Domestic Assault Charges

Defending Domestic Assault Charges (s. 266) in Toronto, Etobicoke, North York, Scarborough, Newmarket and throughout Ontario.

Being charged with a criminal offence is difficult for anyone, but it can be especially devastating for someone charged with Domestic Assault under s. 266 of the Criminal Code.  Being charged with this type of offence can result in being:

  • Arrested at home or at work.
  • Prevented from living in the family home.
  • Prevented from returning to the family home except once with a police escort.
  • Prevented from communicating with your spouse, boyfriend or girlfriend.
  • Encountering problems seeing your children or spending time with them.

The lawyers at Berkes Law can help answer these and other questions regarding your Domestic Assault s. 266 Criminal Code charges and other domestic related charges. 

What is a “domestic assault?” 

A domestic assault involves “intimate partners”, which the Criminal Code of Canada defines as involving:

  • Current or former spouses;
  • Current or former common-law spouses; or
  • Current or former dating partners.

If a criminal case involves two people who fall into one of the above categories, it will proceed very differently through the criminal justice system. 

A zero-tolerance approach by the police: 

Firstly, the police have a zero tolerance policy in charging cases of domestic assault.  In cases where an intimate parter alleges physical violence or threats, the police will charge the other partner. 

It does not matter that there is no evidence beyond what one partner says.  People will often ask, “how could the police charge, as there is no evidence of an assault?”  The only evidence the police need to charge someone (and the only evidence legally required to convict someone) is the “victim’s” word that it happened.  The police policy is to charge first and sort out “proving” the case later. 

In situations where both parties are alleging violence, police will often decide one partner is the “victim” and the other is the “abuser.”  Once the police make this decision, the system will continue to reinforce that belief and it is often difficult (though not impossible) to have the charges withdrawn.

Conditions on release: Undertakings and Bail 

Once the police arrest someone, they decide how to release that person, now referred to as the “accused.”  The police can either release an accused from the station or hold an accused for bail in which case they will be transported to court for a “bail hearing.”

For additional information on the law regarding undertakings and bail please see the Bail / Release article.

Release from the station Undertaking: 

The police can ask an accused to sign an Undertaking in order to be released from the station.  Those conditions can be changed as quickly as the next day in court so there is generally no downside to signing the conditions in order to get out of custody as quickly as possible.

In the case of domestic assaults, the three most common conditions that an accused will have to follow are:

  1. Not to communicate with the intimate partner.  There may be exceptions for non communication the most common being:
    1. Through counsel for the purpose of family law proceedings.
    2. Through a mutually agreed upon adult third party for the purpose of arranging access to the children.
    3. In some cases via email, text message, our family law wizard, parent briefing book or any form of communication reduced to writing for the purpose of custody and access to the children.
  1. Not to go anywhere near your intimate partner, which will likely set out as follows, “Not to attend with 100 meters of any residence, place of employment, place of education, place of worship or anyplace you know “your partner” to be.”
  1. Not to have any weapons as defined by the criminal code.  In addition to things that we all recognize as weapons: firearms, ammunition, cross-bows, explosives, etc. The Criminal Code defines a weapon as any object that an accused uses as a weapon (e.g. a kitchen knife used to assault someone). 

The lawyers at Berkes Law can help you get these Domestic Assault release conditions changed quickly. 

