What you should do if you are charged with domestic assault in Ontario, Canada.

If you have been charged with a domestic offence it is important to take action now to put your case on the right track. Hiring a lawyer before the first court date is recommended to help get the no contact conditions changed and avoid a criminal record.

New domestic abuse charges are often laid by the police immediately after a call is made to 911 or a police report is filed. Even if the alleged victim changes their mind before the police arrive at the door it is often too late. If the police receive a statement saying an assault occurred, a threat was uttered, or property was damaged and they will almost always press charges if made in the domestic context.

For more information on how Ontario police and courts define a "domestic", please see our article on the classification of domestic offences.

Ensure compliance with all release conditions of the Form 10 Undertaking or Form 11 Release Order

It is important that the accused and the alleged victim immediately take steps to ensure they are complying with the release conditions of the Undertaking. This usually means no contact direct or indirect (through a third party). For couples that do not intend to break up it can be extremely difficult to comply with these conditions especially if they had been living together.

The level of inconvenience and expense of compliance with the no-contact conditions leads to a lot of people breaching and getting caught for it. Additional charges for failure to comply (s. 145) will be laid if the police become aware of the breach. All it takes is one subsequent incident or a third party (jealous ex, angry neighbour, disapproving parent, etc.) to report the breach to the police for new charges to be laid.

Obtain an exception made to the Undertaking's release conditions to allow for contact with the alleged victim while the case is still pending (if desired)

In the majority of the calls we get both parties want to reconcile and have contact again immediately. It is important to hire a criminal defence lawyer from the start to engage with the Crown Attorney to try to get them to consent to vary the release conditions allowing for contact.

The fastest way to have conditions changed is with the consent of the Crown. Getting the Crown’s consent will involve a mixture of factors including:

1. The seriousness of the allegations
2. The prior relationship history
3. The accused’s acceptance of responsibility (if any)
4. The accused’s participation in counselling or other mitigating steps taken
5. The wishes and opinions of the alleged victim (not determinative)
6. The accused’s prior criminal record

Some Crowns may be more willing to consent to a contact exception variation than others. It is helpful if the accused’s lawyer has experience dealing with the Crowns at the courthouse the accused’s case is being heard at. Crowns in Ontario tend to be assigned to specific courthouses for long periods of time. It is in the accused's favour for their counsel to deal with Crowns they feel will be most sympathetic to their case.

It is best for the accused to hire defence counsel immediately after receiving the Form 10 Undertaking. A newly charged accused could inadvertently make their case worse by presenting it the wrong way or dealing with the wrong person at the wrong time. You never want to find yourself behind the eight ball.

The Crown often will make notes in their file refusing your requests which may make it more difficult for counsel to effectively persuade them otherwise later. It is in your best interest to put your case on the right track from the start by hiring counsel to represent you from the start.

Getting the charges dropped or reduced down to something less serious

In all criminal cases the accused will have the opportunity to resolve their case. Sometimes the Crown will agree to drop (withdraw) the charges before trial. A deal may also be made to drop certain more serious charges or for a reduced sentence.

Domestic charges like any other offence are sometimes dropped because the Crown feels it is not in the public interest to proceed (often that the accused deserves a second chance) or that there is a lack of evidence (no reasonable prospect of conviction). For most first time accused, who have no criminal record, their primary concerns are avoiding jail and a criminal record. This is often possible in less serious cases where the accused is willing to do some out of court counselling and the alleged victim wants the charges dropped. The accused’s lawyer must try to convince the Crown the charges should be dropped or reduced.

Sometimes the accused will enter a peace bond as part of the deal in cases where the accused admits to doing something that made the alleged victim fearful. This is not in itself an acceptance of any criminal liability.

Once you receive the fingerprinting and court date you should take action and hire counsel immediately.

A newly charged accused must keep in mind that the end result of the case will be permanent and thus getting the best possible outcome is paramount.

When charges are first laid the accused will have far more options available to them. Deals that can be made right now may be not possible later on. You owe it to yourself to do everything you can to put yourself in the best possible position now while you still can.

