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Domestic Assault, Threatening And Criminal Harassment Lawyer In Toronto

Mississauga, Brampton and Newmarket Domestic Assault, Threatening and Criminal Harassment Lawyer

Commonly Asked Questions

1. What makes an assault "domestic"?

2. What is the sentence for domestic assault?

3. Are there aggravating sentencing factors for domestic assault?

4. What is assault causing bodily harm?

5. What is the sentence for assault causing bodily harm or assault with a weapon?

6. What is criminal harassment?

7. What is the sentence for criminal harassment?

8. Can a person charged with domestic assault get bail?

9. What are my Charter rights?

10. Can the Charter help my defence?

11. Can I get assistance from Legal Aid Ontario for my case?

There is a zero tolerance policy against domestic assault, threatening and criminal harassment in Ontario, regardless of whether the complainant is your wife or husband, your common-law spouse, one of your children, or a current or past girlfriend or boyfriend. If you are facing an allegation of domestic assault, threatening or criminal harassment, you will, in all likelihood, be prosecuted. A conviction for domestic assault, threatening, or criminal harassment is very serious and can result in significant penalties, including jail time. In addition, a conviction can hurt your case for custody and access in the event of family court proceedings.

Once a charge is filed, only the Crown can withdraw it. Even if your accuser decides not to move forward with the case, the Crown is likely to prosecute. It is important to have a qualified Toronto domestic assault, threatening and criminal harassment defence lawyer on your side. As a senior criminal defence lawyer practicing since 1985, I have the knowledge and the experience necessary to defend these types of charges. I will challenge the prosecution's case and work hard for your acquittal.

I work to expose those who make reckless accusations to advance a separation or divorce strategy. I expose lack of evidence and complaints without any confirmed injury or uncorroborated threat allegations. I conduct independent investigations and thoroughly prepare your case for court.

What About Being Released on Bail?

In domestic assault, threatening and criminal harassment cases, the bail conditions are as much of a concern as the charges themselves. The conditions are very specific, restrictive and usually include a prohibition on cohabiting or communicating with the complainant while your case is pending. You will be allowed to return to your home one time, with a police escort, for personal belongings. If appropriate, I will file an application for a bail variation with the Superior Court of Justice seeking a change or variation to the conditions of your bail.

Information about being a surety for someone on bail is available here.

Information on the completion of your bail hearing is available here.

Call Defence Lawyer Anthony De Marco for a Free Consultation

Contact my Toronto, Ontario, office today to discuss your domestic assault, threatening, or criminal harassment case. I offer a free 30-minute consultation. For your convenience, I offer reasonable payment plans. You can reach me by phone at (416) 651-2299 or toll free at 1-888-399-3164 or by e-mail.

What Makes an Assault "Domestic"

What makes an assault, threat, or criminal harassment "domestic" is the nature of the relationship between the defendant and the complainant. If the complainant is a spouse or a current or former domestic partner, such as a previous girlfriend or boyfriend, the offence will be considered by the Crown prosecutor as "domestic" in nature which will bring into play the Crown's "zero tolerance policy."

If there is a sexual or aggravating element to the assault, a defendant may be facing a charge of sexual assault, aggravated sexual assault, aggravated assault or the lesser and included offence of assault causing bodily harm. If an object was used during the assault, the charge may be assault with a weapon.

Do Domestic Charges Always Result in a Trial?

Some clients may be eligible for the Partner Assault Response program (PARs). This is a domestic violence program that you attend in exchange for being granted a discharge. This type of resolution will require you to plead guilty and can cause problems for you.

Sometimes the charges can be disposed of by you agreeing to participate in remedial programs, such as anger management and marriage counselling, and by agreeing to sign a peace bond stating that you promise to keep the peace and be of good behaviour. You may also then be allowed to have contact and to cohabit with the complainant with the complainant's prior written revocable consent. Such a resolution is not automatic; it is the Crown's decision, and careful negotiation is essential. I have been successful in these negotiations on many occasions for my clients.

With your consent, I can negotiate with the Crown to see if I can secure a favourable resolution on your behalf.

I will only recommend a guilty plea where there is no possibility of an acquittal.

Is the sentence for a domestic assault higher than the sentence for a common assault?

Sentences imposed in domestic assault cases are generally higher than in non-domestic assault cases. The reason for this is that section 718.2 of the Criminal Code of Canada requires a Court that is imposing a sentence to take into consideration certain principles including the principle set out in subsection 718.2(a) that states that "a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender."

There are various circumstances that are deemed to be "aggravating circumstances". One of those aggravating circumstances is set out in subsection 718.2(a)(ii) which states that an aggravating circumstance is "evidence that the offender, in committing the offence, abused the offender's intimate partner or a member of the victim or the offender's family." In other words, it is an aggravating factor for purposes of sentencing that the complainant was the accused person's spouse or family member. This principal of sentencing applies to all domestic offences from simple assault to murder.

