What is domestic assault?

By Last Updated: July 26, 2022

What is domestic assaultDomestic assault is an assault that occurs in the context of a domestic relationship, or an intimate relationship between two people of the same sex or two people of the opposite sex. This includes boyfriends and girlfriends, spouses, common-law partners, and other family members. It is important to know that while domestic assault is not an offence specified or defined in the Criminal Code, it is viewed as unique and treated differently than regular assaults by the police and by the courts.

Assaults that occur in the domestic context are treated more seriously than regular assaults for three main reasons: (1) domestic abuse is widespread in our society, (2) domestic assault can have a devastating impact on children, and (3) there is a high risk that domestic violence will escalate if it is not dealt with quickly and effectively. As such, in Canada domestic assault is an extremely serious offence and if you are found guilty of this offence, it will be an “aggravating factor” in sentencing. This means that the penalty for domestic assault will be more severe than the penalty that you would receive for a conviction for an assault that was not inflicted in the domestic context.

As such, any of the different types of assaults specified in the Criminal Code can be a domestic assault, so long as it is committed in the context of a domestic relationship. For example, you can be charged with simple assault, assault causing bodily harm, sexual assault, or aggravated assault, and any of these will be considered a domestic assault if it was committed against a family member or intimate partner.

To be convicted of domestic assault, the Crown Prosecutor will need to prove beyond a reasonable doubt the following:

  • The complainant was in a domestic relationship with you. So the complainant was a family member, romantically involved with you, married to you, or was your common law partner;
  • That you directly or indirectly applied force to the complainant without his or her consent;
  • The application of force was intentional; or
  • Through the use of words or actions, threatened or attempted to threaten to apply force to the complainant, and you had the present ability to carry out that threat; or
  • You accosted or begged the complainant while holding a weapon or an imitation of the weapon.

It is very important to note that the threat of assault is all that is required for an assault charge to be laid, so a person who is charged with domestic assault may be found guilty of the offence even if the complainant did not sustain any physical injuries. Furthermore, it is sometimes the case that the application of force in a domestic assault does not really cause any lasting injuries. Even so, you may be found guilty of domestic assault if the application of force was intentional and the complainant did not consent to it.

The Penalty For Domestic Assault in Canada:

The penalty for committing domestic assault in Canada depends heavily on your circumstances and can range from everything from a peace bond to time spent in prison. The exact nature of your sentence will depend heavily on the type of assault you have been charged with and whether the Crown is prosecuted by indictment or by summary conviction. If the Crown is proceeding by indictment, it is likely that you have commit a very serious assault and are facing some jail time. This will typically be the case if you have been charged with a serious offence like assault causing bodily harm or aggravated assault. For offences like sexual assault or assault causing bodily harm, you can face up to 10 years in prison if the Crown is proceeding by indictment, or 18 months in prison if they are prosecuting the charge as a summary conviction offence. If you are convicted of aggravated assault, you can face up to 14 years in prison.

Further, if you are convicted of one of the more serious forms of domestic assault such as aggravated assault or assault with a weapon, you may receive ancillary orders such as a DNA order or a firearms prohibition. The DNA order will require you to submit samples of your DNA to a national database that can be accessed by police officers across Canada. The police will then be able to access information about your DNA when they are investigating a crime, and will be able to use it to determine whether you are a suspect in other, subsequent offences.

To find out the exact nature of the jeopardy you face it is highly recommended that you call our office and speak to one of our lawyers as soon as possible. As the penalty that the Crown will pursue will depend heavily on your exact charges and personal background, speaking to one of our lawyers will provide you with the clearest indication of what type of sentence you might face following a conviction for domestic assault. Importantly, discussing your matter with a criminal defence lawyer will allow you to quickly ascertain whether there is a possibility of obtaining a pre-trial resolution that will allow you to completely avoid a criminal record.

About The Author

Michael Oykhman

Managing Partner

Michael Oykhman is a senior lawyer and founder of Oykhman Criminal Defence, a full-service criminal law firm with central law offices across Western Canada and Ontario.

My professional experience consists of countless court appearances and thousands of successful defences and satisfied clients. Over the last 10 years, I have worked to build a law office where all the lawyers share our collective experience, resources, and passion to help people. Our team approach to legal representation is client–rather than only law–centered. We look for opportunities to add value to our clients through strategic thinking and creative solutions.

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