Domestic Abuse Lawyer Toronto

In Canada, domestic violence is addressed through a combination of criminal and civil laws designed to protect victims and prosecute offenders. The legal framework includes specific legislation, specialized courts, and mandatory charging policies to ensure that domestic violence cases are treated with the seriousness they deserve. Ontario has Integrated Domestic Violence Courts that address both family law and criminal law matters related to domestic violence, such as at 311 Jarvis.

For accused people, Domestic Violence charges are serious matters, triggering the need to seek out experienced representation via a Domestic Abuse Lawyer in Toronto.

Mandatory charging policies, such as those in Ontario, require police to lay charges in domestic violence cases if there is reasonable belief that an offence has occurred, regardless of the victim’s wishes. This policy aims to reduce the incidence of domestic violence by ensuring that offenders are held accountable.

This article touches on some important information that often comes up in questions when accused individuals are interviewing / consulting with a Domestic Abuse Lawyer in Toronto.

The Court Process in a Domestic Abuse Case in Toronto: An Overview

The court process in a domestic assault case in Toronto, Canada involves several key stages, starting from the initial police involvement to the final sentencing. When a domestic assault is reported, the police investigate the incident, which may include arresting the accused and collecting evidence. The accused may be held in custody or released on bail with specific conditions, such as staying away from the victim and surrendering any firearms.

Once charges are laid, the case proceeds to court, where the accused may enter a plea. If the accused pleads not guilty, a trial date is set. During the trial, both the prosecution and defence present their evidence and witnesses. The court considers various factors, including the severity of the assault, the relationship between the parties, and any aggravating circumstances, such as the presence of children during the assault or a history of violence.

If the accused is found guilty, the court moves to the sentencing phase. Sentencing in domestic assault cases often emphasizes deterrence and denunciation, reflecting the serious nature of these offences and their impact on victims and society. The court may consider factors such as the level of violence, the presence of bodily harm, and any previous criminal record of the accused R. v. Forde, [2012] O.J. No. 6348, R. v. K.S.C., [2015] B.C.J. No. 1492, R. v. Creighton, [2016] A.J. No. 393. Sentences can range from conditional discharges to imprisonment, depending on the specifics of the case R. v. Bell, [1997] P.E.I.J. No. 90, R. v. May, [2012] O.J. No. 5673.

Throughout the process, the criminal justice system aims to protect the victim and prevent re-victimization, ensuring that the prosecution process does not further harm the complainant R. v. C.B.L., [2022] B.C.J. No. 1506. The courts also strive to address the broader societal implications of domestic violence, recognizing its pervasive impact on families and communities R. v. Bell, [1997] P.E.I.J. No. 90, R. v. K.S.C., [2015] B.C.J. No. 1492, R. v. C.B.L., [2022] B.C.J. No. 1506.

A Domestic Abuse Lawyer in Toronto can assist you with navigating this process, which will be unfamiliar to you if you’ve never been charged before.

Potential Punishments for Domestic Abuse

In Canada, the potential punishments for domestic assault vary depending on the severity of the offence and the circumstances surrounding it. Sentences can range from non-custodial measures to significant periods of imprisonment.

For less severe cases, such as common assault, the range of penalties can include discharges, probation, fines, or short-term imprisonment. For instance, the maximum sentence for common assault when prosecuted summarily is six months imprisonment R. v. Gardiner, [2019] A.J. No. 231. In cases where the assault causes bodily harm, the penalties are more severe, with sentences ranging from a few months to several years in prison. For example, assault causing bodily harm can carry a maximum sentence of ten years’ imprisonment if prosecuted by indictment.

In cases involving repeated domestic violence or where significant bodily harm is inflicted, courts often impose harsher sentences to reflect the seriousness of the offence and to serve the objectives of denunciation and deterrence. Sentences in such cases can range from several months to multiple years in prison. For example, the Ontario Court of Appeal has indicated that a custodial sentence should be imposed where significant bodily harm has been inflicted, with sentences for repeated domestic violence assaults ranging from a few months to 36 months or more R. v. H.W., [2022] Q.J. No. 14962, R. v. Kaiser, [2001] B.C.J. No. 1798.

Additionally, the presence of aggravating factors, such as a history of prior offences or the assault occurring in the presence of children, can lead to more severe penalties. Courts emphasize the importance of protecting victims and deterring future offences, often resulting in significant custodial sentences for offenders with a history of domestic violence R. v. A.A., [2021] Nu.J. No. 42, Spousal Abuse and Children of Divorce: A Differentiated Approach, (1996) 13 Rev. Can. D. Fam. 215-285.

Overall, the range of punishments for domestic assault in Canada is broad and depends on the specific circumstances of each case, with courts taking into account factors such as the severity of the assault, the presence of aggravating factors, and the offender’s criminal history R. v. H.W., [2022] Q.J. No. 14962, R. v. Kaiser, [2001] B.C.J. No. 1798, R. v. K.S.C., [2015] B.C.J. No. 1492.

