The Best Defences to a Domestic Assault Charge

Call Susan Karpa, domestic assault lawyer to discuss your charge today.

Just as the phrase implies, a domestic assault is an assault charge that arises in the context of a domestic relationship. Oftentimes disputes between domestic partners or spouses lead to such charges. There are potential employment and family law consequences that can arise with a domestic assault charge.

There is actually no actual charge of “domestic” assault in the Criminal Code. Domestic assault is a charge of assault under the Criminal Code that arises in the context of a domestic relationship such as a spouse, partner, girlfriend, or boyfriend. The assault may include a single act of violence, or a number of acts forming a pattern of alleged assaultive behaviour.
 
An intimate, domestic relationship is defined as a romantic relationship between opposite-sex or same-sex partners. These relationships vary in duration and legal formality, and include:

• Dating relationships.
• Common-law relationships.
• Married relationships.
• Persons who are the parents of one or more children, regardless of their marital status or whether they have lived together at any time.

Prosecutors treat assaults that arise in a domestic context differently than assaults that are not domestic in nature. In Calgary, any matter that involves a domestic relationship where assault charges arise is required to be heard in a designated Domestic Violence Courtroom. This specialized courtroom has personnel who deal specifically with contacting complainants to give them updates on the charges that their spouse or partner is facing.

Domestic assaults are viewed as more serious by the crown and the courts than the same criminal charges in a non-domestic context. When sentencing an offender, the Court will consider the breach of trust between domestic partners as an aggravating factor. In these cases, the crown may seek a harsher sentence. This is why it is important to have the very best criminal defence representation.
 
When a domestic assault incident occurs, the police may choose to arrest neither party, one partner, or both partners. If the police decide to lay charges against an alleged offender, the complainant does not have the right to have the charges dropped, even if they called the police in the first place. Only the crown prosecutor can decide to end the prosecution by having the charges dropped.

Depending on whether you have been charged with a domestic assault for the first time, or if you have prior assault charges on your record, a court may include several penalties and conditions in relation to sentencing if you plead guilty or if you are found guilty by the court. These penalties and conditions may include:

• Jail time.
• A no contact order for your spouse.
• An order requiring you not come within a certain distance of your spouse’s home.
• An order requiring you to only contact your children in the way a family court order allows.
• Enroll in counselling.

This is all to say that it is important that you have the best possible defence available to you for your domestic assault charge. There are several defences that may be applicable, including the defence of self-defence. You are legally justified in using reasonable force to defend yourself against an unlawful assault. However, to successfully argue your actions were self-defence, you will need to prove that you had reasonable grounds to believe that force was being used against you or another person, and that you acted reasonably in the circumstances. Reasonableness is assessed by looking at several factors such as the following:

• The size, age, gender and physical capabilities of the people involved in the incident
• The force or potential threat against you
• Whether a weapon was involved or believed to be present
• The relationship between you and those involved in the incident
• Whether the force you used was proportional to the force used by your aggressor

You may also be able to raise the defence that this was a consensual fight. That is, that the two of you were pushing each other, for example. If there was a consensual fight, then the charge of assault cannot be made out.

Another possible, yet more difficult defence to argue, is that the domestic assault was an accident. If the domestic assault was an accident, you should not be found guilty of a criminal offence as you would lack the mental intent necessary to be guilty of assault.

When facing a domestic assault charge, it is important to retain experienced legal counsel to obtain the best results. An experienced lawyer may be able to have your domestic assault charge diverted by having you attend for counselling, either privately or through a court-approved program. If accepted into the diversion program you may be able to go back home to your partner, if they consent, shortly after completing a few weeks of the program.

Depending on the seriousness of the assault, and your progress in the program(s), once completed, you will either have your charges withdrawn, and be required to enter into a peace bond, or you will be required to plead guilty, but will avoid a criminal conviction.

In some cases, domestic assault charges can be dropped or withdrawn with effective legal representation, leaving clients without criminal convictions.  Contact me to discuss your domestic assault charge today!