Violence Charges at a Glance
Defending Domestic Violence Charges
Why Experience Matters
Domestic violence charges in Ontario have the power to turn 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 spent in custody, difficulty making bail, a looming criminal case, the prospect of a criminal record, mounting legal fees.
And that's just the beginning...
As an experienced Toronto domestic violence lawyer, I've watched the tidal wave of Ontario domestic violence charges shake my clients to their core. What hurts most is the endless barrage of legalities that aim straight for the heart. Bail conditions that prohibit contact between victim and defendant; terms requiring an accused contact their children through CAS or wit ha family court order.
However long or peaceably they've been married, however minor or misunderstood the allegations may have been, they risk going to jail if they talk.
Homes are vacated, even if the defendant holds the lease or continues to pay the bills. Friends and relatives, previously unaware of any domestic violence, are called upon to act as sureties or to offer their home. If children are involved, the Ontario Children's Aid Society can enter the mix, adding to the mountain of stress already being experienced by mother and father alike. Worse still, bail orders may include the children and restrict contact with them if they are alleged to be witnesses.
Compounding issues in the domestic assault context is a legal culture, especially pervasive in Ontario, that is too lax on protecting liberty and too zealous on enforcing rigid rules. To counteract decades of being soft on domestic violence, Ontario police now abide by a "must-charge" policy, often with bewildering results. As the Toronto Police Service makes plain, "charges are laid in all cases where reasonable grounds exist," even if there is zero prospect of a criminal conviction. Translation? Charges will be laid even if the Toronto Police Service knows, from experience, that the domestic charges will be withdrawn; or were especially minor; or, what is especially common, if the complainant simply wanted to get his or her partner some help.
Ontario domestic charges have become too routine. Rather than exercise their experience and judgment to keep the peace and to lay domestic assault charges only where appropriate, Ontario police are now forced to view domestic disputes through the narrow lens of a rigid policy. The results can be bewildering, and sometimes even tragic.
Silly disputes leading to a single slap can lead to a legal nightmare. Every day items, as basic or as harmless as chewing gum or water, are often interpreted as "weapons". Worst of all, this no-holds-barred policy often re-victimizes real victims: by charging women who, for a brief moment, decide to flee domestic violence by taking a stand. In such cases, it is only after tireless, staunch advocacy that domestic charges that never should be have been laid, ultimately get withdrawn.
A solution to decades of turning a blind eye to domestic violence? More like cutting one's nose off to spite their face.
For all this, an experienced domestic assault lawyer knows that we are still just at the beginning of the legal nightmare. Let's not forget, for example, Canada's broken bail system - especially broken in Ontario - which results in men and women being held in custody for far too long, far too often, and without the necessary legal justification; or the pervasive myths and legal misunderstandings that fill our clients' heads even before they've sat down for an initial consultation. "She never wanted me charged - that means the domestic case will be withdrawn, right?" Actually, it's just the beginning...
The Law of Domestic Violence in Ontario
Experienced criminal defence lawyers know to "look for the pattern" in domestic violence cases. That's because, although no two domestic cases is exactly alike, a significant percentage of domestic charges fall within a category or cluster of allegations.
The criminal lawyer who knows these patterns, and who understands the case and the client in-depth, is in a position to deploy an effective strategy that will obtain the best possible result. This can include the complete withdrawal of the domestic charges.
Let's have a look at some of the most common domestic charges in Ontario.
Domestic Assault Level I
Commonly charged as "Spousal Assault"
Also known as "assault simpliciter" in legal spheres, basic assault is among the most common charges laid in domestic cases.
A basic assault refers to situations where one party has intentionally applied force to another without their consent. In the domestic context, this can be a shove, a punch, a kick, or even hair-pulling.
What makes the allegation "domestic" in nature is, quite simply, the nature of the relationship between the parties in question.
Husband and wife? Definitely domestic.
Recent boyfriend and girlfriend? Yes.
Two drunk guys at a bar? An assault, to be sure, but not domestic.
Basic assault is defined at s.265 of the Criminal Code. Let's have a look:
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
The astute reader will notice, under subsection (b), that actual physical contact is not always needed to establish an assault in law. In some contexts, "faking" or "posturing" as though one is about to strike their intimate partner will suffice to prove the case.
What are the Penalties for Domestic Assault?
Throughout the web, you'll find multiple webpages that refer to the maximum penalties available for domestic assault, or any other crime you're researching for that matter. Although these maximum penalties are no doubt accurate in the sense that they reflect the current state of the law, they are virtually useless for determining the possible range of outcomes in your case.
Referencing maximum penalties, without an individualized assessment of the criminal case in question, is like referencing death as the worst possible outcome to a person who has a fever. It's possible, to be sure, but without knowing the patient or the cause of the ailment the predictive value is almost zero.
Only an 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, if - and only if - you are found guilty of the crime. (Don't forget: a complete withdrawal of the domestic charges, or another favourable outcome, including a peace bond, is also possible during this time.)
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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Brampton & Mississauga