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Domestic Violence vs Assault

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While the injuries may be the same, the law views domestic violence and assault differently. An assault on someone with whom you have an established and intimate relationship is treated differently than an assault on a stranger. When individuals trust one another and are connected by some form of relationship, the law defines assaults between them as domestic violence and considers them to be more aggravated or egregious with potentially greater penalties. The following will help you understand how assault charges differ from domestic violence and domestic assault charges in Ontario. 

Assault

Assault is defined in the Criminal Code in the following two ways:

  • When a person intentionally applies force to another person without their consent, either directly or indirectly 
  • When a person attempts to apply force or threatens to apply force to another person, which causes that person to truly believe that they will carry out that force against them. 

The Criminal Code also sets out more serious forms of assault charges such as assault causing bodily harm, assault with a weapon and aggravated assault.   If you are faced with a simple assault charge under s. 266 of the Criminal Code, the penalty could be up to five years in prison. Assault causing bodily harm or assault with a weapon under s. 267 carry a maximum jail term of ten years.   The maximum jail term for aggravated assault under s. 268 is fourteen years.

Domestic Violence

The legal definition of domestic violence includes any assault between people in an intimate relationship. This could include anyone that lives in the same household, such as a husband and wife, common-law partners, parents and children, children and legal guardians or a romantically involved couple. Domestic violence is any type of harmful, destructive, or physically or mentally abusive behavior that is intended to control or harm an intimate partner or family member. 

Domestic Violence Charges

Domestic violence and domestic assault are charges against anyone who has exhibited behaviour used to exert control over someone in his or her household, such as the kind of behaviour in abusive relationships. Types of domestic violence can include assault, battery, coercion, sexual abuse, criminal harassment, stalking, uttering threats, theft or mischief to property. Oftentimes, domestic violence victims fear retaliation and do not speak out against their abusers for fear of additional violence or pain.

The Criminal Code does not officially classify domestic violence or domestic assault with their own specific crime.  The accused will typically be charged with simple assault or one of the more serious forms of assault described above.   Therefore, the charge can be simple assault, assault with a weapon, assault causing bodily harm or aggravated assault depending upon whether a weapon was used and the severity of the victim’s injuries.   The information before the court will not specifically state that the charge involves domestic violence. However, the crown attorney will clearly ‘red flag’ their file as a domestic assault/violence file and the court will be made aware of same as well.

Domestic Violence Charges

If a defendant is found guilty of a simple domestic assault charge in Ontario with minor injuries, in theory they could face a jail term of up to 5 years. However, it would be very rare to receive a maximum jail term unless the person was a serial violent offender with an extensive past prior criminal record for domestic violence.

Assuming a domestic violence charge is not defendable and the accused is  first time offender, in most cases where the complainant sustained no injuries, a good criminal lawyer will be able to negotiate with the crown attorney to avoid a jail term.  For minor domestic assault charges where it is in the accused’s best interests and not contrary to the public interest, it may be possible for an accused to avoid a criminal record by negotiating with the crown to agree to a conditional discharge.   A prosecutor, in his or her own discretion, could offer the opportunity for a defendant to participate in a domestic violence program, which may reduce the sentence or result in a conditional discharge (i.e. no criminal record).

Even if the crown is not willing to take a lenient position on sentencing, a skilled criminal lawyer can often convince a judge that a criminal record should not be imposed upon the accused during a sentencing hearing.

Additionally, for charges which are laid by the police, a victim of domestic violence is never the one to bring the charges. In this circumstance the police alone determine if a domestic violence charge will be laid. It should also be noted that if the police refuse to lay a domestic violence charge (i.e. where they do not have reasonable and probable grounds to lay a charge), a victim can attempt to lay a privately laid information in front of a justice of the peace.

Domestic violence charges are often laid by the police even when the alleged victim does not want the matter to proceed.    If the police determine that there are reasonable and probable grounds to lay a domestic violence charge, they will always proceed to arrest the accused and lay the charge no matter what the victim’s wishes are.   

Once the charges are laid, the crown attorney then determines whether the charges will continue, or if charges will be dropped.  Once a case of domestic violence is charged, a victim cannot withdraw the charge. Crown attorneys have very clear and long standing  policies and directives in Ontario that domestic violence prosecutions will continue to trial or resolution despite the complainant’s wishes for the charge to be withdrawn.  

The test the crown applies in Ontario regarding whether any criminal charge, including domestic violence charges should be prosecuted, is ‘whether there is any reasonable prospect of conviction.’   In rare circumstances where the crown determines an individual case does not meet this low level screening test, the crown might offer that the accused can enter into a s. 810 Criminal Code peace bond and withdraw the charges.    However, in many cases the crown will continue to prosecute a matter even though there is little chance of obtaining a conviction.  Unfortunately, it is sometimes politically more expedient for the crown to take a weak case to trial and lose than to make a hard decision which could potentially prompt a complaint or anger from an alleged victim of domestic violence.

Difference Between Simple Assault and Domestic Violence

As previously indicated, the difference between a simple assault charge and a domestic violence charge is whether the person had an intimate or familial relationship with the victim. A competent criminal lawyer who has experience defending domestic violence charges will understand the additional complications that come with a domestic violence charge, including the impact on child custody arrangements, family law and division of property. 

Domestic violence crimes are treated and punished by law more severely due to the fact that the physical or emotional abuse or injuries are inflicted upon those who are in an intimate or familial relationship. The damage caused by domestic violence is far more damaging than the types of injuries that are caused by a non-domestic assault and can include far-reaching emotional and physical consequences. 

Steps to Take if You Are Facing a Domestic Violence Charge

If you are facing a charge of domestic violence, you may be overwhelmed, terrified and unsure of how to proceed. While every domestic violence case is different, and handled on a case-by-case basis, once a victim files a complaint, it becomes a legal matter solely under the authority of the Crown.  A victim is not allowed to retract a charge after the initial complaint is filed, and the case is before the courts. If you have been charged with domestic violence, consider the following steps: 

  • First, always make sure to follow the bail terms given to you by the police or justice of the peace (i.e. the terms of your release such as not to communicate or associate with the alleged victim).   Any violation of these terms will result in a charge of breaching your undertaking or recognizance and could result in an additional jail term.  
  • Next, remember that any ability to withdraw a domestic violence charge before it goes to trial will rest with the Crown. Any attempt to harass the victim at this point to drop the charges will be futile and will lead to additional charges:  Once the charge has been laid by the police the victim has lost all control and authority with respect to whether the case proceeds in court.  Your opportunity to have your domestic violence charge withdrawn can be handled by a domestic assault lawyer, who can make an appeal to the Crown  assuming the case against you is very weak.  
  • Contact a domestic assault criminal lawyer as soon as possible. You will want to ensure that you are contacting a domestic assault lawyer who focuses on this exact area of law, and has a history of successfully defending people at trial who have been charged with this exact crime.   Upon your arrest or before you turn yourself into the police to be arrested, make sure you contact a domestic assault lawyer who can help you understand your rights and build your case.  

Contact an Experienced Domestic Assault Lawyer Today

If you have been arrested and charged with domestic violence or domestic assault, contact an experienced domestic assault lawyer today at Kruse Law at +1-800-699-0806 or online today for your free consultation.

Posted under Domestic Assault

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