Michelle Johal has practiced exclusively in the area of criminal law since 2005. She has been consulted by local media outlets to provide her legal opinions.
Checkout Some FAQs About Domestic Assault
What is “assault”?
Section 265 defines assault as:
265 (1) A person commits an assault when
- without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
- he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
- while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
In layman’s terms, assault is when an individual directly or indirectly applies force on another person with the intent to do so or when an individual tries to or threatens to apply force on another person.
Assault also includes assault with a weapon, assault causing bodily harm, aggravated assault, assaulting police, sexual assault, sexual assault with weapon, threats to a third party and causing bodily harm, and aggravated sexual assault.
Another key term for you to know is “complainant,” which refers to the alleged victim in the domestic assault context.
How is this different from “domestic assault?”
“Domestic assault” refers to any allegation of assault between married partners, common law partners, parties who are dating, sexual partners, siblings, children and parents, and other family members.
Domestic assault is an important factor when it comes to sentencing for those who are found guilty. It is considered an “aggravating factor,” which means that the offence is considered more serious. This, in turn, increases the severity of the punishment.
The difference in assault and domestic assault is further shown by the dedicated courtrooms for these cases. It is quite common in Ontario Courts of Justice to find special “domestic violence or intimate partner violence” courtrooms that are deal solely with these offences.
Impact on the client
It is important for you to know that during a charge of assault in the domestic context, you could face any/all or a combination of the following obstacles:
- Harder to be released on bail;
- Strict bail conditions, including
- Inability to return to your residence;
- Inability to communicate with the complainant;
- Upon sentencing, in addition to the above bail conditions becoming remaining, there is also the potential risk of an inability to communicate with children; and/or
- Having to provide a DNA sample that is kept on a national database.
Can my partner/the complainant drop the charges?
This is a common question. The short answer is “no.” Once a call is made and police become involved, any indication of domestic violence will require the police to arrest and charge the accused person with an offence. It is rare for a Crown attorney to decide not to pursue the charge against an accused person.
While there is a policy that requires Crown attorneys to consider the wishes of a complainant for a withdrawal, the decision for the case to proceed is up to the Crown attorney.
Can my bail conditions be changed to contact my partner/complainant?
This is another common question. The short answer is “maybe,” even if the complainant wants to contact you.
Whether or not your bail conditions can be changed depends on a variety of factors. If this is something you want to pursue, the best course of action is to have an experienced lawyer approach the Crown and ask for a bail variation – a change to your conditions. The Crown must be convinced that you do not pose a risk to the complainant. The easiest way for this change is if the Crown consents. If not, an application must be made and a hearing before a judge is required.
What happens if I do not obey the terms of my bail?
If you do not obey the terms of your bail, you put yourself at the risk of a further charge called, “failure to comply.” This will cause you to be re-arrested, charged, and held for another bail hearing. Your original bail may be cancelled. If you were released before with a surety, your surety risks losing the money they pledged for the original charge.
What if the complainant does not attend for trial?
There is a common misbelief that if the complainant does not show up for trial, your charges will be dropped. This is wrong. The Crown has several options available to them if this happens. This includes postponing the trial date to ensure the complainant attends; serving an official document called a “subpoena” that requires their attendance in court; or having the complainant arrested, taken into custody, and presented before a judge.
How Can Our Office Assist You?
Domestic assault is a highly specialized area of law that requires hiring a lawyer with experience and knowledge of the processes, options, and risks you face. We can help to explain what it means to fight the charges in a trial, plead guilty, enter a peace bond or accept any other offers from the Crown. We will explain the nuances of all offers and their hidden consequences. It is important that you speak to an experienced lawyer before accepting any offers.
Before making any final decision, please call our office at (416) 824-3584 and speak to us for a free consultation before making a decision.
The following represents only a sample of cases that were scheduled for trial. These do not include favourable resolutions that were negotiated with the Crown before a trial date was scheduled.
O.A. was charged with Possession of Cocaine for the purpose of trafficking and simple possession of Cocaine. Mr. O. and his co-accused had an encounter with the police in the parking lot of a community centre in Brampton. Mr. O.A. vehicle was searched by the police without a warrant and approximately 100 grams of cocaine was located. Counsel Michelle Johal applied to exclude the evidence on the grounds that the evidence was obtained in breach of his rights under Section 8, 9 and 10 of the Charter. Justice Molloy concluded that the search of the vehicle violated the Section 8 and 9 rights of the accused and excluded the evidence pursuant to s.24(2) of the Charter. The charges against Mr. O.A. were dismissed.
R. V. T.V.
T.V. was charged with produce marihuana, possession for the purpose of trafficking and possession of proceeds. After a month long trial, the Judge found that the evidence failed to show that the accused committed the offence of production of marijuana at two residences either by her direct actions or by aiding and abetting. The judge also found that in the absence of proof beyond reasonable doubt of knowledge of any criminal source of the funds from unnamed sources, resulting in the purchase of the named properties in possession of the accused, or any linkage of those funds or properties beyond reasonable doubt to criminal conduct, that the proceeds charges should also be dismissed. All charges against the client were dismissed.
R. V. J.S.
J.S. was charged with production of marihuana. The police located a grow operation in the basement of her residence. The Crown initially took a position of 9 months jail as a result of the introduction of mandatory minimum sentences. The charge of production of marihuana was ultimately withdrawn by the crown.
R. V. H.S.
H.S. was charged with trafficking marihuana and possession of proceeds. York Region Police officers arrested him in his vehicle in the parking lot of a busy retail establishment. After successful resolution discussions with the Crown, the criminal charge against him was withdrawn.
R. V. O.A.
Client and his co-defendants were charged with trafficking in a large amount of cocaine. Following a trial in the Superior Court of Justice the charges were stayed because the police violated the client’s Charter right to be free unreasonable search and seizure due to the warrantless search of his van.
Discuss Your Case In Confidence
Our Brampton office is conveniently located beside the Criminal/Family Courthouse at 7755 Hurontario Street West, Brampton, Ontario. It is steps from the Peel Regional Police station where clients have to attend for fingerprinting.
Our Office is located on County Court Blvd across from the Tim Hortons in County Court Law Chambers.
The address is:
602-201 County Court Blvd
Brampton, ON L6W 4L2
We will respond to your inquiry within 24 hours.