Bail Hearing: 

If the Police do not feel that an accused will follow the conditions of an Undertaking or they feel it will be necessary for a member of the community to supervise an accused (called a Surety), they will take the accused to court either the same day or the following day (if an accused is arrested outside of court hours).  If you are held for bail, you may need a Surety

Sureties:

A Surety is someone who knows you well, can supervise you and that a court believes you will listen to (e.g. a close friend, a relative, a boss, etc.). They generally come to court or fill out a form indicating that they are prepared to act as a Surety.  You must follow all reasonable requests of your Surety.  If at some point your Surety does not feel you are listening to them, then he or she can go to the courthouse and request to be removed as your Surety.  If this happens, a warrant will go out and if the police find you, they will arrest you and take you to jail.  You will only be released from jail if your Surety once again agrees to supervise you or you find a new Surety

Prosecution Onus:

A bail hearing is a chance for the prosecution to convince a Judge or Justice of the Peace to either:

  1. Keep you in jail until you have a trial or plead guilty, or
  2. Release you from jail with conditions (similar to those mentioned above) and either with or without a Surety to supervise you.  Generally speaking, in cases of domestic assaults, the Courts generally want to have a Surety before agreeing to release an accused at a bail hearing.

Reverse Onus: 

Normally it is up to the prosecutor to show why an accused should be held in jail.  There are exceptions to this, where it is up to an accused to show why they should be released.  Such is the case where the accused is out on charges and is alleged to have violated his conditions from the police or failed to show up for court.  This is also the case where the accused has previous domestic assault convictions either with the same or another alleged “victim.”

Once bail is set, unless a prosecutor consents, it is a more difficult process to have the bail conditions changed and requires an application in Superior Court.

Changing the Conditions of your Undertaking or Bail:

How quickly conditions can be changed depends on whether the prosecution consents and whether you were released from the police station or taken to court for a bail hearing. 

It is important to note that you are required to follow conditions (even ones that should have not been made) until they are changed in one of the ways listed below. If you break the conditions before they are changed, even if you are later acquitted of the main charges, you can be found guilty of Criminal Offence of breaching the terms of your release, which is a serious matter.

Prosecution Consent:

The easiest way to change conditions is with the consent of the prosecutor.  If the prosecutor consents, the change is done out of court using a form which is signed by the accused (if you are on bail and have a Surety, the Surety must also agree to the change and sign the form), the prosecutor and then endorsed by a judicial officer.  Once endorsed, the change takes effect.  The Lawyers at Berkes Law can help you approach a prosecutor and get them to agree to changing the conditions of you release.

Where the Prosecution does not consent:

Changing the conditions of an Undertaking:

If you are released from the police station, you can ask for a court hearing to review the conditions of your release.  The hearing can happen as early as the day after your release and takes place in the Ontario Court of Justice (Provincial Court).  At this hearing, it will be up to the prosecutor to justify any of the conditions of the release to a Judge or Justice of the Peace.  If they cannot justify the conditions, those conditions should be removed from your release. The Lawyers at Berkes Law can help you request and prepare for the hearing to get your conditions changed.

Changing the conditions after a Bail Hearing: 

If you went to court and had a bail hearing, you can ask for a court hearing to review your bail conditions.  Unlike the above case, there is a specific notice to the prosecution before the hearing can take place.  Additionally, before the hearing can take place, you must file a court transcript of the bail hearing, documents setting out the reasons the bail must be changed, and you will need documents signed by Sureties (known as Affidavits) setting out that they are prepared to supervise you, the conditions of your supervision, and their financial means.  At this type of hearing, it will be up to you to show why the bail conditions need to be changed (or if you have been denied bail in the first place, why you should be released).  If you can convince a Judge to change the conditions or release you, you will be given a new bail.

The lawyers at Berkes Law have extensive experience in dealing with bail conditions and obtaining changes to conditions either with the prosecutor’s consent or after a hearing. 

What evidence does the prosecution have against me?

Disclosure: 

Disclosure refers to the prosecutor’s obligation to disclose what evidence there is against you.  As mentioned earlier, the evidence may just consist of the alleged “victim’s” word in the matter.  This will usually be in the form of a video interview conducted by the police.  Additionally, the officers investigating the matter would have taken notes in long, skinny notebooks.  If the police responded to a 911 call, you are also entitled to a copy of that audio recording.  While the prosecutor is obliged to provide you with disclosure, you may not receive everything unless you make a request for certain specific pieces of evidence.  The Lawyers at Berkes Law have extensive experience in reviewing disclosure, determining what additional evidence exists in a case and how to go about asking for it.

