Domestic assault is an assault that takes place between two people involved, or formerly involved, in a domestic relationship.
A domestic relationship can be a relationship between a boyfriend and a girlfriend, a husband and a wife, same-sex couples, common-law partners, and ex-romantic partners.
While there is a legal definition of assault in the Criminal Code, there is no legal definition of domestic assault. Nevertheless, the Criminal Code requires that, when sentencing a person, the judge should consider whether the offender, in committing the offence, abused his or her spouse or common-law partner.
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What is the maximum penalty for domestic violence charges?
What is a KGB statement?
A KGB statement is a videotaped statement by a witness that can be played in court as evidence even if the witness recants it. The statement is named after the name after the Supreme Court case that established this principle. Four conditions must be present before a KGB statement is played in court:
1. The statement must be made under oath, or solemn affirmation or solemn declaration. This means that it must be made with the person promising to tell the truth in a circumstance where lying would be a crime.
2. The person making the statement needs to be warned very clearly that giving a false statement in the situation would be a crime.
3. The entire statement needs to be on video.
4. The person that the witness is testifying against needs to be given a chance to question the witness in court by cross-examination through his/her lawyer.
If you are looking to provide a recorded statement to police, you should speak to an experienced criminal lawyer first to understand your rights and the consequences of speaking to the police. If a person lies under oath he or she can be charged with perjury. A conviction for perjury is something that can negatively affect future court proceedings for a witness.
In the case where a complainant changes his/her mind and wants the charges against the accused dropped, it is very important that he or she tells the truth. Even if a person is not charged with perjury for providing false information to the police, they can be charged with misleading police. Anybody looking to recant an allegation of domestic assault or any other criminal offence should first seek independent legal advice. Doing this ensures that he or she is acting within the bounds of the law and will not be subject to criminal charges.
What is a recant?
A recant is simply taking back as untrue part or all of some facts that you have told to police. Because of the unique nature of domestic relationships recants tend to be very common.
In domestic violence cases, victims and witnesses often recant for many reasons. A person recanting a statement should be mindful of some things:
1) Perjury – If the statement a victim recants was made under Oath and is then recanted, they can be charged for perjury. Perjury is a very serious charge with long-lasting consequences.
2) KGB Statement – If the statement to be recanted was made under oath and videotaped, it can still be used in some cases even if it is recanted.
3) Making a false statement – lying to police by providing a false statement is a crime.
4) Independent legal advice – If you are considering recanting a statement, it is very important that you talk to an independent lawyer (a lawyer that does not represent the other side) to make sure you are not breaking any laws.
5) Victims sometimes contact their accused partners to recant. This is not a good idea because if the accused person communicates back, he or she can be charged with breaching a no-contact order. The courts often make exceptions to no-contact orders, to allow contact through a criminal defence lawyer. Anyone who is thinking of recanting a statement should speak to a criminal lawyer first. Likewise, if a victim contacts an accused person to recant, the accused should contact a lawyer.
6) Just because a complainant recants a previous statement to the police does not mean that the charges against the accused will be dropped or withdrawn. The prosecutor is the only person that decides whether or not a charge will be prosecuted. For more information on how domestic violence charges against an accused person can be dropped read here.
Can assault charges be dropped by the victim?
After the police lay charges, prosecutors decide whether or not they will prosecute the charges. The decision to continue a prosecution is only that of the prosecutor. If there is no “reasonable prospect of conviction” a prosecutor will not continue a prosecution. This means that if there is no real chance of a conviction for the accused, the prosecutor will likely withdraw charges.
Additionally, if prosecuting a charge is not in the public interest, a prosecutor will not continue with the prosecution and the charge will be withdrawn.
How To Get Domestic Assault Charges Dropped In Ontario
As a criminal defence lawyer, I have seen charges withdrawn in assault cases countless times. One of the most common reasons why charges are withdrawn in domestic assault cases is because of a recant. A recant is simply when a victim takes back part or all of what he/ she said in his/her statement to police.
