Experienced Criminal Lawyers

How to Defend Domestic Assault Charges in Canada

Domestic violence occurs within families or intimate relationships, generally between spouses, common-law partners, boyfriends and girlfriends, children, etc. It is considered an assault when a victim accuses the defendant of kicking, hitting, punching, pushing, stabbing, stalking, making threats, or doing anything that causes bodily harm. According to a 2019 statistics, domestic violence in Canada results in the killing of at least one woman every six days.

The provincial and federal governments in Canada have declared domestic assault a “zero-tolerance” crime, given its severe impact on women and children. It is therefore taken very seriously by both the police and prosecutors.

Let’s first understand what constitutes domestic assault, discuss the available defence options and when you need to contact domestic assault lawyer in Calagary if you face allegations of domestic assault.

Is Domestic Violence a Crime in Canada?

The Criminal Code of Canada does not list family or domestic violence as a specific offence. Most violent acts are considered crimes, and domestic assault falls under sections 265-268, dealing with different types of assaults.

According to the Ontario Violence Protection Act, domestic violence is defined as the direct physical or emotional abuse of a victim or the victim’s child or relative.

While the Canadian laws consider domestic violence an assault against family members, it is not limited to incidents involving intimate partners and extends to persons not living in one address. That means, for example, a person may complain of domestic violence against a former spouse.

According to the enhanced Bill C-75, offences include assault (causing bodily harm with a weapon, and aggravated assault.) The amended Criminal Code includes the following offences, too, in the conduct of domestic violence:

• Kidnapping and forcible confinement
• Sexual assault (causing bodily harm, with a weapon, and aggravated sexual assault)
• Criminal harassment
• Uttering threats
• Homicide

Canadian Courts take domestic violence allegations very seriously, thus, emphasizing the need for persons charged with domestic assault to have an experienced and knowledgeable lawyer to assist them in the case. A lawyer who can answer questions, such as:

“Can you go to jail for verbal abuse in Canada?”

And the answer is yes. Uttering threats is also considered an offence and requires the skill and knowledge of an experenced criminal lawyer.

Types of domestic violence in Canada

Across Canada, definitions of domestic violence vary. In Ontario, for example, the Violence Protection Act defines domestic violence as direct physical or emotional abuse against an intimate partner or the complaint’s relative or child.

The Act further elaborates on domestic violence as:

• An intentional application of force, directly or indirectly, causing the complainant to fear for their safety. This does not include any act of self-defence.
• An assault arising out of an intentional or reckless act or an omission, resulting in bodily harm or damage to property.
• Uttering threats that cause the complainant to fear for their safety. This also includes any act or omission or threatened act.
  Forced physical confinement.
• The act or threat of assault, exploitation, molestation, or violence of a sexual nature.
• A series of collective acts including following, contacting, communicating with, observing, or recording any person, that causes the applicant to fear for their safety.

Domestic violence in Canada can be categorized into the following types:

1. 1. Physical. Any direct or indirect physically aggressive behaviour. It also includes withholding care or physical needs or the threat of physical abuse.
   2. Psychological. This is a form of emotional abuse and includes behaviour seeking to control another person through fear, insecurity, and manipulation. Verbal abuse also falls under this category.
   3. Sexual. This type of domestic violence involves using sex exploitatively or forcing sex on an intimate partner or a relative. It also includes forcing a partner to watch or participate in pornography and the use of sexually degrading language in order to belittle the partner.
   4. Criminal Harassment. This is a form of harassment that includes behaviour like stalking, attempting repeated physical or telephonic contact, or any other conduct that would cause a normal person to fear for their safety or the safety of their immediate family.

   Who is Most Affected by Domestic Violence in Canada?

   Domestic violence, also known as spousal or intimate partner violence (IPV), is a common form of gender-based violence and can be perpetrated by a current or former spouse or intimate partner. As mentioned briefly above, it can occur:

   • In a marriage, between cohabiting partners, or those currently dating
   • Regardless of gender or sexual orientation
   • During or after the end of a relationship
   • Irrespective of whether the couples are living together or sexually intimate with each other

   Data from law enforcement agencies show that women make up the majority of victims of IPV or intimate partner homicides. Like with many other forms of violence, a large percentage of IPV often goes unreported for various reasons, including the fear of social stigma, a belief that it is a personal matter, or a lack of trust in the legal system.

   Let’s look at some pertinent facts:

   • According to statistics, in 2019, of the 107,810 people in Canada aged 15 and above who were victims of IPV, 79% were women.
   • The rates of IPV were also 3.5 times higher among women than men.
   • Young women (ages 15-24) were five times more likely to be sexually assaulted and three times more likely to be physically, emotionally, financially, and psychologically abused than women aged 25 years and older.
   • 61% of indigenous women in Canada were more likely to have experienced IPV than non-indigenous women (44%).
   • Approximately 67% of lesbian, gay, bisexual, transgender, queer, two-spirit, or people of sexual orientation not considered heterosexual had experienced some type of IPV in their lifetime.
   • Over 55% of women with disabilities reported experiencing some form of IPV.
   • 29% of women belonging to ethno-cultural groups considered minorities experienced some form of psychological, physical, or sexual violence from an intimate partner.

   Can Domestic Violence Charges be Dropped in Canada

   The short and sweet answer here is no. Since Canada has a zero-tolerance policy against domestic assault, the police will almost always lay arrested the accused and lay criminal charges.

   However, prosecutors can decide whether or not to continue a prosecution. If there does not seem to be a “reasonable prospect of conviction,” which means the accused does not stand a chance of getting a guilty verdict, the prosecutor may withdraw charges.

   Additionally, the prosecutor may withdraw the charge if prosecuting it is not in the public’s interest.  It is your lawyer’s job to demonstrate to the prosecutor why continuing the prosecution doesn’t meet these two criteria.

   What’s also important to note is that while alleged victims in Canada cannot drop charges of domestic assault against an accused, a prosecutor may be influenced by what they say. An alleged victim can also recant their statements, not show up in court for the trial, or may forget or be unable to recall what actually transpired because of the following reasons:

   • Trauma from the incident,
   • Under the influence of drugs or alcohol,
   • Mental health issues, and/or
   • Memory problems.

   In such cases, your lawyer may demonstrate that this evidence is unreliable and push the prosecutor to stop the prosecution.

   Conclusion

   The laws concerning domestic assault are complex, and if you have been implicated in a domestic assault or IPV case in Canada, you should seek the help of a skilled and experienced criminal defence lawyer. While you can certainly self-represent yourself, we would advise against it because representing yourself without sufficient legal knowledge or experience may lead to disastrous results.

   Given that domestic assault cases are serious, you need to be backed by a criminal lawyer who fights serious charges in court every day and who can best represent you without getting emotionally invested in the case.

   When it comes to your domestic violence case, like in any case, it is best to consult with your lawyer before speaking with the cops, as anything you say during your interrogation can be used against you during your trial.

   The best way to get your charges dropped is to be represented by a criminal defence lawyer who can meet with the prosecutor and discuss why your charges should be withdrawn.

   If you or a family member is facing allegations of domestic assault, you need the help of an experienced criminal lawyer or a domestic assault lawyer to help you wade through the legal minefield. At Alberta Legal, our team of skilled criminal lawyers can help you understand how the criminal law works, avoid a criminal record, or find an out-of-court solution to get your charges dropped. Contact us today for a free consultation.