Domestic assault is a serious matter that can affect not only your freedom but also your personal and professional life. The courts take these cases seriously, and it’s important to ensure you find an experienced lawyer to build the strongest defence.
But what are the top defences against domestic assault charges? That’s where we can help. Here, we’ll look at the options that will be available to you and your lawyer when fighting a domestic assault allegation.
Understanding the Charge
One of the most important facts about domestic assault is that it’s not a distinct charge under the Criminal Code. Instead, you will be charged with a specific type of assault with the domestic element then influencing how the case will be treated.
This matters as domestic cases are usually treated more seriously, and the courts often take a zero-tolerance approach. This is due to the power imbalances and the breaches of trust that can come with these cases.
However, this can benefit the defence. The legal standards for assault still apply, including the classic defences that come with them. Your lawyer can also use this fact to remove emotion from the case and focus the judge and jury on the actual evidence. With all that said, let’s look at the top 5 defences.
Related Article: https://www.agpllp.ca/7-mistakes-to-avoid-after-a-domestic-assault-charge-in-canada/
1. Factual Innocence
The most straightforward defence is to argue that the alleged assault simply didn’t happen. In Canada, the case will need to be proved beyond a reasonable doubt. The onus is on the prosecution to prove the alleged assault happened.
Domestic assault cases will often boil down to one person’s word against another’s. Without hard evidence, such as video, the Crown will try to use the likes of witness testimony, medical records, photos of injuries, and expert witnesses.
An experienced domestic assault lawyer will challenge the credibility of any evidence, as well as the consistency of any story. With a factual innocence defence, the aim will be to highlight the Crown’s case as being too weak or unreliable for a conviction.
2. Self-Defence
Canadians have a right to defend themselves, others, and their property. As long as the force used is reasonable, you can successfully claim self-defence in these circumstances. Crucially, the force needs to be reasonable and proportionate to the threat.
You would have to prove why you had no other reasonable choice at the moment. The circumstances of the self-defence would need to be considered. For example, you punching someone because they were threatening you with a weapon is much different than if you were responding to a minor shove.
3. Consent
In some cases, the accused may argue that the complainant consented to the physical contact. This is when both individuals voluntarily engage in the interaction, and there is no intent to cause bodily harm. This can be a valid defence, but there are difficulties.
Consent must be freely given, specific to the act, and with no serious injury. This defence can be seen in cases with mutual physical altercations where there was a scuffle but with no serious injury. An example could be both parties shoving each other. A third party may report the scuffle, but a defence lawyer can argue there was implied consent.
Other examples can be play fighting that went too far or brief retaliation (such as to a slap) that didn’t cause serious injury. Courts are cautious about applying this defence, and it requires a skilled defence lawyer to carefully state the case.
4. Accidental Contact
Another defence is to claim the physical contact was accidental. Any type of assault requires intent, and you can argue that what happened was unintentional. For example, you may have slammed a door in anger, not knowing your partner was right behind you.
The success of this defence will always rely heavily on the context. The claim of accidental contact also needs to be consistent with the injuries sustained. If your actions were careless but with no intent to harm, your lawyer can undermine the assault charge.
5. De Minimis
This defence comes from the Latin phrase of “de minimis non curat lex,” which translates as “the law does not concern itself with trifles”. In other words, it can be argued that the contact was so minimal that it doesn’t warrant a criminal sanction.
Examples include brushing away a hand, bumping into someone when trying to move past them, or using only a light touch. It can be argued that the accuser has exaggerated the contact involved, especially if there are no injuries to support their claims.
This is the weakest defence on this list, and the courts will be highly cautious. Even minor acts can indicate a pattern of control, and there doesn’t even need to be physical contact for an assault to occur. However, if the contact was minimal and had no harmful consequences, this defence can be used.
Final Thoughts
These are the top 5 defences against domestic assault charges in Canada, but each case is complex. An experienced lawyer will look at the details of the charge and come up with the best counter to the arguments the prosecution will put forward.
There are many factors that play a role in domestic assault cases that go well beyond mere physical evidence. Here at AGP, we’ll be able to take a close look at your case and see which of these defences is likely to be the most effective. Contact us today, and we’ll be happy to offer you a free consultation.
