Domestic Assault Lawyer in Mississauga & Brampton
Offences in this category include allegations of physical violence, sexual assault, threats, criminal harassment, and other such allegations against a family member. Domestic assault charges are typically laid against men.
Assault is any intentional application of force or gesture to another person. This can range from a spit or shove to a full-blown fight. The slightest amount contact can result in assault.
Defences include that it did not happen, the assault was consensual or in self-defence. These are just a few examples.
The police will require that the complainant give them a video statement under oath immediately following the event. They do this to also preserve the evidence of the complainant on a video to use late at trial should the complainant change his/her story.
The complainant is under no obligation to give such a statement and may wish to obtain legal advice before giving a statement through duty counsel or another lawyer. A complainant should not be afraid to ask to call a lawyer before giving any statement to the police.
Often a spouse will call the police or 911 with the aim to scare the other spouse into changing their behaviour. Little do they know is that the police will charge the other spouse and the bail conditions will require that spouse to find another place to live and eliminate any direct or indirect contact with the spouse and the children.
This has serious consequences for the family as a whole. Charges cannot be withdrawn by a spouse nor will filing documents (such as an affidavit) with the police help. Once charges are laid, only the Prosecutor has the power to withdrawn charges. As a matter of their policy, the Prosecutor will rarely withdraw this charge.
There are also those times where the criminal justice system is abused by those who call the police to remove the spouse from the home in order to obtain an advantage in a family court proceeding. Unfortunately, this is done more often than not.
Care must be taken when defending charges of assault. There can be serious implications in terms of your right to your children under the Family Law Act or the Divorce Act.
Assault
265 (1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) 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
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
Application
(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
Consent
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
Accused’s belief as to consent
(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.
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