Avoiding a domestic criminal record is important as a conviction can and/or will:

1. Show up on all forms of police background checks (regular and vulnerable sector)
2. Cause you to be disallowed from travelling to the U.S. and other countries
3. Be considered for deportation by IRCC for non Canadian citizens in the immigration system
4. Be considered conduct unbecoming by professional regulatory bodies (CNO, PEO, RECO, etc.)
5. Be reported online or otherwise
6. Be used against you in family court when determining child custody/access, spousal support, CAS applications, etc.

For a lot of accused the potential consequences upon conviction are substantial. When new charges are first laid, not only is the accused displaced from their home, they also face permanent future problems with employment, IRCC/immigration, and U.S. travel depending on the eventual case result.

Preparing for trial if the Crown refuses to drop the charges

While most cases resolve (via dropped or guilty plea), in some cases it is simply not possible. A court cannot accept a guilty plea from someone who continues to declare their innocence. If the Crown is unwilling to drop the charges, these cases will be set down for a trial. At trial the alleged victim and any other witnesses may be called to testify as to what happened. The accused may also wish to testify to tell their side of the story, but they do not have to.

The accused may also be in possession of exculpatory evidence (text messages, videos, etc.) that may help prove their innocence. This would not be part of the Crown disclosure if it was not part of the police investigation, but it can still be used at trial if the court allows it. Perhaps what happened was not an assault but a reasonable response in self defence. The process of uncovering the truth through a trial is long and stressful. While difficult, many innocent defendants have no other choice but to go through it. The court cannot accept a guilty plea from someone who claims to be innocent.

Even if the alleged victim or other third party witnesses do not want to testify the Crown can force them to via a subpoena. The accused’s defence lawyer will cross examine the Crown’s witnesses to try to uncover untruths, inconsistencies, and statements that raise a reasonable doubt as to the guilt of the accused. If the accused chooses to testify and denies doing anything criminal the judge must acquit if he accepts their testimony to be truthful. This legal precedent is found in the Supreme Court of Canada case of R. v. W.(D.), [1991] 1 S.C.R. 742 and is commonly cited by the defence.

The court will assess the credibility and reliability of all witnesses and other evidence at trial and find the accused either guilty or not guilty. If the accused is found guilty the case will proceed to sentencing. Normally the Crown will seek a harsher sentence for those found guilty after a trial. The courts also consider an early resolution to be a mitigating factor and therefore tend to sentence more harshly after finding guilt at trial.

Some criticize the way our justice system indirectly promotes resolutions and discourages trials by considering early resolutions as a mitigating factor. In theory those who are innocent will ultimately walk free but getting there is often a long and stressful road. Some defendants may not want to take the risk of losing at trial and having to go to jail versus resolving the case via a peace bond and withdrawn charges if possible.

Post charge destruction of fingerprints and removal of information from police databases

If the accused has their charges dropped (withdrawn), absolutely or conditionally discharged, or is ultimately found not guilty, they may be able to have their fingerprints and mugshot destroyed and their case information removed from the RCMP CPIC database. Each police force in Ontario has different policies regarding this as they are not legally required to destroy the fingerprints (but sometimes do so as a “courtesy”).

If the accused is found guilty and is subsequently sentenced to a fine, suspended sentence probation or jail/prison they will receive a criminal conviction record but may be able to apply for and receive a record suspension/pardon by application. Not all offences are eligible for a record suspension. The waiting period to apply will be a minimum of 5 or 10 years depending on if the Crown proceeds summarily or by indictment. If a record suspension is granted they then can apply for fingerprint destruction and data removal.

It is important to have all eligible charge data removed from CPIC and other police databases as soon as possible as it may cause delays in obtaining background checks, problems crossing the U.S. border, and issues with IRCC for those in the immigration system (students, work permit, PR).

If you or someone you are looking to help has been charged with a domestic violence offence in Ontario please give us a call today at 647-228-5969 for a free consultation.


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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