Consequences For Conviction Of Domestic Assault In Canada

Understanding Domestic Assault Convictions in Canada

Definition of domestic assault under Canadian law

In this post we’ll look at the consequences for conviction of domestic assault in Canada. Domestic assault, also known as domestic violence, is a criminal offense under Canadian law. It refers to any form of physical abuse that occurs within a domestic or intimate relationship. This can include violence between spouses, partners, parents and children, siblings, or any individuals living in the same household.

Domestic assault is not limited to physical violence and can also encompass threats. The applicable sections of the Criminal Code defining assault and the potential consequences of conviction on an assault charge are set out at the bottom of this post.

It is important to note that domestic assault is a gender-neutral crime, meaning it can happen to anyone regardless of their gender. In Canada, domestic assault is taken seriously by the criminal justice system and, upon conviction there are significant penalties including imprisonment. It is crucial for victims of domestic assault to seek help and support from law enforcement, shelters, and support services to ensure their safety and well-being.

The legal process for domestic assault charges

A domestic assault charge is a serious legal matter that can have significant consequences for those involved. The legal process for domestic assault charges typically begins with a complaint by the victim or a witness to the alleged assault. if the investigating officers believe that there are reasonable and probable grounds to believe that an offence has been committed, they will arrest the person accused of the assault. Police will then prepare a report based on the allegations of the victim and the results of their investigation.

If an arrest is made, the accused will be taken into custody and, depending on whether the accused has a prior record, may be released on what is called an ‘officer-in-charge’ (OIC) undertaking. This means that the person under arrest promises to abide by the conditions of release which usually include terms that require that the person stay away from the victim, the victim’s home or place of employment. Other conditions may be imposed as well such as a term requiring that the person abstain from the consumption of alcohol or drugs.

If the person under arrest is not released on an OIC undertaking, the person will be brought before a Justice of the Peace (JP) for an initial appearance. In Canadian law, a person must be brought before a JP within 3 days of arrest. At this initial appearance, the JP will inform the accused of the charge or charges against them and will set the terms of the bail.

Depending on the circumstances, a surety may be required. A surety is a person who comes to court and promises to supervise an accused person while they are out on bail. A surety also promises an amount of money to the court if the accused doesn’t follow one or more of the bail conditions or doesn’t show up to court when required. An accused person may be required to reside with the surety until the charge or charges against them are resolved.

The next step in the legal process is the arraignment, where the accused will enter a plea of guilty or not guilty. If the accused pleads not guilty, a trial date will be set. During the trial, both the prosecution and the defense will present evidence and arguments to support their case. If the accused is found guilty, they will be sentenced by the judge, which may include fines, probation, community service, or jail time. It is important for individuals facing domestic assault charges to seek legal representation to ensure their rights are protected throughout the legal process.

A lawyer can review what is called the ‘disclosure’ from the Crown Attorney’s office to assess whether there is sufficient evidence to support a conviction and, if so, the proper course of action to be adopted. If there is, in the lawyer’s opinion, sufficient evidence which, if accepted by the court, to support a conviction, the lawyer may recommend a guilty plea at the earliest possible opportunity.

The lawyer will likely meet with an assistant Crown Attorney to attempt to negotiate the terms of a resolution if the lawyer’s client enters a guilty plea. Potential dispositions can range from an absolute or conditional discharge (which may result in no criminal record) or, alternatively, the assistant Crown may insist that a conviction be registered and that a period of probation is required and, if so, the terms of the probation can be negotiated. Ultimately, the assistant Crown Attorney may insist that jail time is a necessary component of the disposition and, if so, the length of time the person convicted must remain in custody may be negotiated.

Generally speaking, an assistant crown will often offer terms that are more favorable than what might be imposed by a judge at trial. That offer is made to avoid the necessity of a trial thereby saving valuable court time and other resources.

The lawyer will then advise the client of the terms of the proposed resolution and, if the client accepts the terms, the accused will appear in court and enter the guilty plea. Note that the presiding judge can reject the terms of the proposed resolution agreed to by the assistant crown attorney and the client’s lawyer if the judge is of the view that the terms of the proposed resolution amount to a departure from what justice requires. If that happens, a trial on the charge or charges may be required.

Immediate and Long-term Repercussions of a Domestic Assault Conviction

Overview of potential legal consequences

Individuals convicted of domestic assault may face penalties such as fines, probation, community service, mandatory counseling or anger management classes, and in some cases, jail time. A conviction for domestic assault can have long-term consequences, such as a criminal record, which can impact a person’s ability to find employment, secure housing, obtain professional licenses or even to rent an apartment in the future.

In some cases, individuals convicted of domestic assault may also be subject to restraining orders or orders of protection. A term of probation will almost inevitably be included which will only allow contact with the victim with her/his written revocable consent. Further terms may restrict the convicted person’s ability to possess firearms.

The impact on custody battles and family dynamics

When one parent is convicted of domestic assault, it can have a significant impact on the determination of custody of children and other family dynamics. If custody of a child or children is an issue, the safety and well-being of the child are of paramount importance and a conviction for domestic assault can raise serious concerns about the convicted parent’s ability to provide a safe and stable environment for the child.

Depending on the circumstances, the non-convicted parent may take the position that sole custody of the children ought to rest with her/him or that supervised visitation arrangements by the person who has been convicted to ensure the child’s safety. A conviction for domestic assault can also significantly affect the family dynamics as it can create tension, distrust and fear within the family unit.

The non-convicted parent may struggle with feelings of anger, betrayal and fear for their safety and the safety of the children, while the child or children may experience confusion, anxiety and trauma as a result of the domestic violence especially if they have witnessed the violence. It is important for families in this situation to seek individual and/or couples counseling and support to navigate the complex emotions and challenges that arise from a conviction for domestic assault.

