As a domestic assault lawyer practising in Ontario, there are two questions I get asked all the time. First: “Will I get a criminal record for domestic assault?” And second: “Is there a chance I'll go to jail?”
My criminal law firm has seen a sharp rise in the number of new clients facing domestic assault charges throughout the pandemic. The majority of these clients have never been in trouble with the law before. They are married professionals with children in the home. They are newcomers to the country coping with Covid and the stresses of migration. A surprising percentage are newlyweds, navigating the thorny world of matrimony under lockdown.
In this article I examine the range of likely sentences that can result from an Ontario domestic assault case. Specifically, I address the chances of acquiring a permanent criminal record for domestic assault or going to jail as a result of the charge.
After icy dealings with the police, my clients usually feel intimidated by the justice system. In many cases, their partners on the other side feel exactly the same way. My clients share the same basic worries: what will happen to my job, my reputation, my future? These are important questions for people with a lot to lose. They want to know what kind of sentence they can once the ordeal is over.
Sentencing in Ontario Domestic Assault Cases for First Offenders
In this article I examine the range of likely sentences that can result from an Ontario domestic assault case. Specifically, I address the chances of acquiring a permanent criminal record for domestic assault or going to jail as a result of the charge. The article is addressed mainly to first offenders, as they make up the core of my law firm's practise.
Mild domestic assault charges are by far the most common at my criminal law firm. Most of my clients facing domestic charges are married professionals bent on safeguarding their employment, ability to travel and future earnings potential.
As always, the information contained in this article is not legal advice. You should not rely on it to assess your own case without consulting with an experienced domestic assault lawyer. Instead, use this article to help familiarize you with key terms in domestic assault cases. Based on the seriousness of your charge (mild, moderate or severe), you may also develop a general impression of the range of sentences in Ontario domestic assault cases.
Throughout this article I make two critical assumptions:
First, you do not have a prior criminal record, particularly for violent offences; and
Second, you want to know what results are possible at the pre-trial phase of the case - that is, without going to trial.
This last point deserves attention. If you're facing domestic assault charges in Ontario you have the right to a fair trial. At atrial, the Crown will attempt to prove the allegations against you by calling live witnesses, including the complainant. Domestic assault trials usually take place in front of a judge, and they usually require a year or more to reach in court.
My criminal law firm has a proven track record fighting and winning domestic assault trials. But, in my experience, they are unnecessary in the majority of cases. Unless domestic charges are especially serious, or a client's objectives simply cannot be met without one, trials often only translate into delay, costs, and more time away from home.
Be sure to consult with your own criminal lawyer about the pros and cons of proceeding to trial in your case.
With that, let’s look at sentencing in domestic cases by examining three types of domestic violence cases. Throughout our analysis, we'll pay specific attention to whether a criminal record, jail time, or both are likely sentencing outcomes.
Criminal Records and Jail in Ontario Domestic Cases
I. Sentencing in Mild Domestic Assault Charges
The majority of domestic assault charges in Ontario can be described as mild in nature. These terms are not intended to minimize the seriousness of domestic violence as a social problem. Instead, they simply distinguish one class of domestic assault cases within the full spectrum of those in the Ontario criminal justice system.
What is a “mild” domestic assault case? While every domestic assault allegation is different, mild cases tend to have a few important features in common:
Generally, the domestic charges are limited to: assault, mischief, or uttering threats;
Generally, the complainant or victim has not suffered any notable injuries; and
Generally, the person facing the charges has no prior criminal record.
Further, one or more of the following features is often present in these types of domestic cases:
The intimate partners are often married or in a long-term relationship;
The intimate partners often have children;
The complainant often did not phone the police with the intention of having their partner charged;
The complainant often wants the domestic charges dropped;
The intimate partners have not had any prior contact (“occurrences”) with the police.
There are many other variables that can augment or decrease a lawyer’s assessment of whether a domestic case is truly mild in nature. Like a doctor's stethoscope, however, these features give an experienced lawyer a rapid snapshot of a case.
Now let’s consider the normal range of sentence, or outcome, that results in mild domestic case. Specifically, we'll examine whether jail or a criminal record are a probable outcome.
