Updated: Jul 21, 2020
This article is a follow-up to “Getting Domestic Charges Dropped in Ontario: the Victim’s Role in Domestic Violence Cases”. In that post I focused on the role that victims play in the investigation and prosecution of Ontario domestic charges. Specifically, I dispelled a number of myths about the power victims have to decide whether domestic violence charges get laid; as well as the frustrations they often encounter in influencing the prosecution of those charges in court.
Getting Ontario domestic charges dropped, it turns out, is not as simple as telling the police or prosecution what you want. It can take months, even years, for prosecutors to act on a victim’s desire to drop the domestic violence charges – if those wishes are not ignored outright.
In this blog post I pull back from the specific role of victims in Ontario domestic violence cases, and discuss the general topics every Ontarian facing domestic charges should know.
“Getting Domestic Charges Dropped” had two main takeaways for my readers. First, it underscored that Ontario domestic charges are deceptively complex, often frustrating for both sides of a case (defendant and victim), and riddled with misunderstanding. And second, it demonstrated that the best way to fight Ontario domestic violence charges is by hiring the best domestic violence lawyer you can.
From A to Z: Understanding Ontario Domestic Violence Charges
“Getting Domestic Charges Dropped” has attracted a tremendous positive feedback. Every week I get calls from complainants and defendants alike looking to get their Ontario domestic charges dropped. Victims express their desperation in getting a handle on what was supposed to be their court case. Defendants, eager to return home to their family and loved ones, want to the quickest path to the best result.
In this blog post I pull back from the specific role of victims in Ontario domestic violence cases, and discuss the general topics every Ontarian facing domestic charges should know. The end goal is to empower Ontarians facing domestic charges by demystifying some of the underlying legal principles and highlighting best practises for getting domestic charges dropped.
The topics below are general and practical in nature, starting with what makes “domestic charges” a special class of offences in criminal law. We then explore a standard Ontario domestic violence case from start to finish: beginning with the investigation and charging phase; what to do on arrest for domestic charges; and what to expect after your release.
I discuss, in detail, the impact that hiring an experienced domestic assault lawyer can have on your case. I highlight some of the strategies defendants can adopt early on to get the best result. I talk about the court process in domestic charges generally. And lastly, for those domestic cases where the charges haven’t been dropped, I discuss some of the penalties and specific consequences defendants can expect from a judge.
As an Ontario domestic violence lawyer with hundreds successful defences in the area, I am proud to share my skill and knowledge in the area of domestic violence with my fellow Ontarians. It is an overarching goal at my law firm to help Canadians understand the basics of the criminal law that governs them.
Because domestic violence has such a huge impact on families, I have been focusing my energy on this topic for some time now.
As always, please bear in mind that this article is general in nature. It is not a substitute for legal advice. As I mention repeatedly, Ontario domestic charges are complex. No two cases is alike, and there is simply no simple substitute for hiring the best Ontario domestic assault lawyer you can find.
With what, let’s cover some of the basics.
Part One: What's So Special About "Domestic" Charges?
a. Understanding the Degrees of Domestic Violence Charges
Ontario domestic violence charges come in a variety of forms and degrees of seriousness. On the low end charges include minor property offences like mischief (damaging or breaking items) or uttering threats to damage property. Mid-level offences include uttering threats to cause death, criminal harassment or basic domestic assault (think: no injuries).
Moving up the scale of seriousness are mid-to-high offences like assault with a weapon, assault causing bodily harm, some forms of stalking behaviour and choking. These offences may also be accompanied by a charge of forcible confinement. And at the very high end we have charges that include allegations of sexual assault, aggravated assault (think: serious injuries), and even homicide.
Under Canadian law, there are no specially designated “domestic” charges. Rather, any crime becomes domestic in nature when the complainant – or victim – is the accused’s “intimate partner”.
Naturally, the higher up the ladder of seriousness, the more intense the investigation and prosecution of an Ontario domestic charge will be. Put another way, a male without a criminal record who is charged with domestic mischief will normally not face police interrogation on arrest. Jail would also not be a realistic prospect. In fact, with the right representation his Ontario domestic charges would likely be dropped.
