Domestic Assault – A lawyer’s perspective

Writer : Arif Hussain, B.A. (Hons.), J.D
Barry Fox & Associates

 

Domestic Assault or the alleged assault that takes place between spouses is a terrible problem in our community that often does not get discussed. It has always existed but due to recent media attention on related topics, people and particularly women are feeling more comfortable to come forward and make reports to police. The facts that are at the heart of these cases often stem from everyday discussions and arguments stemming from children, money, relatives back home, cooking, daily chores, amongst many others.

 

If you are ever arrested for domestic assault or any criminal offence, you should be provided with an opportunity to speak to a lawyer at the first available chance. If this does not happen, your rights guaranteed under the Canadian Charter of Rights and Freedoms may be infringed. There may be Charter remedies that you should discuss with your lawyer once you have retained them.

 

Due to our current bail system and in light of recent court decisions, typically for less serious domestic assault charges you will be released on your own recognizance from the police station. If this does not happen, that means you will be held for a show cause hearing, where you will usually be held overnight and taken to court next morning for your release. The idea is that your prospective sureties, family and friends are working diligently with a competent criminal lawyer overnight to secure your release from the court next day.

 

You should always strive to have a private lawyer do your bail hearing as the specific terms, conditions and wishes you may have can be argued and become part of your release (bail) order from the court. If you fail to do this, then the Duty Counsel’s Office who may have more files than they should may not be able to adequately address your specific needs. Do note that until your matter is resolved in court and this can take over a year sometimes, you will need to abide by all of your bail conditions. For example, the complainant in a domestic assault matter may be your wife and the court will order you to not contact her directly or indirectly. It does not make sense then that you should also have the same restrictions with your children where they are not related to the assault charges whatsoever. But this and other bail issues arise more often than you may think. It will cause you problems down the line and in order to get it sorted you will have to hire a lawyer eventually to fix it.Therefore, address all of your issues early at the start with your lawyer.

 

The intention of our criminal justice system is not to break families apart but keep them together whenever and wherever possible, therefore, the resolution options offered in domestic assault cases can be very lenient. More often than not, especially where the accused does not have a criminal record and the allegations are not serious, the Partner Assault Response (PAR) Program can be offered. Upon successful completion of this program, a wide range of things can happen, anything from charges being directly withdrawn to having a conviction registered against you and facing a criminal record. The PAR program at most is only half the equation. Be very careful before you accept any program or plea in court. You should always speak to a lawyer before you accept or make any decisions in court.

 

If you have been charged or think you will be charged with domestic assault or any criminal offences, you should contact an experienced criminal lawyer that has expertise in that area for legal advice.

 

Arif Hussain is a Criminal Defence Lawyer. He strictly practices only Criminal Law. He is with Barry Fox & Associates at 3B – 1911 Eglinton Avenue East. This is the first office attached to the Ontario Court of Justice in Scarborough (Warden and Eglinton). He also works Per Diem for the Crown Attorney’s Office in Etobicoke and North York.

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