Domestic Assault

Domestic Assault

If you have been charged with domestic assault in Calgary, the relationship at the centre of the allegation shapes how the case is investigated, prosecuted, and resolved — an experienced criminal lawyer can help you understand the process and your options from the outset.

---

Domestic assault is really just 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. There is no actual charge of “domestic” assault in the Criminal Code.

Prosecutors treat assaults that arise in a domestic context differently than assaults that are not domestic in nature. In some jurisdictions, such as Calgary, there is a designated Domestic Violence Courtroom where any matter that involves a domestic relationship where charges arise is required to be heard. Those specialized courtrooms often have personnel who deal specifically with contacting complainants to give them updates on the charges that their spouse or partner is facing.

Domestic assault cases are often the product of disputes between spouses, and can have devastating effects on employment, and family law proceedings.

---

What Happens After a Domestic Assault Charge

What is a Domestic Assault?

A domestic assault occurs in a relationship between two or more people. They may be married, dating, living common law or have a family relationship. Domestic assaults can include:

• Threatening words.
• A gesture or an action meant to intimidate.
• A physical assault on another person.
• Implying physical harm or a threat against another person.

According to information from Statistics Canada, domestic abuse – more recently renamed intimate partner violence – ranges from emotional abuse to repeated physical or sexual assaults and even homicide. While there is no charge in the Criminal Code called domestic assault, some of the common charges laid after police are called to a residence include aggravated assault, assault causing bodily harm, sexual assault, uttering threats, theft or mischief to property.

Why Do I Need a Lawyer with These Charges?

The judicial system allocates significant resources to prosecuting those charged with this crime. If you have been arrested for any form of assault in a domestic setting, you need an experienced defence lawyer at your side to help navigate the legal process and present your case in the best way possible. The penalties can be severe, including jail time, not to mention the impact on your family life, social standing and employment opportunities.

What is a No-Contact Provision?

When there is an allegation that one family member has committed an assault against another, a no-contact condition is invariably put in place. They prohibit the accused from having any contact or communication with the complainant and bar them from returning to the family home. If they need to retrieve property, such as clothing, that has to be done in the presence of a police officer.

A no-contact order prohibits both contact in person or by using a telephone, email or other electronic methods. It also bars the accused from using a third party to pass messages to the complainant. If you violate a no-contact order you could be placed in custody.

It is possible for me to ask a court to remove or modify your no-contact order. In making that decision, the court will consider issues such as:

• The nature of the allegations.
• Does the complainant want to have contact with the accused?
• Does the accused have a criminal record involving domestic abuse charges?
• Does the accused have a history of assaulting, threatening, or stalking a domestic partner or anyone else?
• Are there any alcohol, drug or mental health issues?
• Does the accused have access to firearms or any other weapons?
• Has the complainant received advice about their rights?

---

Evidence in a Domestic Assault Case

After police receive a call about an alleged domestic assault, the accused is usually taken away in handcuffs as officers gather evidence. The main types of evidence include testimony from those in the home, photographs, videos and medical records. Each has shortcomings, which a skilled defence attorney like myself can bring to the attention of the court. 

The court often has to decide who to believe

Witness statements can be from the complainant, the accused, neighbours, family members, or anyone else who heard or saw the alleged domestic incident. In many cases, the complainant and the accused were alone when the alleged incident occurred, leaving the court left to weigh which “he said/she said” testimony has the most credibility. As your defence attorney, I will look and listen for inconsistencies, especially if what the complainant told the police at the time of the arrest differs from the testimony they give in court.

It is not uncommon for complainants to fabricate an incident or exaggerate the severity of what happened. As your lawyer, I will raise issues about the accuser’s credibility if that is warranted and expose any exaggerations and omissions to the court. My ability to find inconsistencies in testimony is important, as that will show the court that the witness is simply not reliable.

Photographs do not always tell the full story

Visible injuries on both the complainant and accused will be photographed by police. If the complainant has a black eye or bruises, that could indicate they were assaulted. But some claims about domestic assault are often not made until weeks after the incident. If the alleged victim has photos that show injuries, can they prove when those photos were taken? And some people exaggerate an injury, using makeup and low lighting to make it seem worse. In every case, it is up to the crown to prove that you caused harm to the other person.

