What is domestic assault?
Domestic assaults are one of the most common crimes in Canada. They are not defined by the Criminal Code but can include assault with weapon, aggravated assault, assault causing bodily harm, sexual assault and uttering threats, theft, mischief to property; basically, any type of criminal offence that happens in a domestic context.
According to s. 718.2 of the Code, charges of a “domestic nature” are considered an aggravating factor on sentencing, with judges tasked to “take into consideration … evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family.”
According to information from Statistics Canada, domestic abuse – more recently renamed intimate partner violence – ranges from emotional abuse to repeated physical or sexual assaults and even homicide.
As a Supreme Court of Ontario judgment noted in 1989, “Domestic assaults are not private matters, and spouses are entitled to protection from violence just as strangers are.”
Police take these allegations seriously, so if you are facing a charge related to domestic assault, you need experienced criminal counsel at your side to present your case in the best way possible.
How serious of an issue is it?
As a Statistics Canada document notes, “Intimate partner violence can have far-reaching consequences on not only the direct victim, but also on families, communities and society at large. A recent Justice Canada study estimated the cost of one type of intimate partner violence, spousal violence, on Canadian society at $7.4 billion in 2009.”
That number relates to victim costs, such as pain and suffering, counselling expenses and legal fees for divorce. The document notes that third parties (families, employers and social services) also shoulder a financial burden due to these crimes, as do the criminal and civil justice systems.
The StatsCan document states that intimate partner violence accounts for one in every four violent crimes reported to the police. In 2011, there were approximately 97,500 victims of intimate partner violence, representing a rate of 341 victims per 100,000 population. The vast majority of these victims (80 per cent) were women, a finding consistent over the time records have been kept.
What happens after I’m charged?
If someone is facing a domestic violence accusation, the courts will usually impose immediate conditions that prevent the accused from having contact with the complainant. That can be very painful for all involved, which is why counsel for the accused will often seek a written revocable consent, permitting the accused to see and speak to family members, allowing their relationship to continue.
While the victim and the accused can communicate, I always advise them not to talk about the offence or the testimony they are going to give at trial, as there cannot be the appearance that they have changed their story to protect their partner
What evidence can be used against me/for me at trial?
Most domestic assaults occur in private, and are “he said/she said” cases. In those situations, the judge will probably rely on a 1991 Supreme Court of Canada decision that spelled out the process that the trier of fact must go through in order to determine guilt. To summarize, juries and judges are told:
If you believe the evidence of the accused, you must acquit.
If you do not believe the testimony of the accused but you still have a reasonable doubt, you must acquit.
If you are not left in doubt by the evidence of the accused, you must ask yourself whether you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
What penalty could I face?
Assaults range in severity but if they happen in a domestic context, that will be an aggravating factor during sentencing. That is to say that the penalty will be more severe than for those found guilty of an assault not in a domestic context.
With domestic assaults, judges do not normally impose simple sentences but instead a combination penalty that could include jail time and counselling.
Judges know they can’t prevent the guilty party from being in future relationships, so they instead try to teach them other ways to deal with stressors, and that is usually done through counselling, most commonly Partner Assault Response (PAR) programs that are often run by local organizations.
According to information from the Attorney General, these programs “enhance victim safety and hold offenders accountable for their behaviour.”
The 12-session PAR program gives offenders the opportunity to examine their beliefs and attitudes toward domestic abuse, and to learn non-abusive ways of resolving conflict, according to the Attorney General. In addition, the victim is offered help with safety planning, referrals to community resources, and information about the offender's progress.
Does counselling work?
These two stories show the effectiveness – and shortcomings – of PAR programs. According to a CBC story, after a 58-year-old Windsor man pleaded guilty to assaulting his girlfriend, part of his sentence required him to enrol in a PAR program. He wondered why it was necessary since he felt what happened was not his fault; he soon changed his mind.
“It was like a damn eye-opener,” he told CBC. “I thought I knew everything, but once I got into the program, I'm just saying it opened my eyes.
“What you did is you, regardless if you were under the influence of anything or not. That motion that you made was your motion. Regardless of how you look at it as, 'Oh, she made me do it.' No, you did it … You should have thought about that. But I didn't have [any] of those tools.”
Other times counselling fails. According to this story on rabble.ca, a man in Renfrew County killed three women in 2017, including his ex-wife. He had earlier been convicted of assaulting her and ordered to enrol in the PAR program.
“It is highly doubtful that a PAR program would have changed [his] violent treatment of the women in his life,” the story notes. “But it raises questions about the role and effectiveness PAR programs play in increasing victim safety.”
What if the victim doesn’t want me charged?
If the police believe there is evidence of domestic violence they will lay a charge, even if the complainant changes their mind. That decision is up to the police, not the victim. Once that charge is laid only the Crown can have it withdrawn. If the victim does not want to testify the Crown can subpoena them to tell the court what happened.
According to information from the Public Prosecution Service of Canada, it is common for victims in domestic assault cases to “demonstrate reluctance or unwillingness to participate in the criminal justice process … if the complainant refuses to testify, Crown counsel should consider whether other admissible evidence is sufficient to prove the domestic violence offence.”
This case shows that a person can be convicted of a domestic assault, even if the victim does not want to proceed with the allegation. According to a CBC story, a man was charged after he hit and strangled his wife during an argument in their home. She messaged her landlord for help, saying, “[He's] trying to kill me.” But when the case went to trial, she didn't show up to testify, despite being under subpoena. When she finally did testify at a later date, she told the court she didn't “remember anything” about the incident.
The judge convicted the man anyway, saying he suspected the woman was deliberately minimizing the attack in an effort to keep her family together, the story states, and he warned the woman that tactic could have a harmful effect on her son down the road.
“If he is raised to believe that violence is normal between a husband and wife, there is a risk that he will think that such behaviour is acceptable and normal in his own relationships when he becomes an adult,” he wrote in the judgment.
Do I need legal representation?
If you have been accused or charged with any form of domestic assault, you need to seek the advice of an experienced criminal lawyer. A conviction may lead to incarceration, fines, probation, counselling and a criminal record.
Don’t take that risk. I have years of experience in helping defendants decide what is the best way to approach their case. Contact me for a free consultation so we can start planning your best defence.