How to Secure Changes to Bail and Undertaking Conditions for Domestic Abuse Charges

Bail Variations

Securing bail variations in Canada involves a specific legal process that can be initiated by either the accused or the Crown. The process is governed by the Criminal Code and various court rules and practice directions.

To secure a bail variation, the accused or their counsel must typically fill out and sign the appropriate form, such as Form 10B, and forward it to the Crown for review and signature. The Crown will then send the variation to an available judge for approval. This process can be done remotely, and sureties may sign the form in the presence of counsel or provide written confirmation that their signatures were witnessed by video.

Bail variations are often sought in cases involving family violence, where conditions may be adjusted based on the progress of the accused in a treatment program. For example, a bail variation might allow full contact between the defendant and the complainant, subject to the complainant’s written, revocable consent R. v. Sarahang, [2021] O.J. No. 1999. Additionally, the ladder principle in section 515 of the Criminal Code requires that bail conditions be the least onerous necessary to address the risks posed by the accused, ensuring that conditions are tailored to the individual circumstances of the case R. v. Zora, [2020] 2 S.C.R. 3.

In some cases, the Crown may consent to bail variations, especially if the initial conditions are no longer deemed necessary or if the accused’s circumstances have changed significantly R. v. Panov, [2014] O.J. No. 3952, R. v. Katz, [2024] O.J. No. 4514. However, if the Crown does not consent, the accused may need to apply for a bail review, which involves a more formal court hearing R. v. Katz, [2024] O.J. No. 4514.

Overall, securing bail variations requires careful adherence to legal procedures and often involves negotiation with the Crown and approval by a judge. A Domestic Abuse Lawyer in Toronto can guide you through this complex process in order to increase the odds of securing your objective.

Undertaking Variations

If you were released by the police on conditions, you may still apply to have those conditions amended. The process is different than for bail conditions. This process would take place in the Ontario Court of Justice rather than the Superior Court.

To secure variations of an undertaking under the Criminal Code of Canada, the process involves specific steps and requirements. The conditions of an undertaking can be varied with the written consent of both the prosecutor and the individual subject to the undertaking.

When seeking a variation without a court attendance, the application must include a notice clearly identifying the terms to be varied, supported by a copy of the original release order and any previous variations. It must also include a sworn affidavit from the applicant confirming their understanding that the original release order remains in effect and that non-compliance constitutes an offence. Furthermore, a sworn affidavit from each surety is required, indicating their position on the variation and their acknowledgment of being bound by the varied order.

In practice, the Criminal Code does not authorize police to unilaterally vary a Form 10 police undertaking. However, variations can occur with the written consent of the prosecutor, without the need for a justice’s approval in most provinces, including Ontario.

Consult with a Domestic Abuse Lawyer in Toronto to assist with an Undertaking Variation Application, which can be made prior to a first appearance in court if you and your significant other are struggling to remain apart.

What Happens if I Fail to Comply with My Release Conditions

Failure to comply with the conditions of an undertaking or bail, including attending court as required, can result in an offence under section 145 of the Criminal Code, which may lead to arrest and potential imprisonment.

Potential Defences to Domestic Abuse Charges in Toronto

In Canada, there are several potential defences available for individuals charged with domestic assault. These defences can vary depending on the specific circumstances of the case, but some common defences include self-defence and reflex action.

Self-defence is a widely recognized defence in Canadian law. It can be invoked when the accused was not the aggressor, the force used was reasonable in the circumstances, and there was a threat of imminent bodily harm. This defence is particularly relevant in cases where the accused acted to protect themselves from an immediate threat posed by the complainant. In the context of domestic violence, self-defence may also be considered if the accused was acting to protect another person, such as a child, from harm.

Reflex action, while not always classified as a formal defence, can negate the intent element of an assault charge. This defence argues that the accused’s actions were involuntary and not premeditated, thus limiting the Crown’s ability to prove the case beyond a reasonable doubt.

A more common defence route is to call into question the credibility of the complainant, such as by analyzing inconsistencies in her/his statement.

Additionally, and more rarely, the defence of duress may be applicable in certain situations where the accused acted under a threat of imminent death or serious bodily harm, and their actions were necessary and reasonable to avoid this threat.

A defence strategy can be developed with a Domestic Abuse Lawyer in Toronto after they scrutinize your disclosure.

Andrew Captan – Domestic Abuse Lawyer Toronto

Andrew Captan is a very experienced Domestic Abuse Lawyer in Toronto and has been defending individuals charged with Domestic Crimes for over 13 years. For a free consultation, call (647) 878 – 6355 or e-mail him at andrew@captanlaw.com.