What are the Consequences of a First-Time Domestic Assault Charge in Ontario?

The consequences of a domestic assault charge in Ontario can be even more severe than a simple assault charge. The fact that the alleged assault was perpetrated against a member of the same household elevates the crime in the eyes of the prosecution and judges.

So, as soon as allegations of domestic assault are made, law enforcement will investigate and if criminal charges follow, seeking legal representation should be a priority.

As a first offender, the chances of escaping the most severe penalties may be increased—and with experienced legal assistance, it is more likely and the charges can even be dismissed.

In the Canadian Criminal Code, the offence of assault is dealt with comprehensively but there is no separate offence of “domestic assault.”

Depending on the nature of the incident, violence committed in a family setting can lead to charges under one of the following provisions contained in the Code:

• Assault
• Sexual assault
• Assault with a weapon
• Assault causing bodily harm
• Making indecent and harassing phone calls
• Kidnapping and forcible confinement

For an offence to be considered “domestic,” it must be committed against someone with whom the defendant is in an intimate relationship. Often, this is a current or ex-spouse, a common-law partner, or a dating partner. However, abuse committed by parents/legal guardians against children or involving any other household member can be considered domestic assault.

In the majority of cases, the abuse is physical but according to the legal definition of assault, the abuse could be psychological, emotional, or even financial.

According to the assault laws in Canada, many domestic assaults are hybrid offences that can be treated as summary or indictable offences.

Any offence that falls under the “simple assault” definition in the Criminal Code is a hybrid offence. However, many more serious assaults are indictable offences that prosecutors are rarely disposed to offer much leniency with if it involves domestic abuse or violence. The penalties if convicted of an indictable offence are considerably harsher.

If it is a first offence, this will be considered but the decision on whether to charge the offence summarily or as an indictment ultimately rests with the prosecutor.

Domestic assault charges are usually less likely to be dropped by prosecutors than simple assault charges.

It is difficult to generalize about the penalties associated with domestic assault, but the following are some guidelines based on the relevant laws and case history:

• Technically, even for a relatively minor domestic assault offence like making indecent and harassing phone calls, a summary conviction can lead to two years less a day in provincial jail—but with good legal representation, no jail time may apply.
• Indictable domestic assault offences are punishable by up to five years in federal prison.
• Sexual assault offences or assaults causing bodily harm can lead to up to 10 years in federal prison.
• Aggravated assault or if a child under 16 is sexually assaulted is punishable by up to 14 years in federal prison.
• Kidnapping and forcible confinement is an indictable offence that can result in up to life imprisonment (mandatory minimum sentence of four years if a firearm is used).

The penalties vary depending on the seriousness of the assault and the criminal history of the defendant. First-time offenders can expect lighter penalties than the maximums stated, in most cases.

The maximum penalties outlined above are very harsh but as a first-time offender with legal representation, you should be able to avoid the worst-case scenarios—and you are far less likely to spend time in jail than a repeat offender.

Many factors are considered by a judge when sentencing for domestic assault convictions. The safety of the family is paramount, and measures must be taken to prevent future assaults but the needs of the family and the rights of parents to spend time with the children must also be factored in.

For minor domestic assault convictions that involve little or no physical violence, jail time is unlikely in Ontario. Sometimes, a criminal record can even be prevented.

Alternative measures to jail available to judges in cases where no mandatory minimum sentence applies include:

• Absolute or conditional discharge: this means no criminal record if you successfully complete a period of probation for a conditional discharge.
• Fines instead of jail time: even a summary conviction can result in a fine of up to $5,000 but, for most people, that’s better than jail time.
• Suspended sentence: the offender is released on probation for a period and, if conditions are met, no jail time is served.
• House arrest/conditional sentence: house arrest instead of jail usually means the defendant is free to work but strict conditions may apply to maintain family safety.

If you have been charged with domestic assault, it is important to remain calm and not do anything rash. Otherwise, your next moves could be interpreted in a way you do not intend them. Try not to get too emotional.

Do not say too much to law enforcement but cooperate with their requests. Even if you feel you have been unfairly treated, do not try to clear your name. That can be done later. Answer police questions politely to identify yourself and provide personal details.

As soon as you are informed of your arrest or detention and right to counsel, tell the police that you wish to speak to counsel as soon as possible and do not answer any further questions. The police have a legal duty to inform you of your right to counsel—but you must request a lawyer before they will grant it. Your lawyer will then guide you through the process, protect your rights, and advocate on your behalf.

If after the first hearing, the judge sets conditions on your release (such as a no-contact order), follow these conditions to the letter.

Then, work with your lawyer to gather evidence as you build your defence. This might include gathering communication records, testimonies, surveillance footage, etc.

For legal advice about a domestic assault charge, speak to one of our criminal defence lawyers in Ottawa during a free consultation.