Who do I talk with to resolve my case?

Crown Pretrial:

After Disclosure, the next step in the proceeding is an informal meeting with a prosecutor referred to sometimes as a “Crown Pretrial” or “Resolution Meeting.”  At the meeting, the following issues may be discussed:

  • Changing the conditions either Undertaking or Bail.
  • Missing Disclosure.
  • Resolving the matter for a plea of guilt or potentially a Peace Bond (see below).
  • If there will be a trial, which witnesses will the Crown call and are there any admissions the accused is willing to make

If you have a lawyer, this discussion will take place out of court between your lawyer and the Crown prosecutor, without your presence.  There may need to be multiple meetings with the prosecutor to resolve all the issues.  The Lawyers at Berkes Law have extensive experience in conducting Crown Pretrials, ensuring you get the best possible resolution or that you are in the best possible position for trial.

Judicial Pretrial: 

If the matter cannot be resolved with a Crown Pretrial, there is the opportunity to discuss the same issues with a Judge mediating the process at a Judicial Pretrial.  At the Judicial Pretrial, if you have a lawyer, this discussion will take place out of court between your lawyer and the Crown prosecutor, without your presence.  As with the Crown pretrial, the Judicial Pretrial will discuss the following conditions:

  • Changing the conditions either Undertaking or Bail.
  • Missing Disclosure.
  • Resolving the matter for a plea of guilt or potentially a Peace Bond (see below).
  • If there will be a trial, which witnesses will the Crown call and are there any admissions the accused is willing to make

The lawyers at Berkes Law have extensive experience in conducting Judicial Pretrials.  After a Judicial Pretrial, the accused will either resolve their matter or set a trial date.

Resolving my case short of trial:

Obviously the best way to resolve your case is to have the Crown prosecution withdraw the charge.  Sometimes the prosecution may ask for a Peace Bond and agree to a withdrawal once the Bond is complete.  Other times, the prosecution will insist that either an accused plead guilty or set the matter for trial. 

Resolving the Domestic Assault:

Resolving your matter can come in one of two ways, a Peace Bond or a Guilty Plea.  The difference between the two resolutions involves a public acknowledgement of the allegations describing the Domestic Assault.  In the case of a Peace Bond, there is no formal acknowledgement that the accused committed a Domestic Assault.  On the other hand, a Guilty Plea involves a public acknowledgement that the accused did commit a Domestic Assault as well as agreeing that the facts making up the Domestic Assault are true.

A note about PAR:

PAR stands for Partner Assault Response.  The PAR program is administered by the Ministry of the Attorney General for Ontario.  The Program involves a formal information session given in court by the Crown prosecutor.  After that presentation, accused who wish to enter the program will engage in an intake interview with a member of the community organization responsible for administering the program.  At the intake interview, the accused will be told what program they will take, the dates and times of the meetings as well as the consequences for failing to complete the program.  After the intake meeting, an accused will have his Undertaking or bail conditions formally changed to order them to attend and complete the PAR program. As a result, if an accused does not attend and complete the PAR program, they can be charged with the additional criminal offence of breaching their conditions.

If one of the offers of entering into the PAR program is that an accused will be allowed to have contact with the intimate partner or they can resume living together, the intimate partner may have to attend court as well

Peace Bonds: 

A Peace Bond is not a finding of guilt nor an admission of criminal activity. The mandatory conditions of the Peace Bond are to “keep the peace and be of good behaviour”, in other words, not to commit any future criminal offence, as well as reporting to court when required to do so.  There may be additional conditions such as abstaining from communicating with and staying away from the intimate partner or to only have contact with the intimate partner with their written, revocable consent.  Once an accused enters into the Peace Bond, the criminal charge is withdrawn.  If an accused follows the conditions of the Peace Bond, it will expire after one year and the conditions will be over.  If an accused violates the conditions, an accused can be charged with a further criminal offence, as well as being made to forfeit up to $500 (or whatever other sum is set).  Finally, as an accused has been presumed innocent throughout the process, the fact that the charge has been withdrawn for a Peace Bond has the same effect as a judge finding an accused not guilty after trial.