On the other hand, if that same male were charged with domestic sexual assault, or if he had a significant prior domestic violence record, the situation would change drastically. He would almost certainly face interrogation at the time of his arrest. Unless there are major difficulties with its case, the prosecution would never agree to drop the domestic violence charges. And if he were found guilty, jail would be all but guaranteed – including a host of other negative consequences for a domestic sexual offence.
b. What Makes a Criminal Charge “Domestic”?
Under Canadian law, there are no specially designated “domestic” charges. Rather, any crime becomes domestic in nature when the complainant – or victim – is the accused’s “intimate partner”. This can be a wife or husband, common law partner, or even a short-term girlfriend or boyfriend.
In other words, shoving your neighbour and shoving your spouse would both attract the same charge under s.266 of the Criminal Code. But in the second case, the involvement of an “intimate partner” triggers a vast set of legal, procedural and attitudinal dimensions that aren't usually at play. These percolate through every facet and stage of an Ontario domestic violence case. At this investigation stage, it means a zero-tolerance policy from police. At the prosecution stage, specially trained prosecutors treat domestic violence charges with extreme caution. And both at the bail and sentencing stages, the Criminal Code instructs Judges and Justices of the Peace to impose additional sanctions on men and women charged with offences against their “intimate partner”.
Ontario’s police forces have an explicit zero-tolerance policy for domestic violence. Although designed to address the ills of legitimate domestic abuse, the policy often leads to head-scratching and unwanted arrests.
The “domestic” nature of domestic violence charges makes expertise in the field especially valuable. The best Ontario domestic violence lawyers are not just sound criminal practitioners. They understand the attitudes, science, pseudo-science, and ever-evolving legal principles that inform the entirely unique criminal process in domestic violence cases.
Part Two: the Investigation & Laying of Domestic Violence Charges in Ontario
a. "If the Police Show Up, Someone is Likely to be Arrested."
Ontario’s police forces have an explicit zero-tolerance policy for domestic violence. Although designed to address the ills of legitimate domestic abuse, the policy often leads to head-scratching and unwanted arrests. Calls to the police that were not intended to initiate domestic charges very often lead to one party being hauled away in a cruiser, held for bail and placed on strict conditions not to return home or communicate with an unwitting “victim”.
Here is a common scenario: a husband and wife are drinking and having a heated argument. One of them makes an idle threat; the other phones police. The party who phones does so in a state of rage but has no intention of filing a formal police complaint. Once the police do arrive, both parties have calmed down and the male has left the residence. The complainant explains the argument and confirms that she called the police because she was angry about her husband’s threat.
A single shove, an idle threat, throwing the television remote control – these may sound like a bad night to you. In the eyes of the police they are “assaults”, “threats”, and “use of a weapon”.
The result? The “threat” is recorded by officers in their notebooks. The police radio fellow officers for the male’s arrest. A short time later the husband is arrested and led away in handcuffs. For the next several months he will be forced to reside with his parents or friends, hire an Ontario domestic violence lawyer and fight the charges in court. The “victim” is adamant that she wants the domestic charges dropped but the police give her the runaround. Her calls to the prosecutor’s office go unanswered. She feels powerless, and he risks further jail if he returns home.
As an Ontario domestic assault lawyer, I have long criticized this approach to policing families. I recognize that domestic violence is a scourge that must be curbed in our communities. But so is casting the widest possible net and the lowest possible threshold in defining “violence”. Doing so tears apart families and leads to unnecessary punishment.
Put simply, the “must-charge policy” is an over-correction. Where police once turned a blind eye to domestic violence, they’ve now veered off an excessive-policing cliff. A single shove, an idle threat, throwing the television remote control – these may sound like a bad night to you. In the eyes of the police they are “assaults”, “threats”, and “use of a weapon”.
b. Back at the Station – Knowing How to Remain Silent
Once someone has been arrested for an Ontario domestic violence charge, they will usually be “processed” at their local police station. This involves being paraded before a senior officer, searched, photographed and fingerprinted. At an early point in this process they will be given an opportunity to speak to a lawyer of their choice. If they do not have a domestic violence lawyer, the police will refer them to Legal Aid Ontario for free legal advice.
