Understanding Assault
The act of applying force or threatening to apply force on another person is called assault. It is regarded as a crime under section 265 of the Criminal Code (CC). An assault may not always involve the actual application of force but the intent of using force can also fall under this category. Even if a person doesn’t actually apply force, it is still regarded as an assault if (1) the subject has the ability to execute the threat, or (2) the subject has caused the complainant to believe that they have the ability to execute such threat or possible harm.
Neither physical contact between the subject and the object nor the sustenance of physical harm or injury are necessary conditions for an assault to take place.
The Canada CC recognizes several different types of assault, including assault causing bodily harm, assault with a weapon, aggravated assault and sexual assault.
What is Domestic Assault?
Assault takes the form of domestic assault if it relates to violence between current and/or former spouses, common-law partners and dating partners. In other words, if a person in an intimate relationship is abused by their partner or spouse, whether current or former, this is regarded as domestic assault.
Additionally, domestic assault can also take place between parents and children or between legal guardians and children.
Domestic assault can be financial, physical or psychological in nature.
Domestic assault is not recognized as a distinct offence under Canada’s Criminal Code
Canada CC doesn’t have separate or distinct provisions for domestic assault cases. Rather, most acts that fall in the purview of domestic violence are charged under various sections pertaining to assault in the Criminal Code.
I’ve been reported for perpetrating domestic assault; What am I Looking at?
If you or someone you know has been reported as a perpetrator of domestic violence, this is not good news. If the charges against you are proven and you are prosecuted by indictment, you could even be looking at jail time.
Depending on the exact nature of crimes reported against you, you may be charged with assault (s. 265), assault causing bodily harm and/or assault with a weapon (s. 267), kidnapping and forcible confinement (s. 279), sexual assault (s. 271), criminal harassment (s. 264), uttering threats (s. 264.1), making indecent and harassing phone calls (s. 371), etc.
Punishments for domestic assault
Besides sentencing, other punishments include a probation term (does not involve jail term, but requires you to comply with conditions), a conditional term (involving jail term served in the community, like house arrest), monetary fine (though unlikely), and/or restitution (amount to be paid to the victim of abuse to compensate for the harm caused.
What if you’re arrested by the police?
If the police have arrested you following the charges of domestic assault, you are not free to leave. However, that does not mean you have to tell the police anything.
You should always remain calm and polite in the presence of law enforcement officers. Do not attempt to resist being arrested as this will only make things worse. Obey the police’s instructions. Now isn’t the time to argue with your spouse either.
Anything you say to the law enforcement officers can and will be used as evidence against you. You should never lie to police officers either because in that case, you may be charged with obstruction of justice, public mischief or obstructing a police officer.
Upon arrest, you have the right to an attorney. The police are legally bound to provide you with the facility to call your lawyer.
Who determines if you will be arrested or not?
The authority to determine if a perpetrator of domestic violence ought to be arrested rests with the police. They may choose not to arrest anyone, arrest the perpetrator, or even charge both partners (though rarely).
If the police decide to charge the perpetrator, the victim cannot get the charges dropped even if they reported the violence. The authority to determine if the charges will go to trial rests with the police and the Crown Attorney.
What happens after the arrest?
Upon arrest, you may be required by the police to spend the night locked up behind bars. You will likely be released the following day unless you have a criminal history. You will then be assigned a court date for your case.
You may be served with a no-contact order and required to move out of the house you share with your spouse. You are also prohibited from contacting your partner. You may also be stopped from contacting the children if they have been subjected to the abuse. Make sure that the no-contact order is not breached.
Depending on the nature of the abuse, you will either get the charges withdrawn by entering into a peace bond or you will have to plead guilty. In the latter case, you may be able to avoid a criminal conviction.
Contact a Professional Criminal Defence Lawyer in Alberta for Assistance
If you or someone you know is charged with perpetrating domestic violence, then you should take it seriously and get in touch with Slaferek Callihoo Law in Edmonton immediately. We may be able to divert the charge of domestic abuse by getting you to attend private or court-approved counselling. In this case, you may be able to return back to your home in as early as a few weeks if your spouse consents.