Video evidence can work both ways

Many people have video cameras in their homes, even on their doorbells. If you are accused of entering someone’s home and assaulting them, your actions, or at least entry to the home, may be captured on video. Conversely, if you are unjustly accused of assault, an in-home video camera will show that you did nothing wrong in your interactions with others. And if you were not even there at the time of the alleged incident but were instead out shopping, a video from a store’s camera may bolster your defence.

The accused is always presumed innocent

In any Canadian criminal trial, the crown has the burden to prove that the defendant is guilty beyond a reasonable doubt. If not, the judge/jury must acquit them, as it is not up to the defendant or their lawyer to prove innocence.

The Supreme Court of Canada has said it is not necessary that the jury believe the defendant’s evidence to acquit them, in a landmark ruling.

“First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.”

There are false accusations of abuse

Judges have recognized the danger posed by false allegations of domestic abuse. In a 2017 case, the judgment reads: “To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing a burden on him to prove his innocence. That is antithetical to the fundamental principles of justice enshrined in our constitution and the values underlying our free and democratic society.”

---

Getting Domestic Assault Charges Dropped or Withdrawn

Is There a Chance of Having the Charge Withdrawn?

Some of my clients may admit they committed a domestic assault but that it was an isolated incident, perhaps brought on by the stress caused by the COVID-19 pandemic. If you have no previous involvement with the police and there were no children in the home, plus there is no evidence of stalking or controlling behaviour, there is a chance the crown may be willing to drop the charge. The court may attach the condition that you have to enroll in a counselling program. These programs are designed to enhance victim safety while holding offenders accountable.

What is a Peace Bond?

If you admit to the domestic assault but want a chance to prove that you can be trusted not to reoffend, I may be able to convince the court that a peace bond is appropriate. A peace bond is “a protection order made by a court under section 810 of the Criminal Code. It is used where an individual (the defendant) appears likely to commit a criminal offence, but there are no reasonable grounds to believe that an offence has actually been committed.” It is up to the crown prosecutor if they will agree to offer you a peace bond.

With any peace bond, the court may impose specific conditions to ensure that the complainant does not feel threatened. Those can include that you:

• Keep the peace and be of good behaviour.
• Not to contact or visit the person, their spouse or family members.
• Abstain from using non-prescription drugs or alcohol.
• Not own or possess any weapons.

You may also be asked to pay, or promise to pay, a refundable surety (cash bond) to the court that could be forfeited if you breach any conditions of the peace bond. The charges will be dropped upon you entering into the peace bond and the peace bond will expire after the term, usually a year.

What if the Complainant Wants to Drop the Charges?

Any decision about dropping charges will be made by the crown attorney, not the complainant. While the complainant’s wishes are taken into account, they will not necessarily result in charges being dropped. The reasons for that were spelled out in 2001 by Alberta’s Court of Appeal when it was asked to decide whether victims of crime have the authority to decide whether a prosecution should proceed. The judgment notes: “that responsibility can only be discharged by qualified prosecutors who have the training, judgment and courage to make the necessary decisions inherent in every prosecution … many times these decisions will be difficult and even unpopular, but the responsibility for making them must always rest with the Crown and not with victims of crime, or other interested parties. Abdication of this prosecutorial responsibility to others who are interested in the outcome of the case, but have little or no understanding of the complexities, or even the basic tenets of our justice system, is wrong, and represents a serious threat to the fair administration of criminal justice.”

Recent Case Results

Frequently Asked Questions

I am an experienced Calgary criminal lawyer defending domestic assault charges. I can help you to work towards avoiding a criminal conviction and minimizing the negative personal impact of these kinds of allegations. Contact us now for a 587-888-7149 free consultation.

My comprehensive FAQ section provides in-depth answers to many common concerns in all areas of criminal law.

Disclaimer: General information only. Not legal advice. Viewing this content does not create a solicitor-client relationship.