Sometimes victims exaggerate or simply lie. Other times they provided their statement to the police while intoxicated by drugs or alcohol. Sometimes due to stress or trauma, they have no memory of the event and are not sure if it happened. As a result, they may be unsure if they were truthful to the police when they made a statement. The way a victim feels about the truth of his/her statement at a later time is something that a prosecutor considers when deciding if there is a reasonable prospect of conviction or if the prosecution is in the public interest.
A Prosecutor will not withdraw charges automatically because a victim recants. Often, when a victim recants with a letter in writing that is provided to the police, most prosecutors will drop the charges against the accused person. Sometimes, this is not the case.
Prosecutors usually do not accept recant letters. If a victim provides a recant letter to a prosecutor, the prosecutor will often refer the victim to the police. There are many reasons for this. One of the reasons is so that the police can investigate to make sure there is nothing suspicious about the letter. Accused people sometimes forge recant letters. Other times victims write them, but they are false. Still, other times the letters come about because the accused is breaching a no-contact order that prevents him/her from legally talking with the victim.
Victims sometimes give recant letters to criminal defence counsel. Any victim looking to do this should seek independent legal advice. The victim should also remember that the defence lawyer is the lawyer for the accused and cannot also represent the victim.
There are other reasons to withdraw domestic violence charges. The circumstances of an accused or victim may cause the prosecutor to decide that there is no public interest in proceed with the charge. A domestic violence lawyer can meet with a prosecutor to discuss the facts of your case and try to help you get your domestic assault charges dropped.
What is the Punishment For Domestic Violence In Canada?
Is there non-custodial punishment for domestic violence in Canada?
In some cases of minor assaults for first time offenders, it is possible to get a sentence that does not involve jail time or a criminal record. There are domestic violence programs that are sometimes offered at the prosecution’s discretion. Completing and participating in these programs will improve your chances of receiving a lighter sentence. Sometimes completing this program can also result in you dealing with your domestic assault charges without getting a criminal record. In rare cases, it may even be possible for a lawyer to negotiate the withdrawal of your charges in exchange for certain courses of action on your part such as paying restitution or attending counselling independently. However, because of the serious approach that courts and prosecutors take to domestic assault charges, these types of resolutions are rare, especially without an experienced lawyer.
The prosecutor decides who will be given a chance to complete the programs that leave you without a criminal record. As a result, it is important that you have a criminal defence lawyer that can represent you and convince the prosecutor to allow you to participate.
What is a 'no-contact' order?
A no contact order is an order made as part of an accused person’s release conditions. If you are charged with a criminal offence a court usually orders that you not communicate indirectly or directly with the victim of the crime. This means that you cannot contact them over social media, email, text, regular mail or any digital means. This also means that you cannot send messages to them through a third party. If you breach a no contact order you can be arrested and charged.
What happens if the victim violates a no contact order?
If a victim is trying to have contact with you when there is a no contact order in place, you are still not permitted to contact him or her. If this is done, you can be charged. If this is done you can be charged. If you are looking for how to deal with a victim contacting you despite an order preventing you from contact, should call a criminal lawyer who can advise you based on your unique circumstances. You can also read more on that here.
How to get rid of a no contact order
It is difficult to change a no contact order in a domestic assault case. Even when the victim wants to have contact with the accused, prosecutors never consent to change these orders without an accused entering a guilty plea first. Additionally, courts will rarely make an order that allows contact between an accused person and a victim. Despite this, it is very common for the courts and prosecutors to make exceptions to no contact orders to allow contact through a criminal lawyer.
Upon entering into the PARS Program, the prosecutor will usually change your no-contact order to allow you to resume contact with the victim if the victim agrees.
If you are under a no-contact order that you would like to remove, contact a criminal lawyer for help with this process.
Domestic VIolence Resources
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