First offence domestic charges in Toronto: most people do not realize the seriousness of the potential consequences and inconvenience to their family until it is too late.

For people being charged for the first time with a domestic violence offence it is often a shocking and depressing experience as the expectation that the whole thing will easily “go away” slowly fades and the reality of the seriousness of the situation unfolds.

Domestic cases often start with a phone call to 911 looking for police assistance. Most often the phone call is placed by the alleged victim but sometimes also by the accused themselves. For first timers, with no prior criminal records, convictions, or charges, their expectation is that the police will respond on scene and help resolve the relationship dispute.

What actually happens, however, is that the police will separate the parties and begin to ask questions. They will ask about unwanted physical contact, utterances of threats, and damage to property resulting from disputes both now and in the past. The police are fishing for any information to charge either one or both of the parties with a criminal offence. This is the primary job of the police responding to domestic calls.

Most people rarely have the opportunity to speak with a lawyer who can explain the consequences to them before the police arrive. As such, they end up talking and getting themselves or their spouse charged.

Assault (Section 266 of the Criminal Code of Canada)

Many first timers have no idea what the consequences of reporting seemingly minor physical contact (a push, shove, grab) to the police until it is too late. They expect the officer to listen to their story and then go back to their spouse and say “this is not something that you can do again” and then leave after hopefully diffusing the situation.

In reality the job of the police is to gather enough evidence (often just statements from witnesses) to arrest and charge one or both spouses criminally. They will then take them to the police station, possibly hold them overnight for a bail hearing the next morning, and ultimately give them a court date for criminal charges. This process occurs regardless of the allegation just being nothing more than a simple grab on the arm, a push, shove, strike to the torso, or something else that resulted in no injury whatsoever.

These charges are sometimes referred to as a simple assault, common assault, or domestic battery in Canada.

Assault with a weapon (s. 265), Assault carry weapon

When most people think of weapons they think of guns and knives. In domestic assault cases the weapon is often a bottle, remote control, phone, or other common household item. Contrary to the common belief that the individual must actually hit or strike the “victim”, the charge is often laid just because the person “carried” the item or had it in their hand at the time of uttering a threat or in the course of minor contact. They may even only be alleged to have made a threatening gesture or movement while holding the "weapon". The addition of this charge aggravates the case substantially.

Uttering Threats (s. 264.1)

Arguments get heated and sometimes people say things they do not mean. Police are trained on domestic calls to ask if the partner/spouse ever made a threatening statement such as that he will kill, harm or injure the other person or damage property by saying he will burn down the house, break things, etc. The complainant or person being interviewed by the police just thinks this is no big deal, as the threat was never carried out and simply said in anger, but once they say “yes – he/she said they would do X” before in the past or during the current incident the police will go ahead and press charges. The threat nead not even be made to assault, kill, or injure the “victim”, it could simply be a threat to damage matrimonial property (uttering threats to cause mischief).

Mischief (s. 430)

When an argument ensues, often a person will take their anger out on matrimonial property. Perhaps this is because they see this as a relatively harmless way to exert their frustration as nobody will be physically hurt. Regardless, the criminal law considers damage to property that someone else has an ownership interest in to be criminal mischief.

If any matrimonial property is damaged (glasses or dishes are broken, a remote control, cell phone, tv, furniture, etc.) the charges will be laid. If the parties are not legally married, the Crown Attorney will have to prove the defendant did not actually own (thus having a right to damage) the item/property.

Once the police have a statement, which is often just written in their notepad, that one of the above offences was committed they will proceed with their charging procedure which almost always leads to a lengthy ban on contact and communication between the parties.

If an incriminating statement is made, the accused is dragged away in the police car, booked at the station, and either held for bail or released on a criminal Undertaking (Form 10) with conditions that seem impossible to coordinate with their family’s responsibilities. The release conditions will almost always include no direct or indirect contact with the “victim” and not to be within X number of meters of the family home (or a place “victim” is known to be, live, work/place of employment, etc.). Other conditions relating to child access, CAS, alcohol/drug use, counselling, etc. may also be included.

A surety may be required to supervise the release of the accused on bail

The individual who is charged may also be required to obtain a surety to agree to pledge money and supervise their release in the community. Sometimes the defendant is required to live with their surety as a bail condition which may be incredibly inconvenient to their work/family/school schedule depending on the location of the surety’s house.

Finding a surety can be harsh for immigrants and/or those with few local friends or family

Some people will have difficulty finding a surety because they have few family and friends in the city. Toronto and the GTA is filled with immigrants, many of whom are somewhat alone in the city with few established ties. If the Crown Prosecutor requires the accused to obtain a surety to make bail, the accused may have to wait several days in jail as they attempt to find and contact someone to act as a surety.

Some accused may simply not have anyone willing to take on this role. In this instance the individual may feel pressured to plead guilty to a bad sentencing deal just to get out of jail. With their immigration status on the line they often find themselves with only a series of poor options to choose from.

How can families deal with their finances, access/custody to the children, accommodating school conditions, soccer practice, etc. when living under these no contact release conditions?

From the perspective of the Government, the accused should consider himself lucky to be released while their charges are pending. After all, the alternative to this is to await the disposition of his/her case in a provincial jail cell (perhaps for over a year).

Feeling frustrated over the seemingly ridiculous position their relationship/family has been put in, one or both parties often think:

Who can I talk to to fix this now? Where can I make a complaint about all of this?

The accused and often the complainant (alleged victim) will quickly become angry as they slowly begin to realize the seemingly impossible position the criminal justice system has put them in. For normal, everyday people with regular jobs, careers, and families, they see the police as a source of protection (which is why they called them in the first place), and the reaction to calling them seems inconsistent with that. How are they supposed to deal with their banking and finance issues, arrange who picks the kids up from soccer practice, and figure out the myriad other family issues if they can’t communicate with each other.