What if the accused and the complainant both hit each other?

In some circumstances, it may be possible to win your case by advancing the common law defence of consensual fight. In other words, if it can be shown that both the defendant and the complainant consented to fight, without using a weapon or causing bodily harm, then the defendant should be acquitted on the basis that the fight was consensual. This type of defence will not require an actual agreement to fight. The circumstances will speak for themselves regarding whether or not the fight was consensual based on the totality of the evidence and the nature of the relationship between the defendant and the complainant. There is also legal precedent recognizing that a threat made against a spouse may not necessarily amount to a criminal offence if there is a reasonable doubt that the threat was meant to be taken seriously or meant to cause fear or intimidation.

The Defence of de minimis non curat lex

Intentionally applying any amount of force to another person is technically a common assault. If the force applied is trivial, or the impact of the force is negligible, it may be possible to advance the common law defence of de minimis non curat lex. This phrase translates to "the law is not concerned with trifles." The defence argument here is that the assault was so trivial that the court should simply dismiss the charge. There is legal precedent, at least from the lower courts in Canada, recognizing this defence. I argued this defence before the Court of Appeal for Ontario in a case involving a minor assault in which my client was acquitted at trial but the Crown appealed. Unfortunately, the Court of Appeal declined to rule on whether the defence exists in Canadian common law. Instead, the Court of Appeal ruled that even if the defence does exist, it was not available to my client on the facts in my client's case. The Court did, however, grant my client an absolute discharge.

Self-Defence

A much more common defence in assault cases is self-defence set out in Section 34 of the Criminal Code of Canada which reads as follows:

34 (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person's role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person's response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

Assault

Section 265(1) of the Criminal Code of Canada reads as follows:

265(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.

Assault with a weapon or causing bodily harm

The use of a weapon in committing an assault or an assault resulting in bodily harm will attract higher penalties. Section 267 of the Criminal Code of Canada reads as follows:

267 Every one who, in committing an assault,

(a) carries, uses or threatens to use a weapon or an imitation thereof, or

(b) causes bodily harm to the complainant,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Unlawfully causing bodily harm

Section 269 of the Criminal Code of Canada reads as follows:

269 Every one who unlawfully causes bodily harm to any person is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or

(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Uttering Threats

Section 264.1 of the Criminal Code of Canada reads as follows:

264.1(1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat

(a) to cause death or bodily harm to any person;

(b) to burn, destroy or damage real or personal property; or

(c) to kill, poison or injure an animal or bird that is the property of any person.

Criminal Harassment

Section 264 of the Criminal Code of Canada reads as follows:

264(1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

(2) The conduct mentioned in subsection (1) consists of

(a) repeatedly following from place to place the other person or anyone known to them;

(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them

(c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or

(d) engaging in threatening conduct directed at the other person or any member of their family.

Regardless of what type of domestic offence charge you are facing, I will conduct a thorough review of the evidence against you. I will provide you with an honest and realistic assessment of your case and help you understand what to expect throughout the process.

I will explore any legal defence that can be used in your case. I will also see if the police were thorough in their investigation and if the witness statements that have been gathered are credible, reliable and are from reputable witnesses.

If your case requires a jury trial, I have the necessary experience, advocacy skills and confidence to convincingly argue your case to the jury.

Aggravated assault

Aggravated assault is an extremely serious type of assault. A person charged wtih this offence may elect to have a preliminary inquiry in the Ontario Court of Justice and then a trial in the Superior Court of Justice before a Court composed of a Judge sitting with a jury.

Section 268 of the Criminal Code reads as follows:

268 (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.

(2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

(3) For greater certainty, in this section, "wounds" or "maims" includes to excise, infibulate or mutilate, in whole or in part, the labia majora, labia minora or clitoris of a person, except where

(a) a surgical procedure is performed, by a person duly qualified by provincial law to practise medicine, for the benefit of the physical health of the person or for the purpose of that person having normal reproductive functions or normal sexual appearance or function; or

(b) the person is at least eighteen years of age and there is no resulting bodily harm.

(4) For the purposes of this section and section 265, no consent to the excision, infibulation or mutilation, in whole or in part, of the labia majora, labia minora or clitoris of a person is valid, except in the cases described in paragraphs (3)(a) and (b).

DNA and Other Forensic Evidence

Forensic evidence, such as DNA evidence, is just one type of evidence that the Crown can try to introduce against a person accused of a crime. The defence can challenge the admissibility of forensic evidence on the basis of relevance, prejudice or that there is a lack of a sufficient scientific foundation to make the evidence reliable and worthy of being admitted, in other words, the forensic evidence is inadmissible because it is based on "junk science".

Over the years, there have been several types of forensic evidence that have been rejected by the courts in the United States and, to a lesser extent, Canada, including voice print identification, comparative bullet lead analysis and several indicators of arson dependent on visual cues.