The Risk of a Criminal Record or Jail in Mild Cases
Mild domestic assault charges are by far the most common at my criminal law firm. Most of my clients facing domestic charges are married professionals bent on safeguarding their employment, ability to travel and future earnings potential. They have mouths to feed and a normal, pro-social life to return to at the end of the case. In many cases, their wives or intimate partners want the domestic charges dropped as soon as possible.
Although a sentence involving a permanent criminal record is technically possible in any domestic assault case, I view this result as unlikely to highly unlikely to occur. In most cases, a criminal record would amount to an unsatisfactory result.
As a consequence, I also view jail as a highly unlikely sentence in a mild domestic assault case for a first offender.
Typical Sentences (or Outcomes) in Mild Assault Domestic Cases
So what are the typical range of outcomes in a mild domestic assault case?
A discussion of the typical range of sentence in any criminal case should begin by considering the Crown’s screening form position. This form, which is included in disclosure, sets out the sentence the prosecution would ask a judge to impose if you decided to plead guilty. We start the discussion here because the Crown's screening position usually establishes a ceiling, or worst case scenario, on sentence.
The Crown’s screening position is not the guaranteed outcome of your case. Between you and the Crown's position stands your domestic assault lawyer and a judge. As I like to say, “The Crown can ask for the moon. I plan on getting in the way.”
It is not unusual for Crown Attorneys to “screen” mild domestic assault cases for a suspended sentence and probation. This sentence would amount to a permanent criminal record but without any jail time.
A withdrawal of domestic assault charges is the best possible result for a person facing domestic charges. When domestic assault charges are withdrawn, the result is no criminal record and no associated court orders. More importantly, withdrawn domestic charges are usually eligible for an immediate request to destroy the police file created on your arrest.
Working downward from this starting point, therefore, other available sentences in mild domestic cases include a conditional discharge, an absolute discharge, a peace bond with a withdrawal of the charge, or a straight withdrawal of the charge without a peace bond. A description each of these outcomes will have to wait for another article. For present purposes, be sure to talk to your domestic assault lawyer about how achievable these sentences or outcomes are in your case. Before making any decisions, you will also want to know how each sentence or outcome can impact your employment, ability to travel, immigration status and other top-line priorities.
Getting Mild Domestic Charges Dropped
I represent a lot of professionals and first offenders facing domestic charges. At my law firm, the objective when representing clients facing minor domestic charges is always the same: a complete withdrawal of the domestic assault charge. We set our aims high and, I’m proud to report, often hit the mark.
A withdrawal of domestic assault charges is the best possible result for a person facing domestic charges. It avoids the issue of sentencing in domestic cases altogether.
When domestic assault charges are withdrawn, the result is no criminal record and no associated court orders. More importantly, withdrawn domestic charges are usually eligible for an immediate request to destroy the police file generated by your arrest. Put another way, when domestic charges are dropped the client is as near as possible to their pre-charge status.
Getting domestic charges dropped is the optimal outcome in a domestic assault case. Hiring the best domestic assault lawyer you can is the first, most important step you can take toward increasing your chances at this result.
II. Sentencing in Moderate Domestic Assault Charges
Moderate domestic charges tend to share at least two basic characteristics:
Generally, the charges include Assault with a Weapon, Assault Causing Bodily Harm, Choking, Criminal Harassment and can include Uttering Threats; and
Generally, the complainant will have suffered notable injuries, usually photographed by the police;
A number of additional variables will alter the range of achievable sentences, or outcomes, in moderate cases:
The intimate partner relationship may be in the course of ending (i.e. divorce or separation);
The complainant may be supportive of the case against the defendant;
There may be medical records in support of the complainant's injuries;
The defendant may have faced domestic assault charges against this or a previous intimate partner;
There may be previous police occurrences involving the same accused person or couple;
The domestic assault charges may be combined with allegations of child abuse; and
The charges may be combined, at present or in future, with allegations of violating a release order.
Sentences Involving a Criminal Record or Jail in Moderate Domestic Cases
Sentencing in moderate domestic assault charges varies widely, and can often change drastically during the course of a prosecution. For this reason, a careful review of the disclosure and a full work-up with the client are necessary to arrive at a reliable picture of the case.
Crown Attorneys often “screen” moderate domestic charges for a sentence involving a period of custody (normally 30 to 90 days) followed by a term of probation. Again, this sentencing position can and often does change as the case progresses in court. The strength of the Crown's case, the seriousness of the allegations and the wishes of the complainant are the three most important variables that will influence the course of the prosecution in moderate domestic cases.
