According to the latest intimate partner violence report from Statistics Canada, police reported 114,132 victims of intimate partner violence nationally in 2021, marking the “seventh consecutive year of gradual increase for this type of violence.” A 2019 Stats Can report on provincial intimate and non-intimate partner violence numbers claimed that Ontario police reported 30,185 victims, a 4% increase over 2018.
Meanwhile, the Canadian government has been proactively addressing intimate partner violence due to the increasing number of incidents, its potential impact on children, and the belief that domestic violence within a relationship can escalate if not quickly addressed. Canadian police will typically not hesitate to make an arrest when they find any evidence of domestic assault, and the Crown tends to take an aggressive approach in prosecuting domestic assault charges. During the sentencing of those convicted for the offence, judges often consider the domestic nature of the assault an aggravating factor that warrants harsher punishment than a similar, non-domestic assault.
With this in mind, you might believe that it’s impossible to get domestic assault charges dropped in Ontario and that the Crown will take a hard line in pre-trial negotiations. You might think that the Crown will push for a conviction in even the most minor assaults, like those characterized by an inadvertent push or limited force that didn’t cause any physical harm to the victim.
Well, read on because the criminal defence assault lawyers at Mass Tsang will tell you this is not always the case. While the Crown and Greater Toronto Area courts take a hard line on domestic assault, mitigating factors and robust pre-trial defence efforts can help get domestic assault charges dropped in Ontario.
Canada’s Criminal Code does not list “domestic assault” as a criminal offence. Instead, Section 265’s definition of assault is inherently characterized as domestic by the courts when warranted by the relationship between the alleged parties to the incident. Section 265 defines assault as:
This form of assault, which doesn’t even require that force be used, is commonly referred to as basic or simple assault. The maximum penalty for a conviction when charged as an indictable offence is five years imprisonment, while a summary conviction carries a maximum penalty of two years. There are no mandatory minimum sentences for the offence, which gives judges broad discretion in their sentencing decisions. Assault with a weapon or causing bodily harm (Section 267) and aggravated assault (Section 268 (1)) are much more severe assault offences that carry maximum penalties of a respective 10- and 14-years imprisonment. As previously suggested, if these assaults are recognized as domestic, the Crown and judges will consider this an aggravating factor in how they address the case. The domestic nature of the assault typically influences a stronger response from the Crown and potentially harsher penalties upon conviction from a judge.
In general, Crown prosecutors may consider dropping charges early in the judicial process for any criminal case for two primary reasons:
Both reasons are most likely to come into play with a simple domestic assault that did not result in any apparent physical or psychological harm to the victim, there were no children present, and it appears to have been an isolated incident. While the first reason is self-evident, determining whether something is in the public interest is a subjective exercise. In general, though, prosecuting a first-time offender with no history of prior domestic disturbance investigations by police who seems to be in an otherwise stable relationship with the victim may not be in the public interest.
Note that even if the alleged victim requests that the charges be dropped, the prosecutor has the ultimate authority to determine whether to proceed with the case. That said, a prosecutor will recognize that a victim who seeks dropped charges represents a likely weakening of the Crown’s evidence.
You should also be aware that a skilled criminal defence assault lawyer can prove instrumental in successfully advocating for dropped charges based on either of these reasons. A competent defence lawyer will advise the Crown of the limitations of their evidence during negotiations and explain why a conviction will not serve the public interest.
Even if the Crown seems to have enough evidence to prosecute a domestic assault case successfully, defendants can take specific actions to help encourage prosecutors to drop charges in low-level domestic assault cases. While these actions may not result in dropped charges in serious domestic assault cases, they can help influence more favourable terms in any plea bargain negotiations and/or mitigate penalties. Actions that have helped defendants secure pre-trial dropped charges in domestic assault cases include:
Any moves to secure dropped charges in a domestic assault case are best made with the strategic efforts of a skilled criminal defence lawyer. An experienced domestic assault defence lawyer understands how the Crown processes such charges and is adept at negotiating favourable settlements, including dropped charges. The Crown approaches domestic assault cases from the victim’s perspective, but an effective defence lawyer can ensure that they understand the defendant’s perspective on the incident, too. This may encourage a prosecutor to take a more measured approach to the case and even lead to dropped charges, especially if a conviction is not in the public interest.
Domestic assault is a serious offence that can result in severe penalties if convicted. Experienced criminal defence domestic assault lawyers, like those at Mass Tsang, are highly effective at strategizing defences that lead to dropped charges and other favourable pre-trial outcomes or positive outcomes for those cases that go to trial. The Mass Tsang criminal defence team has a decades-long track record of securing positive results for our Greater Toronto Area clients, so contact us for a free consultation if you or a loved one has been arrested for domestic assault.
