Criminal Law
Spousal Assault
Criminal Law
Spousal Assault Lawyers
In cases of spousal assault and domestic violence, the Crown is legally obligated to come to the aid of the victim in their pursuit of justice and protection from the accused. This is why, when faced with such charges, you need to get in touch with our experienced criminal defence team at Nanda and Associate Lawyers to fight the case on your behalf and clear your name of these charges. If convicted, you are looking at a possible jail sentence and a permanent criminal record.
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What constitutes the offence of spousal assault under the Criminal Code?
Domestic assault is not a separate criminal offence under the Criminal Code. Based on the nature of the offence, it will fall under any one or more of the three levels of assault charges. In fact, the domestic relationship between the parties involved will be treated as an aggravating factor, which might prompt the Crown to seek severe legal penalties against the accused. This is to deter the accused from any future acts of violence against the victim.
The Criminal Code of Canada defines the offence of assault as involving any of the following acts.
- When a person intentionally applies force to another person without their consent.
- When a person threatens to apply force on another person
- When a person openly wears or carries a weapon, thus intimidating or impeding another person with the implied threat to apply force.
Under the Criminal Code of Canada, the offence of assault is classified into different levels based on the nature of the assault, especially the element of violence involved.
- A simple assault (Level 1) falls under Section 265 of the Criminal Code and is defined as a minor infliction of force on another person without their consent, leading to minor or no injuries, or merely threatening to use violence against them. If convicted, the maximum prison sentence is 5 years.
- An assault with a weapon or resulting in bodily harm (Level 2) falls under Section 267 of the Criminal Code and is defined as an assault conducted using or while carrying a weapon or merely threatening to use the weapon against someone. If the assault injured the person, the injury must not be life-threatening but result in cuts, bruises, or fractures. If convicted, the maximum prison sentence is 10 years.
- Aggravated assault (Level 3) falls under Section 268 of the Criminal Code and deals with severe, permanent, and disfiguring injuries or life-threatening injuries. If convicted, the maximum prison sentence is 14 years.
There is no minimum mandatory sentence for assault mentioned in the Criminal Code. However, both assault and assault causing bodily harm are hybrid offences, allowing the Crown to decide on either the summary conviction or the indictable offence option depending on the aggravating circumstances of the case. An aggravated assault charge is automatically treated as an indictable offence. This means that the Crown will be seeking a jail sentence for the accused upon conviction.
How can our criminal defence lawyers help you in the case?
In a criminal offence, the burden of proof is higher on the Crown to establish the charges against the accused beyond a reasonable doubt. This is why you need to have an experienced criminal defence lawyer in your corner, fighting on your behalf. The services of a knowledgeable lawyer are important in the following ways.
Legal counsel and guidance.
Most people are not fully aware of the legal procedures involved or the finer points of the law applicable in their case. In such cases, it is always advisable to remain silent until you can contact a capable criminal lawyer and seek their advice on your next course of action.
Protecting your Charter rights.
In Canada, the law enforcement officials are expected to respect your Charter rights throughout. Your lawyer will monitor the case every step of the way and flag any Charter rights violations to the court. If they are found to be true, the court will disqualify the evidence collected. They will be declared inadmissible. If the disqualified evidence was crucial to proving the case, then the charges levelled against you will also be dropped.
Looking for weaknesses or inconsistencies in the Crown’s evidence
As mentioned above, the Crown must meet the threshold of proving the charges beyond a reasonable doubt. Your lawyer will look for any weaknesses or inconsistencies in the evidence to ensure that this threshold is not reached.
Presenting counterarguments in your defence
Your lawyer will conduct their own investigation to collect any evidence to disprove the charges laid against you. For example, if you were not even there at the site of the crime on the alleged date of the incident, your lawyer will present evidence to prove your alibi in court.
Legal representation
Your lawyer will legally represent you throughout all the proceedings, such as when plea bargaining with the Crown, at bail hearings, at the trial, and through the appeals process, if required.
