You have been charged with domestic assault. What can you expect?
Charges and sentencing
Domestic assault does not fall under a specific offence in the criminal code, meaning charges will depend on the nature of the allegations against you. You will likely be charged with assault or some variation thereof, such as sexual assault or assault causing bodily harm, but other charges may also apply. However, this does not mean that being charged with a domestic assault is no different from being convicted with an assault charge more generally, as your sentence can be harsher. To receive more specific legal advice regarding your charges, you should contact Collett Read LLP to retain us as your legal representatives.
Intervention orders
If you have been charged with or accused of domestic assault, any relationship partner may apply for an intervention order or emergency intervention order against you. The court may then make a temporary or final intervention order if they are satisfied with a balance of probabilities that domestic violence has occurred, and a person or property may be at risk of harm or damage. If you are notified that an application for an intervention order has been made against you, you should seek legal advice from a lawyer as soon as possible.
If there is enough evidence, the court can make an order protecting the applicant and anyone related to them. This includes any contact with these people or any behaviour that would be considered in violation of the order. The court can also make an order requiring you to vacate the applicant’s residence and pay the applicant compensation for monetary losses suffered by the applicant or any child as a direct result of domestic violence. Any weapons you own will likely be seized as well. The court can also grant the applicant or respondent temporary possession and exclusive use of specified personal property, as well as child counselling at your expense.
If an application for an intervention order is made against you, you will have 30 days to request a hearing before a judge. If the hearing results in the imposition of an intervention order against you, it will become effective immediately. Following its imposition, you may motion to the court at any time, upon notice to the applicant, to vary or terminate the order.
Loss of child custody
Your child may be removed from your custody by the court if they decide that your child needs protection. They can decide as much for a variety of reasons, notably including a conclusion that you have physically harmed or sexually molested your child. The court can place your child in the custody of another individual, make a society wardship order, whereby the child is placed in the custody of a children’s aid society, or a crown wardship order, meaning your child will be placed in the custody of the state. The court may also make a restraining order against you on your child’s behalf or put you on the child abuse register. If you believe that the court has taken custody away from you unfairly or incorrectly, you can appeal the decision to the Superior Court of Justice.
How can you protect yourself against domestic assault allegations?
The first thing to do to protect yourself against allegations of domestic assault is to ensure that you do not actually assault any spouse, former spouse, same-sex partner, former same-sex partner, person cohabitating with you or who has cohabited with you in the past, a person with whom you are or were engaged in a dating relationship, or relative that resides with you. If you do not give any of the above parties legitimate grounds to make an allegation of domestic assault, then it is less likely that any allegations will be made against you.
If you are found innocent, or the accusations are baseless, it may be possible to press charges against your accuser for defamatory libel if they published their allegations. If you wish to press charges, you should contact the police. Our firm does not handle civil litigation, so we will not be able to assist you with any lawsuits you wish to pursue on this basis.
What to do if a domestic assault allegation has been made against you
If an allegation of domestic assault has been made against you, you should ensure that you do not talk to the police before speaking to a lawyer. If you are arrested, you have the constitutional right to remain silent. You should remain silent whether you are innocent or not, as you may accidentally say something that hurts your case. You also have the right to retain and instruct counsel without delay. It is imperative that you exercise this right and contact a defence attorney as soon as possible so that they can help you navigate the criminal justice system and obtain the best possible outcome.
If you plead or are found guilty, you may be able to delay your sentencing to enroll in a domestic violence counselling program. A guilty plea combined with successful participation in such a program can indicate remorse and a willingness to rehabilitate yourself to the court and may result in a less harsh sentence.
You should also avoid making any form of contact with the complainant, applicant, or any other person they allege that you assaulted, especially in a threatening or violent way. If you absolutely must communicate with the complainant or a person whom they allege that you assaulted for reasons outside of your control, try to ensure that it is done in writing or with a third party if it must be in person. In either case, be extremely careful what you do or say so that it cannot be used against you in court. It is imperative that you not let your emotions get the best of you and do or say something that you will regret.