Charged with Sexual Assault?
Tell Us Your Side… We Handle It
Kruse Law Hero Image
Free consultationWatch with audio
Free Consultation
If you have been charged with sexual assault or domestic assault in Toronto we can help. You are probably wondering how you can make this all go away and you need answers fast. Fill in this form to request a free confidential consultation. You can also call us toll-free at 1-800-699-0806 or e-mail us at defence@kruselaw.ca.

Domestic Assault FAQ

  1.  Will I lose my job just because I was charged?
  2.  Will I lose my job if I am convicted of a domestic assault?
  3.  Will the crown withdraw my domestic assault charge if my spouse or significant other requests that the charge be withdrawn?
  4.  What happens if my partner does not attend the trial when they have been served with a subpoena or refuses to testify at trial?
  5.  How long will the court process take in a domestic assault prosecution?
  6.  What is the PAR program? How many PAR counselling sessions will I be required to take? How much does it cost?
  7.  Can I travel the United States if I have been convicted of a domestic assault charge? What about other countries?
  8.  Can I contact my partner in any way after I have been charged with domestic assault?
  9.  How long will the court process take in a domestic assault prosecution?
  10.  I have been charged with domestic assault and am under a condition not to contact my partner directly or indirectly. However my partner keeps contacting me. What should I do?
  11.  I have heard that a peace bond is sometimes the result in a domestic assault case. What is a peace bond? What are the consequences of entering into a peace bond?
  12.  I have heard that a conditional discharge is sometimes the result in domestic assault cases. What is a conditional discharge? What are the consequences?

