How To Win A Domestic Assault Case

Domestic Assault, found in Section 265 and 266 of the Canadian Criminal Code, is not distinct from normal assault charges. Domestic assault trials are unique in that they involve two people who shared an emotional bond at some point in their relationship. Note that under Canadian law, parties need not be married for the case to qualify as domestic assault. The two could be a girlfriend and a boyfriend, a same-sex couple, or even a couple that has since ended its relationship.

Why are domestic violence charges so serious?

Targeting domestic violence cases is one of the top priorities for police and prosecutors in Ontario. The federal and provincial governments have declared domestic violence a “zero-tolerance” crime. Statistics Canada, in its comprehensive Uniform Crime Reporting Survey, found that 1 in 5 violent offences are domestic in nature, as are 1 in every 4 homicides.

As a result of a few high-profile murders and historical unfairness in the law, laws and policies have been written that make it mandatory for police and prosecutors to investigate and prosecute every allegation and 911 call of domestic abuse to the full extent of the law. These “pro-charging” and “pro-prosecution” policies are in full force and effect throughout Ontario.

The Criminal Code lists domestic violence as an “aggravating factor” for sentencing, which means that if you are found guilty of a criminal offence involving domestic violence, the penalty will be harsher. Also, the consequences of a criminal record can affect your ability to work, to travel to the United States, and your immigration status if you are not a Canadian citizen.

What if the person making the complaint does not wish the charge to proceed to court or to trial?

At the court stage, the Crown attorney will usually move forward with a prosecution in cases where there is a “reasonable prospect of conviction”. It is of little importance to the prosecutor that the person making the complaint no longer wishes the matter to proceed to trial.

In domestic situations, a complainant does not have the choice to “press charges” or not. If a complaint of domestic violence is made, the police will arrest and charge the person accused of the offence and the Crown will likely prosecute them regardless of the complainant’s wishes to halt the prosecution. However, in some unique circumstances, it is possible for a complainant to influence a prosecutor’s  decision to withdraw a criminal charge.

Some factors the Crown Attorney will consider in deciding not to press forward with a domestic assault prosecution include:

  • there is no significant physical injury;
  • there is no previous history of intimate partner violence;
  • Crown Counsel has no reasonable grounds to believe there is a significant risk of further intimate partner violence offences between the parties.