Use this opportunity. Call the best Ontario domestic violence lawyer you can. An Ontario domestic violence lawyer will take the time to review the charges, understand the allegations in support of them, and assess the seriousness of the case. Based on this information, your domestic violence lawyer will be able to judge whether you are likely to be interrogated (interviewed) by the police or subject to any additional investigative procedures. The lawyer will then give you advice that is suited to the specific circumstances of your domestic violence case.
One of the most important things a domestic violence lawyer will do is remind you of your right to silence. Do not underestimate this right. Do not assume you understand it. Most people charged with domestic violence in Ontario are first-offenders. They have no idea what to expect from the police, including the tactics they are and are not allowed to use to advance their investigation.
The best Ontario domestic violence lawyers will not only tell their clients about the right, but explain how to use it. Without this additional explanation, simply telling clients about the right to silence is like handing them a shield of solid gold without training. Once the client is thrown into a ring with the lions (police), they are likely to be devoured.
One of the most important things a domestic violence lawyer will do is remind you of your right to silence. Do not underestimate this right. Do not assume you understand it.
In the majority of cases, you will only get to speak to your Ontario domestic violence lawyer once, so listen very carefully to their advice. The more serious the charges – aggravated or sexual assault, for example – the more important your domestic violence lawyer’s advice will be.
c. You Will Likely be Held for a Domestic Violence Bail Hearing
Although Covid-19 appears to have lowered numbers somewhat, most people arrested for domestic violence charges in Ontario will be held for a bail hearing.
As I say and again throughout my online editorials, bail is a crucial stage in every criminal case. The failure to achieve it, and to achieve it on fair terms, can mean the difference between getting your Ontario domestic charges dropped, and pleading guilty to a crime you did not commit [youtube – why bail is so important].
Whatever your form of release, keep copies of all your paperwork for your Ontario domestic violence lawyer.
Once again, retaining the services of an experienced domestic violence lawyer can play a pivotal role at this stage. An Ontario domestic violence lawyer will ensure that your bail hearing is heard quickly, and that any terms imposed on you by a court you are fair and reasonable. This can mean the difference between:
- requiring a surety and not;
- being required to live with the surety and not;
- having to comply with a curfew or even house arrest, or not;
- being prohibited from consuming alcohol, or not; and
- requiring a family court order to communicate with your children, or not.
Because of landmark decisions like R v. Zora from our Supreme Court, the best Ontario domestic violence lawyers may even argue for allowing you to return home. In recent cases, I have convinced judges to permit “victim” and accused to resume contact. I am proud to say that this represents the tip of the spear in Ontario domestic violence advocacy.
If you are not held for a bail hearing, the police will release you from the station on an undertaking. Whatever your form of release, keep copies of all your paperwork for your Ontario domestic violence lawyer. They will want to see it. The undertaking will contain important information like your first court date, a list of the charges, and the conditions which have been imposed on you by the police. If you wish to amend those conditions, be sure to bring them to your domestic violence lawyer’s attention.
Part Three: What Happens After You’ve Been Charged with Domestic Violence in Ontario
Once you’ve been released – either by the court or the police – you will be provided with a date for your first court appearance. As I explain elsewhere, your first court appearance is not a trial. Therefore, don’t expect there to be any witnesses or police officers present. Don’t expect the court to ask for your plea (guilty or not guilty), or for an explanation of what happened.
These days, cell phones are virtual storehouses for our personal lives. For an Ontario domestic violence lawyer, these are treasure troves of important information including dates, emails, videos and correspondence
A first court appearance marks the beginning of what is usually a lengthy court process. Before that process begins, there are several crucial steps you should take to improve your chances of getting your Ontario domestic charges dropped. If your domestic charges are not dropped, these steps will still increase the strength of your position throughout every phase of the court case.
a. Save and Store Everything
These days, cell phones are virtual storehouses for our personal lives. For an Ontario domestic violence lawyer, these are treasure troves of important information including dates, emails, videos and correspondence (think: text messages, facebook messages, DMs and other social media).
In serious cases, evidence of this kind can often make the difference between getting your Ontario domestic charges dropped, and being forced on to trial. Text messages, for example, often paint a vivid picture about the jealousy that results from an extra-marital affair. Emails, similarly, can help a domestic violence lawyer understand the ways a pending divorce or child custody battle create a powerful motive to lie. These items can often be used at trial to devastating effect.
