What are the Consequences of a First-Time Domestic Assault Charge?

Any domestic assault accusation in Ontario will be taken seriously by law enforcement and if it leads to a criminal charge, you will need to consider a serious defence to avoid consequences that can greatly impact your future.

Domestic assault is treated even more harshly than simple assault because it was carried out on a member of the same household — and this is considered an aggravating factor during sentencing.

Few prosecutors or judges are disposed to show much leniency in these cases and so, if you are charged with domestic assault, it’s important to seek legal advice as soon as possible.

As a first-time offender, you have a better chance of escaping the most severe penalties associated with this charge. Besides, charges can be dropped, false accusations are made and experienced criminal defence lawyers often win cases.

What is domestic assault?

Domestic assault is not included as a separate criminal offence in the Canadian Criminal Code. There is no such thing as domestic assault charges per se. However, any violence committed in a family setting will be considered illegal under one or more of the many provisions for criminal activity covered in the Code.

Any abuse that occurs between people in an intimate relationship will be deemed domestic assault. This abuse need not be physical; psychological or financial abuse may also be considered a form of “assault”. Abuse perpetrated against current/ex-spouses, common-law partners, dating partners and parents/legal guardians and children makes the assault “domestic”.

Depending on the nature of the offence, it could lead to the following types of charges:

• Assault
• Assault causing bodily harm
• Assault with a weapon
• Kidnapping and forcible confinement
• Sexual assault
• Making indecent and harassing phone calls

Remember, the domestic aspect of the offence is usually considered an aggravating factor that will lead to harsher punishments during sentencing.

Is domestic assault an indictable or summary offence?

Whether a domestic assault charge is prosecuted as a summary or indictable offence depends on the severity and circumstances of the assault.

A simple assault is known as a hybrid offence that can proceed summarily or as an indictment. The more serious the criminal offence the more likely it is to be prosecuted as an indictment.

Summary offences are heard at the Ontario Court of Justice. If the Crown elects to proceed by indictment, you can choose to be tried by a judge alone in the Ontario Court of Justice or the Superior Court of Justice or by a judge and jury in the Superior Court of Justice.

What are the penalties for domestic assault in Canada?

The penalties handed down for domestic assault depend on the nature of the assault and the criminal history of the convicted individual:

• For relatively minor offences like making indecent and harassing phone calls: up to two years imprisonment (less a day) for a summary conviction.
• For more serious offences like assault: up to five years for an indictment.
• For sexual assault or assault causing bodily harm: up to 10 years imprisonment for an indictment.
• Aggravated assault or if a child under 16 is sexually assaulted: up to 14 years imprisonment.
• Kidnapping and forcible confinement: an indictable offence that can lead to life imprisonment (with a mandatory minimum sentence of four years if a firearm is used)

Some leniency may be afforded first-time offenders but certain types of assaults carry potentially lengthy prison sentences.

What are the alternatives to jail for first-time offenders?

A judge will consider many factors when sentencing somebody for domestic assault. The needs of the family must be balanced with the need to deter similar offences,

In the case of relatively minor assault charges, a first-time offender is unlikely to spend time in jail and, with strong legal representation, may even escape without a criminal record.

If you’re found guilty of domestic assault and have no prior convictions, the judge has several alternatives to imposing a jail sentence. These include the following options:

• Absolute or conditional discharge: this is generally considered the best possible outcome for an individual convicted of domestic assault. An absolute discharge means you will escape a criminal record. A conditional discharge means that you’ll escape a criminal record if you successfully complete your period of probation.
• Suspended sentence: if you’re convicted of an offence but are placed on probation for a certain period, this is known as a suspended sentence. The defendant is released but expected to meet the conditions detailed in the probation order. On the completion of probation, the defendant is free from the threat of jail time—but any probation violations could lead to additional charges and jail.
• House arrest/conditional sentence: this is where a person is convicted of an offence (without a mandatory jail sentence), the court imposes a jail sentence of two years or less and the judge is convinced that the defendant poses no risk to family members or the wider community. The defendant may be placed under house arrest (instead of going to jail) and be free to work. This punishment comes with conditions (like probation) to minimize any risk to the family or community.

Summary convictions may carry a fine pay a fine of up to $5,000 and the defendant may also be ordered to pay restitution to the alleged victim.

How can a criminal defence lawyer help?

There are several valid defences available in domestic assault cases — and wrongful accusations, violations of rights and case dismissals are common. Proving cases beyond a reasonable doubt can be challenging for the prosecution.

An experienced criminal defence lawyer can help you clear your name. If that’s not possible, the wide variety of sentencing options available to judges in domestic assault cases means that your lawyer can often plead successfully for leniency — especially for first-time offenders.

For the best possible chance of escaping the harsh and long-term consequences of a domestic violence conviction in Ontario, speak to David Anber’s Law Office during a free consultation. As experienced criminal defence lawyers, we can help you understand your legal options at this difficult time.