Answers

  1.  Will I lose my job just because I was charged?
  A.  It is doubtful that most employers would fire or lay off an employee if they are merely charged with a domestic assault and have not been convicted as yet. Perhaps a very high profile media person in the public eye for example, with a morals’ clause in their employment contract might face some repercussions while the matter is pending before the court such as a reassignment or suspension. However, it would seem even in this situation, the employer would tend to error on the side of caution and wait to see the outcome of the trial before making a final decision whether to rely on any morals’ clause to fire or lay off the employee.
Back to the question list 
  2.  Will I lose my job if I am convicted of a domestic assault?
  A.  The answer to this question will depend on the nature of your job and the terms of your employment contract and whether it is a minor or serious domestic assault occasioning bodily harm. For example, a person with a high profile job (for example, a person in the media or public eye) with a morals’ clause written into their contract might wind up being fired or possibly laid off with a severance package from the employer to avoid a wrongful dismissal law suit. However, most employers in most industries or professions would tend not to fire a person or lay them off based on a one time minor domestic assault conviction. Otherwise, the employer might find themselves facing a wrongful dismissal law suit.
    Every employee/employer relationship is a unique set of circumstances which would have to be analyzed by an employment and labor law lawyer in order to provide an answer to how a domestic assault may affect your current employment. However, it is clear that if you are convicted of a domestic assault and you are looking for a job, most employers will do criminal record checks and a conviction will affect your future employment prospects.
Back to the question list 
  3.  Will the crown withdraw my domestic assault charge if my spouse or significant other requests that the charge be withdrawn?
  A.  Once a domestic assault charge has been laid, the complainant or alleged victim basically has no say in how the matter is prosecuted. Even if the complainant attends the crown’s office or writes a letter to the crown indicating that they love their spouse, they want to get back together and they want the charge withdrawn, the crown attorney’s office will generally not withdraw the charges.
    The crown is completely in charge of prosecuting all criminal charges, including domestic assault related matters and will generally not listen to an alleged victim unless there is no reasonable prospect of conviction. In this regard, the crown is required to follow directives and policies from the Ministry of the Attorney General. One of these directives is that in a domestic assault prosecution the matter will proceed to trial unless there is no reasonable prospect of conviction. This is a very firm policy which is followed across the province and there are generally no exceptions made for any individual case. Even when there is no reasonable prospect of conviction, the Crown will often error on the side of caution and proceed with a domestic assault prosecution despite the fact that the complainant has specifically requested that the charges be withdrawn. In this situation, unless the accused pleads guilty, the matter will proceed to trial and the complainant will be subpoenaed and forced to testify.
Back to the question list 
  4.  What happens if my partner does not attend the trial when they have been served with a subpoena or refuses to testify at trial?
  A.  An alleged victim of a domestic assault will be subpoenaed by the crown attorney’s office to attend the trial. If the complainant fails to attend the trial in response to his or her subpoena, the crown can ask for a warrant for their arrest and they may have to spend time in custody pending a decision by a judge whether they should be released and on what terms. A new trial date will then be set and the complainant will again be subpoenaed to attend the trial and be required to give evidence against the accused.
     If the complainant attends the trial pursuant to a subpoena and refuses to testify, they will likely be held in contempt of court and possibly serve time in jail unless and until they agree to testify. The trial date will likely be adjourned to a future date and the complainant will again be subpoenaed to attend the trial which absolutely requires them to testify on the witness stand.
Back to the question list 
  5.  How long will the court process take in a domestic assault prosecution?
  A.  The crown attorney will generally elect summarily in a domestic assault prosecution. This means the case will be prosecuted in the Ontario Court of Justice and the accused does not have a right to a preliminary hearing or trial in the Superior Court of Justice. It is assumed below that the crown has elected summarily. If the crown elects by indictment and the accused elects to have a preliminary hearing and a judge and jury trial or a judge alone trial in the Superior Court of Justice, the time period from the date of arrest to the completion of the accused’s trial in the Superior Court of Justice, will be much longer than the time periods set out below.
    The first appearance in court for a domestic assault charge is generally set approximately 3-6 weeks after the accused’s arrest depending upon which county or court house is handling the matter. Typically there are 2-3 months of court appearance in ‘remand court’ where the accused’s lawyer is receiving all of the disclosure from the crown attorney (i.e. the complete police investigation, witness statements, video statements, 911 tapes, medical records, crime scene photographs etc.) meeting with the client and entering into discussions with the crown attorney regarding resolving the case or discussing the trial issues. The accused is generally not required to attend with their lawyer in remand court.
    After the accused’s lawyer reviews the disclosure and for example, the Crown has a strong case which does not appear to be defendable, an accused might give their lawyer instructions that they wish to plead guilty. The lawyer will then attempt to negotiate the best possible sentence with the crown. The lawyer will then set up a judicial pre-trial (i.e. a meeting with the crown and judge to discuss all aspects of the case and the client’s background) to attempt to convince the judge to agree to the lightest possible sentence.
    Depending upon how busy the courts are in a particular county or courthouses, it might be possible to set up a judicial pretrial within 2 months after the first appearance. Therefore the accused might be in a position to plead guilty and be sentenced in front of a judge at some point during the 2 to 3 remand period. An accused could plead guilty earlier than 2 -3 months after their arrest if they decided not to have a judicial pre-trial. However, it is generally advisable to have a judicial pretrial to make sure that the judge is agreeable to a particular sentence or joint submission which has been negotiated with the crown or to attempt to convince the judge to impose a lesser sentence than the crown is asking for.
    If the accused wishes to have a trial (for example, their lawyer has advised them that they have a viable defence and they have a potentially winnable case) typically at the end of the 2 to 3 months of remand appearances, an “administrative” judicial pre-trial will be set. An administrative judicial pre-trial is a meeting held in a judge’s chambers with a judge, the crown attorney and the defence lawyer. The judge who conducts a judicial pretrial will not be the trial judge.
    All aspects of the case are discussed with a judge at the administrative judicial pre-trial including estimating the length of the trial, discussing legal and factual issues and to see if there is any way of resolving the case without having a trial. Once the judicial pre-trial is completed, the defence lawyer is in a position to set the matter for trial. Depending upon how busy a particular county and courthouse is, the trial date will be set anywhere from 6-12 months after the judicial pre-trial has been completed.
    Some courthouses and counties have serious delay problems where the courts are completely booked for up to a year or more down the road. It is not unusual in certain counties that a defence lawyer will ask for the earliest possible trial date and that trial date might not be set for at least 12 months after the judicial pre-trial has been completed because there are simply no courts or judges available to try the case. In some smaller counties, it might be possible to set a trial 6 months after the judicial pretrial as that particular courthouse or county does not have a trial delay problem.