Simply put, hiring the best domestic lawyer you can may mean the difference between getting your Ontario domestic charges dropped or settling for an inferior result.
Whatever you do, store all of these items – and fast. In the digital age, one party is often able to delete messages without the consent of the recipient (on Facebook and Instagram, for example). If this happens, it can be extremely difficult, expensive and time-consuming for your domestic lawyer to recover the lost data – if it is even possible.
Therefore, be sure to screenshot, print, PDF, or save any of these items. Place them in an envelope or secure folder on your computer. Your Ontario domestic violence lawyer may want to review these materials at a later date.
b. Hire the Best Ontario Domestic Violence Lawyer You Can
I sympathize with Ontarians facing domestic violence charges. A large number of them have never been in trouble with the law before. Many are working professionals, or newcomers to the country worried about their immigration status. Whatever their station in life, they don’t know who to trust, what to look for in an Ontario domestic violence lawyer, or how to distinguish between the best criminal lawyers and the worst.
If you’re interested in learning more about the professional services of a criminal defence lawyer, read my article: "The Best Toronto Criminal Lawyer for Your Case: A Guide to Hiring the Right Counsel". There, I unpack the actual steps involved in defending a criminal case, including where a client’s hard-earned trust funds are spent. The guide should help you to gauge the relative skill level and competencies of the domestic assault lawyer you are thinking to hire.
In the domestic violence context specifically, hiring the best Ontario domestic violence lawyer can have an impact on virtually every part of your case. The sum total of these differences is a vastly superior experience and set of potential outcomes. Simply put, hiring the best domestic lawyer you can may mean the difference between getting your Ontario domestic charges dropped or settling for an inferior result.
Consider these other real-life differences in representation:
Receiving bare-bones advice at the time of your arrest, resulting in you giving a statement to police that strengthens the prosecution’s case vs. receiving the right preparation and advice at the time of your arrest by a skilled domestic violence lawyer, resulting in no statement being provided and a much weaker case against you. In the second case, the domestic charges are far more likely to be dropped.
Sitting in custody for days on end waiting for your domestic violence lawyer to schedule your bail hearing vs. being released promptly after a successful bail hearing to a surety who has been quickly and properly prepared.
Being bound by harsh bail conditions, including a residence term, the requirement of a family court order to see your children and complying with a curfew vs. not have any curfew, child-access, or alcohol-related. Keep in mind that bail conditions may last for the full duration of your case (months or years).
Having a tough time getting a hold of your domestic lawyer, and feeling like they are doing you a favour every time they do discuss your case with you vs. knowing you can count on prompt communication from your domestic violence lawyer, and feeling at ease with their knowledge and commitment to the case.
Dealing with an Ontario domestic violence case that drags on unnecessarily for months or even years vs. getting your domestic charges dropped within a reasonable period (3-5 months typically), or otherwise enjoying swift developments toward a result you feel confident in.
Pleading guilty to a domestic charge without a clear understanding of your rights or why you are not taking the case to trial vs. being guided through each step of your domestic violence case, including your odds of success at a trial, and feeling confident in your domestic violence lawyer’s assessment.
Being ordered by a judge into a 2 or 3 year peace bond or probation order with multiple conditions, including a requirement to report to probation vs. getting your domestic charges dropped, or otherwise entering into a shorter peace bond or probation order with fewer terms.
Walking into your domestic violence trial feeling unprepared, without a clear idea of what to expect or what approach your lawyer will take vs. spending hours working with your Ontario domestic violence lawyer preparing for trial, walking through questions and knowing that other witnesses have been prepared as well.
Being caught by surprise by the consequences that flow from your case, like a positive criminal record check or, worse, immigration consequences vs. knowing in advance what the ramifications of your decisions are likely to be, and proceeding in lockstep with the advice provided to you by your domestic violence lawyer.
For clients with no experience in the justice system, these distinctions are often hard or even impossible to spot. That is why hiring the best Ontario domestic violence lawyer is an investment you should make up front. The best Ontario domestic violence lawyers will always pursue the high, difficult road for their client’s well-being, without ever being asked.
In other words, the best Ontario domestic violence lawyer will pursue the earliest possible bail hearing; fight with judges and prosecutors for the fairest terms; comfort their clients by talking to them, openly and honestly about their case; and empower them at each stage by helping them to make clear, informed decisions.
