Crimes of Violence & Domestic Assault
What are Crimes of Violence?
Crimes of violence occur where unwanted physical force is threatened or actually inflicted on another person. In Canada, this is commonly referred to as ‘Assault’, and can stem from very minor allegations like a “shot in the arm” to more serious cases involving bodily harm.
The Assault provisions set out in the Criminal Code of Canada contemplate an array of potential charges. These charges have a sliding scale of potential sentences depending on the circumstances and severity of the allegations:
Assault Causing Bodily Harm
This is an assault on another person resulting in bodily harm that is neither ‘trifling or transitory.” This means that the bodily harm caused does not need to be overly serious to make out the charge.
Assault with a Weapon
This mean utilizing a weapon in the course of assaulting someone. The weapon can be an actual weapon (like a knife or a gun) or any object not actually designed to be a weapon but used as one (like a broom or a hockey stick). You don’t actually have to injure the other person to make out the charge. Simply brandishing the weapon in the course of the assault is sufficient to secure a conviction.
A serious assault resulting in serious injuries. The terms set out in the Criminal Code are: wounding, maiming, disfiguring or jeopardizing someone’s life. A stab wound, brain damage, loss of eyesight or hearing, and internal injuries are examples. House arrest is not available for aggravated assault.
Assault on a Police Officer / Resist Arrest
The Criminal Code considers it a special offence to assault a “peace officer” in the execution of his or her duties. This offence most commonly occurs where there is a struggle during the arrest process, and depending on the severity of the allegation, especially if a weapon is used during the course of the assault, a lengthy term of incarceration will likely be sought upon conviction.
Threats to Cause Death or Bodily Harm
It is an offence to knowingly utter or convey a threat to cause death or bodily harm to any person. It is also an offence to threaten to burn, destroy or damage property or threaten to kill, poison or injure an animal that belongs to a person.
Domestic Assaults are assaults against people you are in a relationship with or have a familial connection to. This most often includes current and former partners and family members. If you are charged with a Domestic Assault, the punishment can be more severe than in a normal assault. This is because domestic situations can involve relationships of trust (i.e. parent & child) and because Courts want to deter people from offending again.
Although many cases stem from ‘the heat of the moment’ and are otherwise isolated incidents, it is important to remember that in ALL cases, the Crown Prosecutor decides whether or not to proceed against you. In the Canadian legal system, it is NOT up to the complainant to decide whether the case proceeds. The Crown may still choose to prosecute a case even if the complainant doesn’t want them to.
When deciding whether to proceed against you, the Prosecutor will ask two fundamental questions:
- Is there is a reasonable likelihood of conviction?
- Is it in the public interest to proceed?
When answering those questions, the Prosecutor will consider the following criteria:
- The strength of the case against you
- The history of violence (if any) between the parties and criminal record
- The extent of the injuries sustained (if any)
- The seriousness of the allegation(s)
When considering the seriousness of the allegations, special provisions are set out in the Criminal Code and articulated in the case law to address instances of choking, spitting, and/or visible injuries. In these cases, the Prosecution will consider the allegations more serious.
Domestic cases can be difficult to navigate. It is critical that you obtain the services of a lawyer with the necessary experience and expertise to identify the weaknesses in the prosecution’s case. The right lawyer will be well equipped to advocate effectively on your behalf and fight the charges against you.
Potential Consequences and Resolutions for Assault
The consequences for offences of violence range from out of court diversion programs resulting in no criminal record, to fines, probationary terms, and imprisonment. Certain offences (if committed while using a firearm) carry minimum sentences of jail.
Do I have a Defence?
Going to trial means that the Crown must prove the allegations against you beyond a reasonable doubt. Our lawyers have the experience and expertise to challenge your charge in a number of different ways if your charge proceeds to trial. Effective trial advocacy will almost always establish a defence. These cases most often come down to a “he-said/she-said” test of credibility, where the Crown must rely on the testimony of the complainant to prove the case. This means that your lawyer must have the ability to vigorously defend you through strong and effective cross-examination techniques that will expose the frailties in the Crown’s case, and call into question the credibility and reliability of the complainant(s) or other independent witnesses who are pointing the finger at you. Quite often, these witnesses have ulterior motives (especially in cases where there are other proceedings such as civil lawsuits, family court proceedings, child custody disputes and divorce proceedings).
How can we help?
Through years of combined experience, our lawyers are keenly familiar with every possible scenario that you may confront, and we will zealously defend you by exposing the deficiencies in the Crown’s case. If your case proceeds to trial, we will use unrelenting cross-examination coupled with legal arguments tailored to the facts of your case to give you the best possible defence. Your defence may involve making applications to exclude evidence gathered against you in violation of the Canadian Charter of Rights and Freedoms, and it takes a devoted and experienced lawyer to identify all issues.
Our lawyers understand that it can be difficult to fight the temptation to tell the police your side of the story, but all too often, the Crown will use any statement or incriminating evidence against you. We can identify all of the legal arguments in your case and expose the truth through picking apart the complainant’s story, or the manner in which the police carried out the investigation.
A conviction for a crime of violence can have devastating consequences. Not only do you face a possible jail sentence, but there can also be long term ramifications, including possible restrictions on your ability travel, your immigration status, and the imposition of strict court orders that can be invasive and impede your liberty.
You are entitled to full answer and defence, and it is imperative to leave no stone unturned. Our lawyers will advance the best arguments that can be made on your behalf and will fight tirelessly to make sure that your rights are upheld against the vast resources and superiority of the State that is attempting to convict you.
R. v. A.M.D.
The trial proceeded against A.M.D. on charges of domestic assault with a weapon, uttering threats and mischief. The Crown alleged that the client, while in a severe state of intoxication, had stabbed the complainant with a screwdriver and caused significant damage to the property. During cross-examination, Mr. Patmore was able to highlight significant inconsistencies in the complainant’s version of events and impeach him on his prior statements. A.M.D. was acquitted of all charges.
R. v. S.R.
Mr. Patmore ran a contested Bail Hearing in a case where the client was accused of robbing a financial institution, mischief over $5,000, numerous thefts and fraud. Despite the client having a number of outstanding warrants, Mr. Patmore was successful in obtaining his release.
R. v. F. M.
The client was charged with domestic assault and uttering threats. After lengthy discussions with the Crown Mr. Patmore was able to persuade them to drop the charges.
R. v. S.A.K.
The client was charged with assault with a weapon, dangerous driving and theft. After lengthy discussions with the Crown, and the fact that there were many issues regarding potential conviction, the Crown withdrew the more serious counts against the client. In a contested sentencing hearing, Mr. Patmore convinced the Judge to grant a Conditional Discharge, whereby, the client would not have a criminal record after a short period of Probation.
R. v. C.D.E
D.V.P. was charged with numerous offences (including domestic assault, unlawful confinement, various weapons offences, impaired driving, and several breaches of court orders). Mr. Patmore ran a contested bail hearing (in a reverse onus situation) and successfully obtained D.V.P.’s release. Mr. Patmore was then successful in resolving the matter by negotiating to have the most serious charges withdrawn.