What Are The Defences To A Domestic Assault Charge In Canada?

April 8, 2021

What Are The Defences To A Domestic Assault Charge In Canada?

When it comes to domestic violence, a domestic assault offence is one of the most commonly defended crimes by criminal defence lawyers in Canada. There’s no specific provision in the Canadian Criminal Code regarding family-related criminal offences. However, a domestic offence charge is considered an aggravating factor in sentencing, as per Section 718.2 of the Criminal Code.

Domestic Assault Charge Penalties

The exact penalty you can receive for committing a domestic assault crime will largely depend on your offence’s unique circumstances. It can vary from signing a peace bond to receiving jail time for a specific time, depending on the assault-type and the Crown’s decision to go with either a summary or indictment conviction.

In case of an indictment, you could face up to 10 years in prison, while in a summary conviction, you could face up to 18 months in jail. For an aggravated assault charge, you could face up to 14 years of jail time. You could also receive ancillary orders, such as a firearm prohibition or a DNA order, in the case of an assault with a weapon charge.

Common Defences To A Domestic Assault Charge

Some of the best defences to a domestic assault charge can include:

Challenging The Complainant’s Credibility

While the best defence to an assault charge will largely depend on your case’s unique circumstances, your legal team can undermine the witnesses’ credibility through a rigorous examination of the available evidence. Domestic abuse or divorce-related allegations are exaggerated or fabricated due to certain emotional factors, including jealousy, anger, or bitterness.

A cr

edible criminal divorce attorney can dismantle the case against you by carefully examining the available evidence, like phone records, witness testimony, and more.

Making A Self-Defence Argument

Self-defence is one of the most common defences to any assault charge type. However, to successfully argue self-defence in the court of law, you will have to fulfil specific criteria as stipulated in the Canadian Criminal Code. In order to make a successful self-defence argument, your lawyer will have to demonstrate in court that:

  • The complainant used force against you, or you had reasonable grounds to believe that the complainant would use some kind of force against you
  • You only responded to the threat as a means of defending or protecting yourself from the threat of force
  • Under the circumstances, your response to the threat was reasonable. You can argue that any rational individual would have reacted to the situation under discussion in the very same way as you did

When considering your actions’ fairness under the circumstances, the court might consider several critical factors, including:

  • History or relationship between you and the complainant,
  • Whether you were under the influence of drugs during the offence,
  • Your physical size relative to the complainant’s size;
  • And whether the force used by you was proportionate to the force applied by the complainant

Using A Charter Application Argument

A Charter Application is a legal motion through which your attorney could also argue to exclude any incriminating evidence presented during the trial. This can include arguing against how the evidence was collected against you, for instance, the police violating your charter rights during a criminal investigation.

About Slaferek Callihoo

Slaferek Callihoo is a criminal defence law firm that helps its clients defend various criminal cases, including domestic assault charges in Edmonton and its surrounding areas. Visit our website to learn more about our legal services or contact us for legal consultation.

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