I Have Been Charged With Domestic Assault – What Happens Next?
Domestic Assault – Charge v. Conviction
It is important to recognize that in Canada there is no specific offence of “domestic assault” in the Criminal Code . Domestic assault falls under the sections of the Criminal Code which deal with various types of assaults (Sections 265 and 266). If you are charged with domestic assault, it appears as simply an assault charge. It is also important to understand that there is a significant distinction between being charged with domestic assault and being convicted of it.
In circumstances of alleged domestic assault, it is up to the police to determine whether to arrest you. The police must have reasonable and probable grounds (RPG) to do so which means that those grounds must be objectively justifiable. In other words, a reasonable person placed in the position of the police officer must be able to conclude that there were reasonable and probable grounds for the arrest.
Once you are charged, the Crown Attorney (prosecutor) then determines whether to prosecute your case on the basis of a reasonable prospect of conviction (RPC) . That is to say, whether there is sufficient evidence in relation to the assault to support a finding of guilt against you. This is known as screening your charge. If there is insufficient evidence against you, the Crown Attorney may decide to drop the
The Court Process – What to Expect
Your first court appearance is called a set-date . At this stage, the Crown Attorney will provide you, or your lawyer, with disclosure which is a file containing witness statements, police notes and reports, and all other evidence on which the Crown Attorney intends to rely. If the Crown Attorney has screened your charge, they will advise how they want to proceed with your case.
An assault charge may be prosecuted by way of summary conviction (minor offence) or indictment (serious offence). If the Crown Attorney proceeds summarily, and you are convicted, then you may face a fine of up to $5,000.00, six (6) months in jail, or both (note that you cannot be fingerprinted for a summary conviction offence).
If the Crown Attorney proceeds by way of indictment, and you are convicted, then the punishments range from a minimum sentence of an absolute discharge (a finding of guilt is made, but no conviction is registered and there are no conditions to obey) to a maximum sentence of five years in prison. Where your domestic assault charge is prosecuted by indictment, you are entitled to a trial by jury.
In circumstances where this is your first charge of domestic assault and there are no additional allegations of violence against your partner, you may be eligible for diversion . The diversion program diverts you out of the court system and requires you to accept full responsibility for your actions. Once you have done so, you must then compensate or make restitution for your crime in one or more of the following ways, following which the charge against you is withdrawn:
- Attending and completing a Partner Assault Response (PAR) counseling program
- Completing Community Service Hours
- Providing an apology letter
- Making a charitable donation
- Participating in an youth education program related to the effects of domestic assault
When considering whether an accused is eligible for diversion, a Crown Attorney will take into account the following factors:
- Seriousness of the offence (harm caused to the victim)
- Previous criminal record and past dealings with police
- Victim’s desire to prosecute
- Potential impact of a criminal record on the accused versus the best interests of society
- Peace Bond
Alternatively, the Crown Attorney may seek and obtain a peace bond (Section 810 of the Criminal Code – “Surety to Keep the Peace”) which is a court order that requires you to remain peaceful and not be charged or arrested with additional criminal offences. A peace bond related to a domestic assault charge may also require no contact with the victim as well as a proximity restriction (not permitted within a set distance of the victim).
The criminal justice system is a complicated and intimidating landscape; particularly, when your liberty is in jeopardy. Jeff Mazin knows the lay of the land and is here to help you navigate your way to the best possible outcome. If you have a question or need assistance, reach out and book a free consultation.