What are the Consequences for a First-Time Domestic Assault Offender?
Any violent crime is treated harshly by Ontario’s criminal justice system, but when the offense is committed in a domestic setting, additional consequences may result.
Violence or the threat of violence against a member of the same household or family elevates the offence, and it is unlikely to be met with any sympathy by law enforcement, prosecution or judges in Ottawa.
Even a first-time domestic assault offender can face jail time and a permanent criminal record, although alternative measures programs may also be available. It is, therefore, essential to understand the gravity of the offence and to seek legal representation to avoid the worst consequences of a domestic assault conviction.
What is domestic assault in Canada?
It surprises some people that there is no such crime as “domestic assault” in Canada. The Criminal Code of Canada clearly defines assault, but does not directly refer to domestic assault or violence.
Instead, domestic violence is considered an assault against someone with whom the defendant is in an intimate relationship. This can lead to charges under one of several provisions contained in the Code, depending on the precise nature of the violence:
- Assault
- Sexual assault
- Assault with a weapon
- Assault causing bodily harm
- Making indecent and harassing phone calls
- Kidnapping and forcible confinement
Under the Criminal Code of Canada, assault is defined in the following way:
(1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
Most domestic violence crimes in Ontario involve physical abuse committed by a current or ex-spouse, a common-law partner, or a dating partner.
Note that the threat of force can also constitute assault in Canada. Technically, no physical contact is necessary to file domestic assault charges. Psychological or emotional trauma can be sufficient for a conviction, depending on circumstances.
How are first-time domestic violence offenders treated in Ottawa?
While domestic violence is considered a serious crime in Ottawa and no automatic leniency is afforded to first-time offenders, the chances of avoiding the worst consequences increase if an offender has no prior criminal record.
If assault charges are filed due to violence in a domestic setting, prosecutors, judges, and juries will consider many factors when deciding how to pursue, adjudicate on, or sentence the case. These factors include:
- The severity of the domestic assault
- Any injuries to the complainant
- The relationship history between the complainant and the defendant
- The criminal history of the defendant
- The safety of the victim and their family
After an arrest in such cases, the bail and release conditions often include no-contact orders for defendants. No-contact conditions remain in effect until the case is resolved and can be onerous on families, especially where children are involved. The case will go to trial unless the charges are dismissed (very rare) or a plea bargain is negotiated between the prosecution and defence lawyers.
Potential legal consequences for first-time offenders
Most domestic assaults are hybrid offences in Canada, including all offenses that fall under the “simple assault” classification in the Criminal Code. This means that they can be treated as summary or indictable offences.
With legal representation and a clean record, there is a good chance of first-time offenders avoiding jail time if the offence proceeds as a summary conviction. Bear in mind, though, that even a relatively minor domestic assault offence prosecuted summarily can technically lead to two years less a day in provincial jail.
More serious domestic assaults with aggravating factors are indictable offences. Leniency is far less likely, even for first offenders. Here are a few examples of potential penalties for domestic violence convictions prosecuted as indictable offences:
- Up to five years in federal prison for domestic assault.
- Up to 10 years in federal prison for sexual assault offences or assaults causing bodily harm.
- Up to 14 years in federal prison for aggravated assault or if a child under 16 is sexually assaulted.
- Aggravated sexual assault carries a maximum life sentence.
With legal representation, first-time offenders rarely receive the maximum sentence. However, they will need to live with a criminal record, potentially resulting in long-term consequences for employment, housing, immigration status, travel, and even child custody in divorce cases.
Alternative measures available for first-time offenders
Domestic assault first-time offenders may be able to avoid jail time if little or no physical violence occurred and alternative measures are available to them. Several sentencing options for judges may be preferable to jail time, unless the safety of the alleged victim remains a concern.
Many defendants are also parents responsible for raising children, so judges may be reluctant to jail them without a compelling reason. Sometimes, even a criminal record can be prevented.
The most common alternative sentencing options include:
- Peace bonds (810 recognizance) where an individual must “keep the peace and be of good behaviour” for a specified period, typically up to 12 months.
- Diversion programs or court-ordered counselling may be available to first-time offenders, focusing on rehabilitation and preventing future offences.
- House arrest/conditional sentence, where the defendant is usually free to work, but strict conditions of house arrest may apply to maintain family safety.
- Conditional discharge, which results in no criminal record if the defendant completes a period of probation and meets all conditions, such as attending anger management classes.
- Suspended sentence (probation), where an offender is released for a period and, if conditions are met, no jail time is served.
- Fines of up to $5,000 (but at least it can prevent jail time).
How can a criminal defence lawyer help?
Without legal assistance, domestic violence defendants are far more likely to end up in jail, with a criminal record, and with consequences worse than they expected.
An experienced criminal defence lawyer who understands domestic violence charges can advise on the next steps after the arrest and charge and work on building a defence. Not only can this keep you out of jail, but a criminal record may be prevented, depending on negotiations with the Crown prosecution.
Your defence lawyer will represent you in court and, even if you are found guilty at trial, work to mitigate the consequences for you.
Contact David Anber’s Law Office Today
If you’re accused of domestic violence in Ottawa, the sooner you speak with a qualified domestic assault lawyer, the better.
At David Anber’s Law Office, our lawyers have considerable experience in defending domestic violence cases. To schedule a free consultation to speak with one of our skilled domestic violence lawyers, call us toll-free at 1-888-989-3946 or contact us online.