The best Ontario domestic violence lawyer, in short, will help you get the best result and know it. And with the latter comes a benefit that does not get talked about often enough: peace of mind.
I encourage every Ontarian facing domestic charges to forget dollars and cents while they can. If you want your domestic charges dropped, or to get the next best possible outcome, you simply cannot afford mediocre representation.
c. Follow Your Domestic Violence Lawyer’s Advice to the Letter
Even before the court process begins, a thoughtful domestic violence lawyer will consider the ways you can increase your chances of getting the best possible outcome. Put simply, getting Ontario domestic charges dropped, for example, often boils down to following your lawyer’s advice. This may involve participating in counselling or rehabilitation – for alcohol or substance abuse, for example. In more serious cases, your domestic violence lawyer may ask you to gather the names and contact details of specific witnesses.
Hiring the best Ontario domestic violence lawyer is an investment you should make up front. The best Ontario domestic violence lawyers will always pursue the high, difficult road for their client’s well-being, without ever being asked.
Whatever the homework is: do it. The best domestic violence lawyers don’t wait around for the court or prosecutors to tell them what the case is about. These lawyers get to work building the case themselves from the ground up.
Part Four: Ontario Domestic Violence Charges in Court
a. Be Patient, This Could Take a While
Ontarians facing domestic violence charges call me every week looking for a quick fix. Most want to get the domestic charges dropped right away. Some just want an assurance. “Promise me you’ll get the domestic charges dropped and I’ll hire you,” they say.
My answer is always the same. A promise like that is self-serving. It’s a quick way to land a client. But it’s also highly unethical. “I make no such promise,” I always reply, “And I urge you to reconsider hiring any lawyer that does.”
If domestic violence lawyers could promise an outcome, our system of justice wouldn’t need prosecutors, judges or police. A criminal defence lawyer’s adversaries could just as well be cardboard cut-outs, since we would effectively be calling the shots.
If you are facing Ontario domestic violence charges, you need to be patient. There is a process involved, and although the best domestic violence lawyers know how to navigate it efficiently, it will take time.
The fact is, Ontario domestic charges are complex. They are treated with extreme caution by all justice system participants hired by the state. They are riddled with emotional twists and turns. Complainants who are angry today are conciliatory tomorrow – and filled with rage next week. They involve police. They involve prosecutors. They involve judges. They involve evidence, often lots of it, and often evidence that bears little resemblance to what clients tell us happened at an initial consultation. Most importantly, domestic violence cases involve histories: of love, of substance abuse, of mental health, of related legal proceedings, of past occurrences.
I repeat, therefore: the best domestic violence lawyers never promise to get the charges dropped. Instead, they demonstrate their commitment to the client and a deep knowledge of the legal process.
If you are facing Ontario domestic violence charges, you need to be patient. There is a process involved, and although the best domestic violence lawyers know how to navigate it efficiently, it will take time. In some cases, that time can be as little as 2-4 months. In more serious cases, or cases which proceed to trial, be prepared to fight the domestic charges for a year or more.
b. The Golden Rule: Follow Your Bail, Not Your Heart
This point bears emphasizing. If you are bound by a condition not to communicate with your partner, follow it. If you don’t, you risk turning a small case into a huge nightmare.
I cannot count the number of times I have seen simple domestic violence cases spiral into a series of arrests. All of sudden, professional clients with no prior record and a real shot at getting the domestic charges dropped are in custody for their second, third or even fourth set of charges. At a certain point, their options begin to dissipate. Getting the domestic charges dropped becomes less and less feasible. The option of bail vanishes, and a criminal record becomes inevitable.
To be sure, victims of domestic violence play an important role in determining how and whether domestic charges are dropped or prosecuted. But that role, as with all facets of domestic charges in Ontario, is complex.
Clients who flirt with the conditions of their bail do so at their own peril. In the domestic context, the strong emotions that make parties want to “talk things out” are the same strong emotions that lead to another fight, a neighbour calling the police, and a bad situation becoming signifcantly worse.
If you’re facing domestic charges in Ontario, you need to be strong, calm and committed to the long haul.
c. Remember: the Victim Doesn't Call the Shots