Mandatory treatment programs and their efficacy

In cases where an individual is convicted of domestic assault, many jurisdictions require them to participate in mandatory treatment programs as part of their sentencing. These programs are designed to address the underlying issues that may have contributed to the individual’s violent behavior, such as anger management problems, substance abuse issues or a history of trauma. A judge imposing the terms of disposition may leave some of the terms to the discretion of the probation officer.

The goal of these programs is to help the individual understand the root causes of their violent behavior and learn healthier ways to cope with their emotions and resolve conflicts. Research on the efficacy of mandatory treatment programs for domestic assault offenders is mixed. Some studies have found that these programs can be effective in reducing rates of re-offending and improving the overall well-being of participants, while others have found little to no impact.

Factors such as the quality of the program, the capacity and willingness of the individual to engage in, and embrace, the program as well as the level of support they receive from their families and community can all play a role in determining the success of these programs. More research is needed to better understand the most effective approaches to treating domestic assault offenders and reducing rates of recidivism in this population.

Navigating Life After Conviction: Support Systems and Rehabilitation

Rehabilitation and support programs available for offenders

When someone is convicted of domestic assault, it is important that they receive the necessary rehabilitation and support they need to address the underlying issues that led to their violent behavior. There are a variety of programs available for offenders to help them understand and change their abusive behavior.

One common program is anger management therapy, which helps individuals gain some insight into the personal issues that led to the violence and to learn how to control their emotions and respond to conflict in a non-violent way. Another option is counseling, which is intended to help offenders address any underlying issues such as substance abuse or mental health issues that may have contributed to their violent behavior.

Some offenders may be required to attend group therapy sessions where they can learn from others who have also struggled with domestic violence. The goal of these programs is to help offenders accept responsibility for their actions, understand the impact of their behavior on their victims and learn healthier ways of interacting with others.

By participating in these rehabilitation and support programs, offenders have the opportunity to break the cycle of violence and make positive changes in their lives. Success, of course, depends on the ability of the individual to understand the aspects of their personality that led to the behavior and their willingness and ability to overcome those issues. It is important for victims of domestic violence to understand that, in some individuals, the issues may be so deep-seated that it may be very difficult for such a person to come to grips with those issues.

Advice for families dealing with the aftermath of a conviction

Dealing with the aftermath of a conviction for domestic assault can be a challenging and emotional time for families. It is important for families to prioritize their safety and well-being during this difficult period.

One of the first steps families can take is to seek support from a therapist or counselor who specializes in domestic violence. These professionals can provide a safe space for family members to process their emotions and develop coping strategies.

It is also important for families to establish boundaries and create a safety plan to protect themselves from any future incidents of violence. A term of probation may require the person to stay away from the victim, the victim’s home or place of employment unless the victim provides a written consent to the contact. That consent can be revocable. A term of probation may also include that the person not contact the children unless authorized by a family court order.

Such terms can be onerous. The person convicted may have to seek alternative housing arrangements while the period of probation is in effect. This can create a significant degree of financial and other forms of stress. Young children, in particular, may not understand exactly why a parent is now absent from the home. That, in itself, may be traumatic for children. If a term of probation prohibits contact with children unless authorized by a family court order, the family will face the additional stress that accompanies a family court proceeding.

Families should also consider attending support groups or seeking legal advice to understand their rights and options moving forward. It is of the utmost importance for families to prioritize their own well-being and safety during this challenging time. By seeking support and taking proactive steps to protect themselves, families can navigate the aftermath of a conviction for domestic assault with strength and resilience.

I hope you have found this content useful. If you have questions, please ask in the ‘Leave a Reply’ section below. You will find the sections of the Criminal Code that deal with assault and it’s consequences at the bottom of this post.

 Grant Rayner*

*Grant is a member of the Law Society of Ontario. He has permission from the Law Society of New Brunswick to practice as a visiting lawyer with the firm Langdon Law pending the transfer of his membership with the Law Society in Ontario to the Law Society of New Brunswick.

If you are separating from your spouse in the Upper St. John River Valley, call Grant at Langdon Law: 506.497.2560. Offices in Woodstock, Hartland and Florenceville-Bristol to serve you. Grant has been in practice for more than 39 years and has the experience, sensitivity and maturity to guide you through this difficult period in your life.

Assault

• 265 (1) A person commits an assault when
  • (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
  • (b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
  • (c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
• Application (2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
• Consent (3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
  • (a) the application of force to the complainant or to a person other than the complainant;
  • (b) threats or fear of the application of force to the complainant or to a person other than the complainant;
  • (c) fraud; or
  • (d) the exercise of authority.
• Accused’s belief as to consent (4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.

• R.S., c. C-34, s. 244
• 1974-75-76, c. 93, s. 21
• 1980-81-82-83, c. 125, s. 19

Assault

266 Every one who commits an assault is guilty of

• (a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or
• (b) an offence punishable on summary conviction.

• R.S., c. C-34, s. 245
• 1972, c. 13, s. 21
• 1974-75-76, c. 93, s. 22
• 1980-81-82-83, c. 125, s.

Assault with a weapon or causing bodily harm

267 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on summary conviction who, in committing an assault,

• (a) carries, uses or threatens to use a weapon or an imitation thereof,
• (b) causes bodily harm to the complainant, or
• (c) chokes, suffocates or strangles the complainant.

• R.S., 1985, c. C-46, s. 267
• 1994, c. 44, s. 17
• 2019, c. 25, s. 93