The lawyers at Berkes Law have extensive experience in negotiating withdrawals of Domestic Assault charges on behalf of their clients.  Please contact us to book a consultation meeting.

FAQ about domestic assaults and other domestic charges

My wife and I have been separated for years, why is this a domestic assault?

Domestic Assaults are defined as including former spouses, common law partners or dating partners.  It does not matter if you have a separation agreement or divorce.  If a former partner alleges threats, violence, or stalking behaviour, it will be considered a domestic assault.

The allegations are years old why are they arresting me now?

Under the Criminal Code, there is no statute of limitations on prosecution of criminal offences, meaning the police can charge you even years later.  However, in order to do so, the prosecution must proceed by way of Indictment and you get the right to a jury trial. 

In order to avoid giving someone a jury trial, the police must lay charges within 12 months of the alleged offence.  The more likely scenario is that partners will complain of activity that took place recently, but the police will add in offences alleged to have taken place outside of the preceding 12 months.  If the matters go to trial, the prosecution will have to decide if they wish to pursue the charges outside of the 12 months and give the accused a right to a jury trial.

There is no evidence.  Why did the police charge me?
Under the law, evidence does not only mean eyewitnesses, photographs of injuries, or recordings of assaults.  These pieces of evidence are called corroborating evidence. However, the only evidence the police need to charge someone (and in fact all a Court needs to convict someone) is the partner’s word that it happened.  Corroboration makes the case for the prosecution stronger, but it is not necessary to charge or convict.

The other side wants to drop the charges and they told the police. Why is this still proceeding?
While an investigation starts because a partner calls the police and tells them something happened, it is the police and the prosecution that determine if charges are laid or withdrawn.  Sometimes, though not always, the police will ask a partner if they want to “press charges” or not.  Once charges are laid, the matter is out the partner’s hands.  The Crown Policy Manual (the rules that the prosecutors in Ontario must follow) states:
“The Prosecutor must not withdraw charges solely based on the victim’s request. The Prosecutor must consider all the circumstances. These victims may be reluctant to continue a prosecution and be under considerable pressure to seek the withdrawal of the charges.”

That does not mean that a partner’s input is always disregarded, just that it must be presented in a way that the prosecutor will listen and act upon it. 

Why should my spouse hire a lawyer?
As mentioned above, “The Prosecutor must not withdraw charges solely based on the victim’s request.”  However, that does not mean that your partner’s desire to drop the charges will be unhelpful.  The way in which the message is delivered to the prosecution, will affect how much weight they will give to your partner’s wishes.  When a partner is represented by a lawyer, it can help the prosecutor understand that the partner’s wishes to drop the charges are theirs alone, and the accused is not putting pressure on them.

I have been offered Diversion what is that?
Diversion, sometimes referred to as “alternative measures”, refers to a specific program that allows for cases to be resolved without any type of criminal sanction.  The program generally requires an accused to do the following:

  • Formally admit that they engaged in the activity that forms the subject matter of the charge; and
  • Complete some counselling, community service or other formal program.

Once proof of completion of the program is provided, the charge(s) are withdrawn by the Crown.  Any admission made for the purpose of a formal diversion program cannot be used as an admission in any criminal or civil proceeding.

You should be aware that if you have to “plead guilty”, it is not diversion.  Similarly, if you must acknowledge in open court that you committed the acts it is not diversion.

Can I go to jail for Domestic Assault?
If prosecuted by summary conviction, the offence of assault draws a penalty of a $5,000 fine and/or up to two years in jail.