13 Sep Navigating Domestic Violence Charges in Calgary
A domestic violence charge is a serious matter with significant legal implications. In Canada, there is a zero-tolerance policy towards domestic abuse. Zero-tolerance means that when a complainant reports domestic assault, the police must lay charges, and the state will proceed with prosecution, regardless of the complainant’s later wishes.
To successfully challenge a domestic violence charge, an accused must secure high-quality legal representation. A highly skilled and experienced Calgary domestic violence defence lawyer can protect your rights and give you the greatest prospect of clearing your name.
This article explores what constitutes domestic violence, the potential consequences of a conviction, and the strategies your lawyer may utilize in your defence.
Definition and Examples of Domestic Violence
Domestic violence involves abusive behaviours between individuals in an intimate relationship or family setting, which can include married couples, dating partners, common-law partners, or parents and children.
While the term “domestic violence” is not explicitly set out in the Canadian Criminal Code, the following are some examples of what can constitute domestic violence:
- Punching or kicking
- Threats of harm
- Verbal harassment
- Emotional and psychological abuse, such as belittling or isolating another
- Financial control, such as withholding access to money or resources
- Damage to personal property, such as breaking or destroying items
- Sexual coercion or assault, including non-consensual sexual acts
Potential Consequences of a Conviction
Being found guilty of any charge connected to domestic violence can have severe consequences on a person’s life. The potential penalties vary depending on the nature of the offence and whether the prosecutor proceeds summarily or by way of indictment.
If the domestic violence charge relates to an assault, the Criminal Code provides the following maximum penalties:
- Section 266: Assault is punishable by up to 5 years imprisonment if prosecuted by indictment.
- Section 267: Assault with a weapon or causing bodily harm carries a maximum penalty of 10 years imprisonment.
- Section 268: Aggravated assault, which involves wounding, maiming, disfiguring, or endangering the life of the complainant, carries a maximum penalty of 14 years imprisonment.
Suppose the allegations are that an intimate partner or family member caused someone to fear for their safety or the safety of another person. In that case, the police may impose a criminal harassment charge. In this case, s. 264(3) of the Criminal Code outlines that if the prosecution elects to proceed through indictment, an accused faces up to ten years’ imprisonment if found guilty.
It is important to note that intimate partner violence is an aggravating factor in any criminal charge. Intimate partner violence can, therefore, exacerbate the severity of any sentence imposed if convicted. Moreover, the increased vulnerability of female victims, especially those who are Indigenous or are of minority status, is also considered at sentencing. The courts impose more severe penalties on those found to be repeat offenders.
Legal Defences and Strategies
There are numerous defences and strategies defence counsel may employ in countering the prosecution’s case. The following are some examples:
Factual Innocence
Defence counsel can set out to raise a reasonable doubt that the accused is innocent of the alleged charge by establishing factual innocence. Where an accused testifies in their defence, the Court will assess whether the accused’s version provides a defence.
If the Court believes the accused, it will find him not guilty. However, if the Court disbelieves the accused but is left in a reasonable doubt by his evidence, the Court will still find the accused not guilty. This occurs in situations, for example, where the Court is unable to determine what happened.
Perhaps the Court believes both parties and is unable to render a decision. Either way, the accused gets the benefit of the doubt. Only if the Court outrightly rejects the accused’s evidence and accepts the evidence called by the Crown on the essential elements of the offence will the Court find the accused guilty.
The threshold of proof beyond a reasonable doubt remains onerous, and the burden always rests on the Crown to prove guilt. The accused is not required to prove anything.
Self-Defence
Counsel may raise the self-defence argument if there is evidence that the accused was subjected to force or had a reasonable belief of imminent harm. For this defence to succeed, the accused’s response must have been both necessary and proportionate in the circumstances.
Consent
The defence can also argue that a physical act occurred with mutual consent and did not result in bodily harm. This defence often arises in mutual physical confrontations between parties or domestic parties so long as bodily harm is not involved.
However, if bodily harm occurred, the Crown must still prove that an accused actually intended to cause physical harm. The complainant’s consent is a defence to a charge of common assault.
Charter Defences
Your lawyer may highlight any breaches of your rights under the Canadian Charter of Rights and Freedoms. Presenting Charter breach evidence may result in the judge excluding improperly obtained evidence.
Credibility and False Accusations
Defence counsel can argue that the complainant made a false accusation if there is evidence that the allegations are unfounded. For example, counsel can present evidence which shows that the complainant had a hidden motive in making the accusations.
The Crown must often produce credible and reliable witnesses to meet the threshold of proof beyond a reasonable doubt. The defence can question the complainant’s credibility and reliability by identifying inconsistencies in their statements and other factors which undermine their account of the alleged events.
Final Thoughts
A person accused of domestic violence can never take such a charge lightly. The consequences of conviction can be severe.
Whether the charge is assault, criminal harassment or any other crime, the penalties imposed if found guilty exacerbate due to the involvement of domestic violence.
Therefore, anyone facing criminal charges involving domestic violence must consult with an experienced and highly skilled Calgary domestic violence defence lawyer.
Each case is fact-dependent, and the consequences one faces will vary. However, retaining a skilled lawyer early on will give you an advantage in defeating any charge.
Disclaimer
** The articles and content displayed within this website are for informational or marketing purposes only and may have been written by a third party. They should not be construed as legal advice. You will not be considered a client of the firm until we have agreed to act for you in accordance with our usual policies for accepting clients. No action with regards to your particular matter should be taken until you have first sought full legal or professional advice from a lawyer fully retained to act on your behalf.