The strength of the Crown's case, the seriousness of the allegations and the wishes of the complainant are the three most important variables that will influence the course of the prosecution in moderate domestic cases.
If accepted by a judge, a sentence including jail would result in a permanent criminal record for domestic violence. For some clients, this can translate into irreversible employment or immigration consequences.
Additionally, a judge is more likely to make "ancillary orders" if you are found guilty of a moderate domestic charge. This can include an order for a sample of your DNA or a weapons ban. If you are placed on probation, you will be required to comply with certain terms and conditions for a period of time, normally 12-18 months. If you fail to comply with these conditions, you could be charged with a further criminal offence.
In summary, therefore, sentencing for moderate domestic assault charges can and often does result in either a permanent criminal record, a short period of custody, or both. The range of achievable sentences or outcomes without a trial requires a careful review of your case. These outcomes can also change throughout the prosecution.
Importantly, hiring a skilled domestic assault lawyer is the single most effective way to improve the outcome in a moderate domestic case. A domestic assault lawyer will seek to "bottom out" the case by creating pathways to all of the lesser sentences previously mentioned in this article. This includes a suspended sentence (probation without jail), an absolute or conditional discharge, peace bond, or even a full withdrawal of the charges. A skilled domestic assault lawyer will also advise you on the pros and cons of proceeding to trial.
The Best Result in Mild Domestic Assault Cases
At my law firm, when a client is facing domestic charges "screened" for jail time, we set our aims high. The objective in most cases is to drive the sentence down to at least a conditional discharge, which in technical terms means probation but no criminal record. In many cases, we'll push the range of sentence even further by obtaining a full withdrawal of the domestic charges with or without a peace bond. This takes time, skill and sometimes even a bit of a luck.
In all cases, clients facing moderate domestic charges will need to be patient, manage expectations, and prepare for the long haul.
In all cases, clients facing moderate domestic charges will need to be patient, manage expectations, and prepare for the long haul. Unlike their mild counterparts, the elevated nature of moderate domestic charges means that they require more time and energy from all sides.
III. Sentencing in Severe Domestic Assault Charges for First Offenders
Thankfully, severe domestic assault charges are the exception in the Ontario court system. These are outlier domestic violence cases involving elevated charges like aggravated assault, assault with a weapon (i.e. a knife), sexual assault, aggravated sexual assault, child abuse (i.e. family violence) or comprising patterns of long-term or chronic abuse. The allegations usually involve serious physical or psychological harm to the complainant.
Severe domestic violence cases fall outside the purview of this article for two reasons:
Clients facing severe domestic violence charges usually want to proceed to trial; and
In most cases, clients facing severe domestic violence charges have a prior criminal record.
It should come as no surprise that Ontarians facing severe domestic charges are at an extremely elevated risk of being sentenced to jail and/or obtaining a criminal record if they plead guilty, even if they are first offenders. Depending on the nature of the allegations, the custodial term for this category of offence can range from a few months to several years. The ancillary orders discussed above (a weapons prohibition, DNA order, probation, and more) are all either mandatory or highly likely. The risks associated with irreversible immigration, travel and employment consequences are also higher.
For these reason, if you are facing severe domestic assault charges it is imperative that you consult with a domestic assault lawyer as soon as possible about your case. A domestic assault lawyer can assist in limiting your exposure to negative consequences by:
Implementing pre-trial strategies designed to lower the sentence in the case;
Discovering weaknesses in the evidence;
Discovering problems in the investigation;
Properly advising you on the odds of succeeding at trial vs. resolving the case;
Persuading the Crown, during pre-trial negotiations, to reduce their sentencing position; and
Persuading the judge who is hearing your case that your sentencing position, and not the Crown’s, should prevail.
At my law firm, we understand that every story has two sides. You can count on us to listen to yours.
Thanks for Following.
I hope this information has been helpful for you. From my years of practise, I know how bewildering and painful it can be to face domestic assault charges in Ontario. That's why one of my law firm's long-term goals is to slowly educate members of the Canadian public about this thorny area of the law.
As always, if you need advice on a domestic matter please feel free to contact my law firm. An initial phone call is always free. You can also reach us at info@shaffielaw.ca.
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