Domestic assault Lawyers in Canada

The Crown is the prosecutor. Section 11(d) of the Canadian Charter of Rights and Freedoms gives a person charged with an offence the right to be presumed innocent until proven guilty, so the Crown is the side that has to prove the charge.

Section 265(1) defines assault. A person commits an assault when, without the consent of another person, they apply force intentionally to that other person, directly or indirectly. The section also covers an attempt or a threat, by an act or a gesture, to apply force to another person, if the person has present ability to carry it out.

Consent is part of the definition. Section 265(3) says that no consent is obtained where the complainant submits or does not resist by reason of the application of force, threats or fear of the application of force, fraud, or the exercise of authority.

Section 266 sets the penalty for assault and says nothing about the relationship between the two people. The relationship matters in other rules, described below.

Section 266 makes assault an offence that can proceed on indictment, with a maximum of five years in prison, or as an offence punishable on summary conviction. For a summary conviction offence, section 787(1) sets the general penalty unless the law provides otherwise: a fine of not more than $5,000, or imprisonment of not more than two years less a day, or both.

Section 267 covers an assault in which the person carries, uses or threatens to use a weapon or an imitation of one, causes bodily harm to the complainant, or chokes, suffocates or strangles the complainant. It carries a maximum of 10 years on indictment, or it can proceed as a summary conviction offence.

A maximum is the ceiling the law allows. It does not say what a court would order in any case.

Sentencing has a rule that refers to the relationship. Under section 718.2, a court that imposes a sentence takes into consideration the principles the section lists, and evidence that the offender, in committing the offence, abused the offender's intimate partner or a member of the victim's or the offender's family shall be deemed to be an aggravating circumstance.

Weapons prohibitions follow some convictions. Section 109 requires an order prohibiting possession of firearms, weapons and ammunition on conviction of an indictable offence in which violence was used, threatened or attempted against the person's intimate partner, a child or parent of the person or of the partner, or someone who resides with them. Section 110 covers other offences in which violence against a person was used, threatened or attempted. There the court shall consider whether an order is desirable in the interests of the safety of any person.

The words of section 265 show where a case can turn: whether force was applied intentionally, and whether it was applied without the consent of the other person. Whether a particular defence applies is a question for the court on the evidence, and a lawyer can explain it.

Self-defence is in section 34. It applies where a person believes on reasonable grounds that force is being used against them or another person, or that a threat of force is being made, the act is committed for the purpose of defending or protecting themselves or the other person, and the act is reasonable in the circumstances. The court shall consider the relevant circumstances, including factors such as the nature of the force or threat, the person's role in the incident, and the nature, duration and history of any relationship between the parties, including any prior use or threat of force.

Charter rights also apply. Section 8 gives everyone the right to be secure against unreasonable search or seizure. Section 10 gives everyone on arrest or detention the right to be informed promptly of the reasons and the right to retain and instruct counsel without delay and to be informed of that right. Under section 24(1), anyone whose Charter rights were infringed may apply to a court for a remedy, and under section 24(2), evidence obtained in a manner that infringed Charter rights is excluded if admitting it would bring the administration of justice into disrepute.

A peace bond under section 810 is a separate process. A person who fears on reasonable grounds that another person will cause personal injury to them or to their intimate partner or child, or will damage their property, may lay an information before a justice. If the justice or court is satisfied that the fear has reasonable grounds, it may order the defendant to enter into a recognizance to keep the peace and be of good behaviour for not more than 12 months.

In Ontario, every charge under the Criminal Code starts in the Ontario Court of Justice, and about 95% of charges are completed there.

A person who is arrested may be taken before a justice for a release decision. Under section 515, the justice shall make a release order without conditions unless the prosecutor shows cause why detention in custody is justified or why another order under that section should be made. Section 493.1 says that release at the earliest reasonable opportunity, on the least onerous conditions that are appropriate, is the primary consideration. Section 11(e) of the Charter protects the right not to be denied reasonable bail without just cause.

Section 515 has rules that refer to an intimate partner. In making an order, the justice shall consider any relevant factors, including whether the accused is charged with an offence in which violence was used, threatened or attempted against their intimate partner. The justice may direct conditions, including that the accused abstain from communicating with a victim, witness or other person named in the order, and abstain from going to a place or geographic area the order names. Section 515 also reverses the usual approach for an accused charged with an offence in which violence was allegedly used against an intimate partner and who has a previous conviction or discharge for such violence, or was subject to a recognizance under section 810 when the offence is alleged to have been committed. That accused must show cause why detention is not justified.

An appeal from a summary conviction goes, in Ontario, to the Superior Court of Justice sitting in the region, district or county where the case was decided. After a conviction on indictment, an appeal goes to the court of appeal, as of right on a question of law alone and with leave on other grounds or against sentence.

Legal Aid Ontario may pay for a lawyer if the person qualifies and is charged with a crime that could mean jail on conviction, or is 12 to 17 and charged under the Youth Criminal Justice Act. Duty counsel is a lawyer at the courthouse for that day. Duty counsel can advise on rights, ask to delay a court date, act at a bail hearing, help with a guilty plea, speak at sentencing, and meet the Crown, for people who qualify and have no lawyer.

A legal aid certificate pays a roster lawyer, one approved to take legal aid clients, for the length of the criminal case. Applications are online or by phone at 1-800-668-8258.

The Law Society of Ontario keeps a public Lawyer and Paralegal Directory, where a lawyer's licence can be looked up. The Ontario lawyers on this site are listed by city. Nothing on this page ranks or recommends any of them.