A domestic assault is as an assault that takes place between “intimate partners” who are either current or former spouses, common-law partners or dating partners.
Where an assault takes place between two people who share one of these relationships mentioned above, the mater is labeled “domestic” and prosecuted quite differently by Crown counsel than other types of assault charges.
Although the Criminal Code doesn’t contain a distinct “domestic assault charge”, in many jurisdictions, domestic assault cases are separately identified and prosecuted by a special team of prosecutors who almost exclusively deal with these types of allegations.
Recent Criminal Code changes deemed violence in a domestic context as a risk factor at the bail hearing stage and an aggravating factors at sentencing.
For example, In the bail context, a justice is now required to consider whether someone is charged with an offence where actual, attempted, or threatened violence was used against an intimate partner.
At the sentencing stage, the court must now consider violence against an intimate partner, or the family member of the victim or offender, as an aggravating factor on sentencing. Judges may also now exceed the maximum sentence imposed on an offender for some intimate partner offences.
Internal police policies dictate that in almost all situations, the police are to charge a person alleged to have assaulted another in a domestic context, regardless of whether or not independent proof of the crime exists such as visible injuries or independent witnesses to the offence. A person’s word in the absence of ANY other evidence is enough to bring someone into the criminal justice system on an assault charge.
What if the person making the complaint does not wish the charge to proceed to court or to trial?
At the presecutorial stage, the Crown attorney will usually move forward with a prosecution in cases where there is a “reasonable prospect of conviction”. It is of little importance to the prosecutor that the person making the complaint no longer wishes the matter to proceed to trial.
In domestic situations, a complainant does not have the choice to “press charges” or not. If a complaint of domestic violence is made, the police will arrest and charge the person accused of the offence and the Crown will likely prosecute them regardless of the complainant’s wishes to halt the prosecution. However, in some unique circumstances, it is possible for a complainant to influence a prosecutor’s decision to withdraw a criminal charge.
What if I am trying to get a divorce and am charged with domestic assault?
Allegations of domestic assault commonly arise in the context of divorce proceedings or separations. Special considerations need to be taken into account when defending a domestic assault allegation when family law proceedings are occurring at the same time. Unfortunately, some family law litigants make false allegations of assault as a way to gain the upper hand in custody and divorce cases. Usually a person making the claim of assault will be permitted to have exclusive access to the home and full custody of the children until the assault matter is resolved in court. Many family law litigants are aware of this and use the police to assist them with their family law claims.