Domestic assault is treated harshly by the Canadian justice system, but it can come with some confusion on just how serious the charge will be. It can fall into two categories, but not everyone will know what these categories are and how they will affect you.
That’s what we’re going to help with here. If facing a domestic assault charge, this will allow you to better understand your options and the next steps you should take. Let’s get started as we look at felony vs misdemeanor domestic assault.
Understanding Canadian Law Terms
The first aspect to clear up is that Canadian law doesn’t use the terms felony and misdemeanor. These are terms in American law and aren’t relevant to those in Canada. However, Canada does have different terms that closely match.
Misdemeanor offences can be likened to the Canadian term of a summary offence. These are less serious crimes that come with lighter penalties. More serious crimes in Canada are called indictable offences instead of felonies. These come with harsher penalties, including potentially long prison sentences.
Therefore, while Canada doesn’t use the terms felony or misdemeanor, it still categorizes its domestic assault cases into one of two terms. For the rest of the advice here, we’ll be using the Canadian terms of summary and indictable offences.
It’s also important to know that many crimes under Canadian law are called hybrid offences. With these crimes, the prosecution will decide whether it should be treated as a summary or indictable offence. More serious charges, like murder, will automatically be treated as an indictable offence.
Related Article: https://www.agpllp.ca/the-different-types-of-criminal-charges-in-ottawa/
Understanding Domestic Assault in Canada
The second aspect to clear up is that there is no crime as “domestic assault” in Canada. Instead, the domestic aspect of family violence will be seen as an aggravating factor to the relevant assault charge. This makes it more likely for these cases to be indictable.
While there is no specific crime of domestic assault, the Canadian code does provide specific provisions for dealing with these cases. These provisions can be the likes of no-contact orders, which are designed to protect the alleged victim.
Related Article: https://www.agpllp.ca/how-to-beat-an-assault-charge-in-canada/
Whether Domestic Assault is Summary or Indictable
There are a few factors that will determine how the case will be dealt with. By far, the biggest factor will be the injuries caused. If the victim has suffered significant injuries such as deep lacerations or internal injuries, this is likely to be an indictable case.
Each assault charge in Canada has a pre-existing classification. There are no assault charges that are explicitly classified as summary offences. However, there are a few that are hybrid, so they can, therefore, be classed as either summary or indictable depending on the circumstances.
Hybrid Assault Charges
- Simple assault
- Assault with a Weapon or Causing Bodily Harm
- Sexual Assault
- Assaulting a Peace Officer
- Assault by Choking, Suffocating, or Strangling
Indictable Assault Charges
- Aggravated Assault
- Sexual Assault with a Weapon, Threats, or Causing Bodily Harm
- Aggravated Sexual Assault
When it comes to hybrid offences, the prosecutor will consider several different factors before determining whether to proceed with the case as a summary or indictable offence. One of the biggest additional factors will be if it was a domestic assault.
Many provinces, including Ontario, take a strict line on domestic violence cases, and prosecutors can be more inclined to proceed by indictment. This will be especially true if there are other aggravating factors. These can include:
- Use of a weapon (firearm, knife, blunt object, etc.)
- History of abusive behavior
- History of violent offences
- Vulnerable victim or breach of trust
- Intent and motive
- If the assault was in front of children or other family members
Once the police have collected their evidence, this will then be sent to the Crown prosecutor for their charging decision. Here, they will decide what form of assault you will be charged with and whether it will be a summary or indictable offence.
Does The Summary or Indictable Decision Matter?
It depends on the charge. For the likes of aggravated assault, it’s always going to be tried as an indictable offence. Therefore, in these cases, there is no extra need to worry about how the case is going to move forward.
For a hybrid offence, such as sexual assault and assault causing bodily harm, it becomes very important. The classification of the charge will affect the trial process, any potential penalties, and your legal rights, including how long you will need to wait before you can apply for a pardon.
While the distinction matters, the actual sentencing and punishment will be more influenced by the specific aspects of the crime and the circumstances around it. An experienced assault lawyer will be able to give you greater guidance once they knows the specifics of your case.
Final Thoughts
When it comes to felony vs misdemeanor domestic assault, we’ve learned these aren’t the terms used. Domestic assault will often be tried as an indictable offence. However, the decision will be made by taking in a wide range of factors, mainly the type of assault you’re charged with and any aggravating factors.
Due to these unknowns, it’s especially important to get experienced legal advice if you have been accused of domestic assault. Get in touch with AGP LLP today, and we’ll be happy to offer you a free consultation to see how we can fight your case.
