Criminal Code Offences
Domestic Assault
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Domestic assault is not a separate offence under the Criminal Code. The underlying charge is assault under section 265 or 266. What makes a case "domestic" is the relationship between the parties. In Ontario, police are required to lay a charge whenever there are reasonable grounds to believe an assault has occurred between current or former intimate partners. A visible injury is not required for charges.
The mandatory charging policy means that the decision to proceed is taken out of the complainant's hands. It is the Crown, not the complainant, who decides whether the matter should be prosecuted.
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A domestic assault charge typically results in immediate bail conditions that may prohibit you from returning home, contacting your partner and children, and attending anywhere you know the complainant to be. These conditions are imposed before any finding of guilt and can last for months while the case moves through the courts.
Changing these conditions is possible with an application to the Crown office or court. A lawyer can assist you in varying bail conditions.
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The Crown must prove the same elements as any assault charge:
you applied force to the complainant without consent, or threatened to do so;
the contact was intentional; and
the complainant did not consent.
In domestic cases, the Crown's evidence typically consists of the complainant's statement to police, photographs of injuries, 911 call recordings, and witness statements from neighbours or other family members.
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Domestic assault cases present unique challenges and opportunities. Common defences include:
Self-defence: you were protecting yourself from the complainant's aggression;
Fabrication: the complainant has made a false allegation;
Inconsistent evidence: the complainant's account has changed or is inconsistent with other evidence;
Reasonable doubt: the Crown cannot prove the assault beyond a reasonable doubt;
Consent: in limited circumstances; and
Charter violations.
Recanting witnesses: when the complainant tells police or the Crown they no longer wish to proceed, it does not end the prosecution. The Crown can and frequently does proceed without the complainant's active cooperation. A lawyer can advise you on how a recanting complainant affects your case.
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Domestic assault carries the same penalties as other assault charges:
On summary conviction: maximum two years less a day; or
By indictment: maximum five years.
Courts treat domestic violence seriously and are required to consider the domestic context as an aggravating factor at sentencing.
FAQs
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Not necessarily. The Crown will assess the strength of the evidence independently of the complainant's wishes. If there is sufficient evidence to proceed, including the complainant's original statement, photos, 911 recordings, and other evidence, the Crown can and often does continue the prosecution. However, a complainant who does not cooperate can make the Crown's case more difficult to prove.
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You will not be permitted to return to any home which was shared with the complainant. Bail conditions in domestic cases routinely prohibit the accused from going anywhere the complainant is known or expected to be, even if the home is solely in the accused's name. A lawyer can bring a bail variation application to seek changes to these conditions as quickly as possible.
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Violating a no-contact condition is a criminal offence. A new charge of failing to comply will be laid and can result in your bail being revoked. This means waiting in custody for trial unless you can secure a new release. You must comply strictly with all bail conditions regardless of whether your partner initiates the contact.
Why Hire Eliany Advocates to Defend Domestic Assault Charges in Hamilton?
We combine years of experience in criminal law with a client-centered approach. We appear regularly before the Ontario Court of Justice and Superior Court of Justice in Hamilton, Burlington, and across the region. When you work with us, you benefit from the following advantages:
Proven Track Record in Criminal Defence: Geneviève Eliany has been defending criminal cases since 2013. With years of experience handling high-stakes trials, she knows how to develop a strong defence strategy.
Charter Rights Experience: We vigorously defend your rights under the Canadian Charter of Rights and Freedoms. Whether your case involves an unreasonable search, unlawful detention, racial profiling, excessive force, or other Charter violations, we will craft a strategy to make sure your rights are protected.
Thorough Approach to Case Building: We don’t just rely on the police’s version of events. We will listen to your account and investigate all angles of the case so we can tell your story at trial. This thorough preparation makes it easier to challenge the prosecution’s narrative. It’s extremely important that you tell us about potential witnesses or surveillance, and that you keep in touch with us if there are any developments you think are relevant while you wait for trial.