Likewise, there are various other types of forensic evidence which are possibly unreliable, such as microscopic hair comparison, and "pattern comparison" evidence such as bite marks, tire marks and handwriting.

Even in cases where the forensic evidence is ruled admissible, the defence can still try to weaken the impact of the evidence by arguing, for example, that the results of the forensic testing were the subject of "motivated perception". In other words, the scientist who did the testing interpreted the results so as to support his or her expectations or the expectations of the police or Crown prosecutors. The defence can argue, or call evidence to show, that the forensic examiner should have first tested the evidence blindly without knowing anything about the case in order to avoid a subconscious bias. Studies have shown that even the opinion of fingerprint analysts can be affected by the analysts' preconceived notions about the case. Also, there is always a risk of a false positive. Moreover, if the laboratory that completed the testing, such as the Centre of Forensic Sciences, is known to have made errors on occasion in the past, the defence can argue that the error rates should also be entered in evidence.

In appropriate cases, and where funds permit, the evidence can be re-tested by an independent laboratory for verification.

A good defence lawyer should know the weaknesses of specific scientific techniques or seek out an appropriate defence consulting expert to learn about and present evidence regarding those weaknesses.

Pre-Trial Charter Applications

Often, the best defence to a criminal charge involves a challenge to the investigation that resulted in the arrest of the accused or the collection of evidence against the accused. The police are not allowed to breach the rights that are guaranteed to the accused by the Canadian Charter of Rights and Freedoms.

I will investigate any possible Charter breaches by carefully reviewing the Crown disclosure documents, including the documents used by the police to obtain search warrants for the home, car or other property of the accused, and the documents used by the police to obtain production orders, such as for cell phone records and wiretap authorizations.

If I detect any violation of the Charter rights of the accused or violation of acceptable investigative procedures established by the courts, I will proceed with an application asking for the exclusion of evidence from the trial of the accused obtained illegally by the police, including the statements of the accused and other evidence seized during the investigation.

I have an established reputation for success in pre-trial applications. Winning a Charter application will result in the exclusion of evidence if the court determines that not excluding the evidence will bring the administration of justice into disrepute. The exclusion of evidence often results in a finding of not guilty if the Crown's remaining evidence is insufficient to prove that the accused committed the offence beyond a reasonable doubt.

I have the necessary experience, research skills, writing skills, and advocacy skills to prepare and effectively argue pre-trial Charter applications. The value of legal writing skills cannot be overstated since proceeding with pre-trial Charter applications will require the preparation of several documents including a Notice of Application, an Affidavit, and a Factum setting out the relevant facts and summarizing the relevant case law.

Electing to Have a Preliminary Inquiry

In cases in which a Defendant is exposed to a possible period of 14 years in jail or more, the Defendant will have the right to proceed with a preliminary inquiry in the Ontario Court of Justice and then a trial in the Superior Court of Justice before a court composed of a Judge sitting with a jury or without a jury. In the past, this level of court was referred to as "High Court".

The completion of a preliminary inquiry is not mandatory. The Defendant has the right to waive the preliminary inquiry and to proceed directly to trial in either the Ontario Court of Justice or the Superior Court of Justice. If the trial is to be completed in the Superior Court of Justice, the waiver of the preliminary inquiry will require the consent of the Crown.

At a preliminary inquiry, the Crown is required to call some evidence upon which a properly instructed jury, acting reasonably, may return a verdict of guilt. This is an easy test for the Crown to meet in the vast majority of cases. Accordingly, it is relatively rare for someone who proceeds with a preliminary inquiry to be discharged with respect to all of the charges which he or she is facing. The real value in having a preliminary inquiry is not in the hope of being entirely discharged, thereby bringing the entire criminal proceedings to an end, but in being able to better prepare the case for trial. The defence lawyer will have an opportunity to cross-examine and test the evidence of the primary Crown witnesses. An experienced and skilled defence lawyer can discover the strengths and weaknesses of the Crown witnesses and commence building an effective defence strategy. A preliminary inquiry is especially valuable for the defence in cases involving young, infirm, unreliable or unsavory Crown witnesses.

Working to Preserve Your Freedom

In domestic assault, threatening, or criminal harassment cases, the accused may be released on bail, however, the bail conditions are often as much of a concern as the charges themselves. The conditions are usually very specific, restrictive and usually include a prohibition on cohabiting or communicating with the complainant while your case is pending. Usually, the accused will be allowed to return to the home one time, with a police escort, for personal belongings. If appropriate, the accused may file an application for a bail variation with the Superior Court of Justice seeking a change or variation to the conditions of the bail.

Call Defence Lawyer Anthony De Marco for a Free Consultation

Contact my Toronto, Ontario, office today to discuss your domestic assault, threatening, or criminal harassment case. I offer a free 30-minute consultation. For your convenience, I offer reasonable payment plans. You can reach me by phone at (416) 651-2299 or toll free at 1-888-399-3164 or by e-mail.

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