We can Help
If you are dealing with any such assault charges, do not hesitate to reach out to our criminal defence team for immediate assistance. At Nanda and Associate Lawyers, our criminal defence team has more than two decades of excellent track record of helping our clients in fighting such criminal charges laid against them. Get in touch with our legal team today for legal support and assistance.
Frequently Asked Questions
What is the maximum sentence for domestic violence in Canada?
Domestic assault cases fall under the category of general assault charges in Canada. While the minimum sentence is not mandated in the Criminal Code, the maximum prison sentence in such a case will depend on the level of the assault applicable in each case.
A simple assault (Level 1)
Maximum prison sentence upon conviction: 5 years.
An assault with a weapon or resulting in bodily harm (Level 2)
Maximum prison sentence upon conviction: 10 years.
Aggravated assault (Level 3)
Maximum prison sentence upon conviction: 14 years.
Can I avoid jail time for spousal assault if it is my first offence?
The legal penalties for any assault will depend on the particular circumstances of the case. Both Level 1 assault and Level 2 assault causing bodily harm are hybrid offences. This leaves the matter to the Crown to decide on pursuing either the summary conviction or the indictable offence option. The relationship between the parties will be considered an aggravating factor in the case, as will the use of violence and the criminal record of the accused. Such aggravating factors might prompt the Crown to seek a jail sentence against the accused. An aggravated assault is automatically treated as an indictable offence, and the accused will be sentenced to jail upon conviction.
Can the victim drop the domestic violence charges in Canada?
No. Unlike in civil law, all criminal law cases are pursued by the Crown against the accused. In a domestic violence case, the Crown will be seeking justice in court on behalf of the victim, and there is absolutely no obligation on the Crown to drop the case even if the victim stops cooperating with them. In fact, under criminal law, apart from the pursuit of justice, it is the duty of the Crown to protect the public from violent offenders. However, in some cases, without the cooperation of the victim, it might be difficult to prove the charges against the accused in court.
What is the statute of limitations for a spousal assault offence?
The statute of limitations is not applicable to indictable offences. Under the Criminal Code, both simple assault and assault causing bodily harm are hybrid offences, and aggravated assault is an indictable offence. In most cases, the Crown can overcome the statute of limitations by pursuing the spousal assault case as an indictable offence. Since the domestic relationship of the accused to the victim is often treated as an aggravating factor, the Crown is most likely to bring the charges against the accused under the indictable offence route. Please consult with our criminal defence lawyer with the details of your case to confirm whether this will be applicable in your instance.
What is a hybrid offence?
Under the Criminal Code, for certain offences, the Crown reserves the right to pursue the charges against the accused under either the indictable offence or the summary conviction route. If there are aggravating factors involved in the case, such as the use of a weapon, and if the accused has a recent criminal history of other offences within the last 10 years, the case might be tried as an indictable offence, leading to serious legal penalties, including imprisonment, upon conviction. On the other hand, in the case of a minor offence involving a first-time offender, the Crown might pursue the summary conviction route, leading to shorter proceedings and lesser legal penalties.
What are the three levels of assault under the Criminal Code of Canada?
Under the Criminal Code, assault falls into three different levels based on the nature of the alleged offence.
- A simple assault (Level 1) falls under Section 265 of the Criminal Code and is defined as a minor infliction of force on another person without their consent, leading to minor or no injuries, or merely threatening to use violence against them. The maximum prison sentence upon conviction is 5 years.
- An assault with a weapon or resulting in bodily harm (Level 2) falls under Section 267 of the Criminal Code and is defined as an assault conducted using or while carrying a weapon or merely threatening to use the weapon against someone. If the assault injured the person, the injury must not be life-threatening but result in cuts, bruises, or fractures. If convicted, the maximum prison sentence is 10 years.
- Aggravated assault (Level 3) falls under Section 268 of the Criminal Code and deals with severe, permanent, and disfiguring injuries or life-threatening injuries. If convicted, the maximum prison sentence is 14 years.
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