First time offenders, and those who are considered the “victims”, expect they can easily pick up the phone and make a complaint and fix the situation. After all, when they have an issue with a large company, bank, or other institution, they get relatively good customer service and a solution is eventually found. At the very least, someone is available to help them.

The Police, the Crown Attorney’s Office, Victim Services (V/WAP), CAS, and other Government agencies involved in domestic criminal cases do not operate like a corporation. They are part of the machine of the criminal justice system whose practices, procedures, and policies are very rigid, serious, and not geared towards customer service or accommodation.

For first time domestic offenders, the realization of the practical problems associated with the release conditions (Undertaking or bail Release Order) are just the tip of the iceberg. Soon they realize they may get a criminal conviction record, be placed on probation, have to go to jail, lose their job or find themselves unemployable, and be banned from travelling to the US and other countries in the future.

The first stage that first time domestic accused offenders go through is the realization of the problems associated with their release conditions (bail or criminal undertaking). The second stage is the realization that they are facing a very serious prospect of being placed on probation, getting a criminal record, and going to jail.

Not only are they displaced from their spouse/family, the incident may also cause them to lose their job, render them unemployable in the future, constitute cause for disciplinary actions from professional regulatory bodies they are a member of (teachers, nurses, physicians, engineers, etc.), cause them to be banned from travelling to the United States, and cause problems with Immigration, Refugees and Citizenship Canada (IRCC) for their current and future Canadian immigration applications (for non Citizens).

The prosecution often looks for criminal records in cases that seem minor (no injuries) even for first time accused offenders. People are shocked to see that the Crown Attorney will seek a guilty plea and/or criminal conviction record for a grab or shove, a drunkenly uttered threat that meant nothing, a broken cell phone, and other, seemingly harmless incidents, but this is the reality of domestic violence charges in Ontario.

Third party calls the police after witnessing something in public

Sometimes it is not even the “victim” or the accused who phones the police/911 because of a dispute, but an unknown third party who sees an argument in public and decides not to just mind their own business and instead inject themselves in the situation. Even if the two parties are just arguing or yelling, if it happens in a public place, there is usually at least one person who will decide to call the police.

When the police arrive on scene they will separate both parties and probe them with questions. Feeling obligated (though they are not legally obligated) to answer the questions, and thinking it is no big deal anyway, one or both parties will often report to the police that the other person (or they themselves) grabbed an arm, said something threatening, or pushed or grabbed the other person.

How can the justice system possibly be this tough? I thought Canada was supposed to be light on crime?

While Canada’s justice system is seemingly light on crime for murderers who get out of prison on parole at a relatively young age (while their victim is dead forever), this does not mean it is lenient for everyone.

For regular people facing a first time domestic charge the system can be incredibly harsh. The public perception of the police, at least for people who have never been criminally charged before, is that they are out to give them traffic tickets, attend public events, and hang out at construction sites. The reality is that they are primarily interested in charging people with criminal offences and, especially in the domestic context but quite frankly in almost all contexts, they will charge people criminally for anything that could possibly support a conviction in court.

The police never tell the people at the doorstep before getting a statement or before they answer their questions that: “if you tell us he/she grabbed your arm two months ago (or whatever other allegation), that they will have to move out of the house for many months, not talk to you, and may end up getting a criminal record that will render them unemployable”.

If the police described what would happen before asking questions the vast majority of people would not say anything to them because that was not their intention when they called them. So they withhold this information until after the incriminating statements are made. As mentioned above, their primary responsibility is to gather evidence.

People who have prior experience dealing with the police in a criminal context (who have been fingerprinted, charged, arrested, convicted, jailed, or have been to court before) have a much different perspective and greater understanding of how law enforcement and the courts operate.

Many of the so-called “street smart” people, who have been exposed to the police and the system before, know how easily it is to be charged, labelled and have their career or future employability ruined by a criminal record. Having experienced it before, they are often very cautious about speaking with police because their initial charges and interactions with the justice system are what caused them to be marginalized in the first place.

First time offenders, who are naïve about the system, falsely believe they are insulated from the dark worlds of poverty, homelessness, addictions, and having no future ahead of them. In Canada, all it takes is one person to make an accusation and a person’s life can be ruined. Often the person making the accusation is doing so because they believe talking to the police is a good idea (having no prior knowledge of the procedure/potential consequences).

While most Canadians walk around with a false sense of security, anyone’s life can be destroyed by nothing more than someone claiming they may have done something wrong.

In Canada, the line between being a normal person with a job, family, and a bright future ahead of them and someone on the street with a cup in their hand is a lot thinner than most people think.

For courthouse regulars who live a life on the streets, concepts such as being subject to release conditions, probation, jail, and going to court is just a part of their everyday life. Many of these people already have criminal records and seemingly nothing to lose.

When you get charged for the first time, especially for an alleged domestic violence incident, you are thrust into a system that treats you by default as though you also have nothing left to lose when in fact the opposite is true.


Call us today for a free assessment
You don't have to jeopardize your future or waste thousands of dollars on excessive legal fees. Our goal is to have the charges withdrawn and the release conditions varied to allow contact without a risky and unnecessary trial. We provide effective and affordable lawyer representation for those charged throughout all of Ontario, Canada.

You don't need to be apart from your spouse and family, spend tens of thousands of dollars, and risk getting a criminal record because of an unfortunate domestic incident. Have a skilled criminal lawyer protect you and your future from the stigma and consequences of a criminal record.





Are you a lawyer? If you are defending a domestic assault/uttering threats/mischief related case and are looking for expert advice regarding possible defences, case strategies, and information release management call us at: 647-228-5969.

Please note: We do not accept legal aid certificate cases. All clients are handled on a private retainer only.

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