Domestic assault allegations usually immediately result in separating the accused from their family members through court or police imposed conditions. Accused people commonly are required to leave their own homes, even if they own, pay for, and live there. It is important to immediately retain qualified legal counsel upon any allegation being made and before doing or saying anything. The slightest misstep could irreparably harm your case. Our domestic assault lawyers at Zargarian Litigation are very experienced in these matters and with these courts, and can act as your advisors and advocates.
Fortunately, there are various ways to resolve domestic assault allegations, and a capable and experienced lawyer could help you. Whether you want to make a good deal and move on with your life, reconcile with the complainant, vigorously challenge the allegations, or simply change your conditions so you can speak and live with your family members again, our lawyers can assist you.
Legal Definition of Assault
Criminal Code Section 265(1) states that assault is committed when:
- a person applies intentional force on another, directly or indirectly, without the other person giving consent
- a person threatens or attempts to apply force to another person by an act or a gesture, and either causes the other person to believe that they have the ability to cause harm or, in fact, have the ability to cause harm
- a person impedes, accosts, or begs another person while openly carrying or wearing a weapon, or any imitation of it.
Section 266 lays out the punishment:
Every one who commits an assault is guilty of
- an indictable offence and is liable to imprisonment for a term not exceeding five years; or
- an offence punishable on summary conviction.
The definition of assault is very broad. Any type of touching without consent, beyond the most marginal touching, is an assault. Something as relatively minor as a push can be an assault.
A common defence is self-defence or defence of other: that you used reasonable force to repel an attack. Self-defence is easy to understand in a common sense way, but its application in law is clouded in convoluted tests, legal theories, evidentiary requirements, and the uncertainty of what a court will believe or find reasonable.
Prosecution of Domestic Assault
Assaults and domestic assaults are prosecuted under sections 265 and 266 of the Criminal Code. This is true whether assaults are committed against a total stranger, a family member, or a spouse. When an assault involves bodily harm or the use of a weapon, it is categorized as “assault causing bodily harm” or “assault with a weapon” and dealt under section 267 of the Criminal Code.
Assault that results in the wounding, maiming, disfigurement or endangering the life of the victim is prosecuted under section 268 of the Criminal Code as “aggravated assault.” This is the most serious type of assault and is commonly charged in shooting, stabbing, or severe beating cases. The range of sentence for aggravated assault is 2 – 6 years, though much shorter and longer sentences are possible.
The relationship between the victim and accused is legally relevant for the purposes of sentencing. Assaulting a spouse is an “aggravating factor” on sentencing, which means it tends to attract more severe punishment. That being said, our lawyers have much experience and success in obtaining favourable resolutions and deals in these kinds of cases. If you’d like to know more about the prospects of your case, please call or email our office.
Maximum Jail Sentence for Domestic Assault
The maximum imprisonment for assault is between 6 months and 14 years depending upon the type of assault. For ‘simple’ assault, the maximum sentence is 2 years or 5 years, depending on whether you are charged “summarily” or “by indictment.” That’s a decision that the Crown prosecutors make based on their assessment of the severity of the allegation.
Summary offences are supposed to indicate less serious versions of an offence, whereas indictable offences are supposed to indicate a more serious version. Being charged by indictment carries a risk of a greater punishment, but it can also grant you greater rights. For assault-based offences, a charge by indictment gives you right to a trial in a higher court, with the option of a jury. If the maximum sentence is 14 years, you also have a right to a preliminary inquiry, which is like a mini-trial before the ‘real’ trial. These are complex matters so please our office to learn more about the options in your case.
The maximum sentence for assault with a weapon or causing bodily harm ranges from 2 years to 10 years, depending on whether you are charged summary or by indictment. Aggravated assault is always indictable and carries a maximum sentence of 14 years.
Definition and Prosecution of Threats
Threats are prohibited by section 264.1 of the Criminal Code and defined as:
Knowingly conveying, uttering, or causing another person to receive a threat to:
- destroy, burn or damage personal or real property
- injure, kill, or poison any bird or animal that is the property of another person
- cause bodily harm or death of another person
Threatening can have a maximum sentence of up to 5 years.
Bail in Domestic Violence and Spousal Assault
If you are alleged to have threatened or assaulted your spouse, child, or family member, you will either be released on conditions by the police, or brought into court to have a bail hearing. A bail hearing happens when a court decides whether you can be released while your case is pending or you need to be detained in custody. Bail is a critical stage in a case because it’s the difference between being free or being in jail while your case is going on. If you are denied bail, and therefore detained in custody, you will receive no compensation or apology even if you defeat the case. That is why it is important to call a lawyer at the very outset of your case, before you make any irreparable errors.
If you are granted bail and allowed to be free, you will have conditions. These conditions can be very demanding and have a big impact on your daily life. In almost every case, you will have conditions preventing contact with the complainant or alleged victim of the charge, and you will not be allowed to go anywhere they are or live. This can include your own home. It is also common to have prohibitions against contact with your children. In other cases, you may have further conditions, like having to place a cash deposit with a court, having to secure someone called a ‘surety’ to supervise you, or being on a restrictive curfew.
The good news is that we can help you with all these matters. We can represent you at a bail hearing and argue for your release and freedom. We can also argue for a minimal degree of conditions. If you are not released, we can appeal to a higher court for your release. If your release conditions are too restrictive, we can discuss strategies for having them relaxed down the road.
It is important to obey all court-ordered bail conditions. Otherwise, it may lead to further charges of “breach of recognizance” or “failure to comply.” It takes helpful and experienced lawyers to understand the law generally, but also the individual circumstances of your specific case, to advocate for your liberty.
Legal Representation Is Critical in Domestic Assault
As discussed in length above, an immediate and inevitable result of an allegation is almost always at least some conditions being placed on your freedom. They can be onerous and restrictive, but may be changed.
Conditions are temporary because they last only until the case is concluded. More permanent are the consequences of a conviction. A conviction can lead to a criminal record, which will follow you for life and can impact, among other things, employment, travel, and your reputation in the community.
The good news is that our lawyers have been successful in preventing criminal records in many domestic violence allegations by using various legal, procedural, and strategic tactics born out of experience and familiarity with the process and its participants. To learn what the options are in your specific case, and your prospects of avoiding a criminal record, please call our office.