Under Canadian law, no offences are specifically categorized as ‘domestic’. Any crime – including assault – that takes place in a domestic setting is considered a domestic offence. Here, the complainant or victim is usually the accused’s spouse, intimate partner, child or other family members. It is an assault if the defendant is accused of stabbing, hitting, kicking, punching, pushing, stalking, threatening death, throwing objects or causing any kind of bodily harm. Domestic assault cases are pursued vigorously by the police and Crown prosecutors in Canada and have been declared a zero-tolerance crime by both federal and provincial governments.
While domestic violence is a significant problem and must be handled seriously, it’s also true that 1 in 5 domestic assault allegations are determined by police to be baseless. Whether resulting from a mutual misunderstanding, a sudden fit of rage, or a planned attempt to get someone in trouble, allegations of domestic violence can land you in trouble. The criminal justice system works on evidence, examination and cross-examination, and if you’re found guilty of this kind of assault, the consequences can be profound and life-changing.
Considering the seriousness of the charges and their potential lifetime impact, hiring a criminal defence lawyer is a good idea.
If you’ve been arrested and charged with domestic assault, you need to know how to successfully defend yourself in order to avoid a criminal record.
What Are Your Defences Against Domestic Violence Charges?
Being charged with or convicted of domestic assault can have severe, long-lasting effects. If you’ve been arrested and/or charged with such a crime, you need to know your possible defences to avoid a criminal record. And a criminal defence lawyer is the best person to advise you.
1. The Accusations Against You Are False
When police receive a report of domestic violence, with reasonable grounds supporting the claim, they are obliged to make an arrest in many cases to protect the alleged victim. This initiates a whole sequence of events, and it may seem like you’re already being treated like a criminal.
So, how do you prove that your charges have been laid in error or that your actions have been misinterpreted? This will depend on the facts specific to your case.
Witnesses may work in your favour and be able to testify as to your innocence. Perhaps you have an alibi. Or the accused may admit to fabricating their allegations in private text messages or social media posts.
When you hire a criminal defence lawyer, they will assess all circumstantial evidence and gather witnesses to try to disprove the allegations. Remember: even if the complainant withdraws the case, the Crown will consider the pressure under which they may be doing so and continue with the prosecution.
2. The Victim Was Lying
A common defence against domestic assault allegations is claiming that the victim is lying or plotting against you. The victim may lay charges out of anger or because of a personal grudge in an effort to defame you or harm your career. Or they may be trying to gain the upper hand in a divorce or custody case. No matter the circumstance, your criminal defence lawyer will look for any disparities in the evidence, including the victim’s account of events, to prove they are lying.
3. It Was an Act of Self-Defence, or You Were Defending a Family Member
Defending oneself or a family member is a common justification in domestic violence cases. This means that you can be found innocent even if you physically attacked a family or household member. If the assault was to save yourself or someone else (like a child or older family member) at risk of serious or fatal injuries, you’re not guilty.
You can also plead your innocence if the victim was the initial attacker, has a history of violence, or you believed the threat of injury was imminent. These defences are frequently used in domestic abuse cases, and your lawyer can determine if they are applicable in your case.
4. It Was an Accident
If you admit to having hit the victim but assert that it was an accident, your lawyer will investigate and re-enact the incident to confirm the consistency of your statement. For example, if you claim that your knife slipped and hit your spouse while you were chopping food in the kitchen, your lawyer will check for evidence. This could include the knife’s location, the victim’s position during the incident, bloodstains on the crime scene, and other possible weapons.
5. The Police Committed Investigative or Procedural Errors
If you’re charged with domestic violence but the police committed errors during the investigation, your lawyer will try to prove their misconduct by substantiating one or more of the following facts:
- The police interrogated you while in their custody but did not record your statement.
- You were denied your request for a criminal defence lawyer.
- There was no valid reason to conduct a search or interrogation.
- The police pressured you even after you invoked your right to remain silent
- The case was not serious or urgent enough for a search to be conducted without a warrant.
- The police did not bother to hear your account of the events before arresting you.
- The police did not question eyewitnesses.
- The police report does not properly describe the incident.
The success of your case will largely depend on the level of communication between you and your attorney. Being open and honest with all details related to your domestic violence case will make the legal process easier and move faster. Lying or withholding vital information could cost you your freedom, job, reputation and personal relationships.