However, typically a domestic assault case that proceeds to a 1 or 2 day trial will be completed in busier courthouses in Ontario approximately 12-15 months after the date of the arrest. Unfortunately, it is a long process and most court houses, especially in the GTA, are very booked with other trials and there is lack of resources. There are simply not enough courtrooms or judges to manage the trial workload in a timely fashion. There is basically nothing that an accused can do to speed up the trial process other than having their defence lawyer ask the court to set the earliest possible trial date.

Under s. 11(b) of the Canadian Charter of Rights and Freedoms, any person charged with an offence has the right to be tried within a reasonable time. Occasionally a charge may be stayed (similar to a withdrawal of the charges) under s. 11(b) of the Charter if the trial date is set too far in the future.

Back to the question list 
  6.  What is the PAR program? How many PAR counselling sessions will I be required to take? How much does it cost?
  A.  The Partner Assault Response Program (PAR) is a court mandated 12 week domestic violence/abuse counseling course that many offenders are ordered to take by the courts. If an offender pleads guilty to domestic assault or is found guilty after trial, a judge will often place the accused on probation and make an order that they have to complete the 12 week PAR program. The PAR counselling sessions take place once a week and each session is two hours long. Fees are paid on a sliding scale depending upon your income. Each jurisdiction has different fees, but in Toronto for example, you can expect to pay $350 to $750 depending upon the courthouse which is handling your case.
    The primary objectives of the PAR program are to educate the offender about domestic violence and abuse, provide the accused with non-violent skills and strategies to participate in healthy relationships and reduce the probability of the accused re-offending by making them aware of the triggers that lead to their violent behaviour.
    The program provides the accused with counseling and education primarily designed to help them engage in healthy and non-violent relationships with their spouse. The offender must accept that their conduct has caused harm and fear to their partner and they are provided with strategies to change their behaviour. The PAR programs is designed to increase victim safety and make offenders accountable for their actions and help them change their beliefs and attitudes about domestic violence.
Back to the question list 
  7.  Can I travel the United States if I have been convicted of a domestic assault charge? What about other countries?
  A.  United States border/immigration law sets out 2 broad categories of offences to determine admissibility to the United States. If you have been convicted of a crime in Canada involving “moral turpitude”, such as sexual assault, drug trafficking or other serious crimes, you will not be admissible at the United States border. A summary conviction domestic assault conviction is not considered to be a crime of moral turpitude at the United States’ border. A person who has one prior conviction for domestic assault in Canada should be allowed to enter the United States.
    However, border guards occasionally make mistakes and will occasionally refuse a person entry who only has a conviction for domestic assault. Also, there have been many situations where a Canadian has been refused entry at the United States border because they could not establish the exact nature of their conviction to the satisfaction of the border guard.
    The burden of proving the nature of the conviction is on the person entering the United States border. Therefore it may be advisable to carry proof of the exact nature of your domestic assault conviction such as a certified copy of the court information showing you were convicted of a summary conviction domestic assault charge under section 266 of the Criminal Code. In other words, there is the ‘law at the border’ which states you should be able enter the United States, but there is also the particular border guard you are facing who may either not know the law or not be in a good mood to follow the law if you do not have valid proof of the exact nature of your conviction.
    You should not rely on the records which the border officers have to help you establish admissibility as the records may not exist or they may not be accurate. If you are wrongfully refused entry at the border, you should consult with an immigration lawyer who has experience in this area. The immigration lawyer may advise you that you are able to return to the port of entry and prove that you are admissible by providing proper documentation and paperwork.
    Is very important to truthfully answer all questions that are posed to you at the United States border. If you lie or are misleading regarding anything to do with your prior arrest or conviction, the border guard has grounds for refusing entry. You need to carefully listen to the questions and answer them honestly and completely. It does not appear that any other countries in North America, South America or Europe will bar entry to a Canadian who has one prior domestic assault conviction on their record. However, you should consult with an immigration lawyers as to the current state of the law in this regard as immigration law in any given country is constantly changing.
Back to the question list 
  8.  Can I contact my partner in any way after I have been charged with domestic assault?
  A.  When a person is charged with first time domestic assault, they will typically be released on either an officer in charge undertaking or by a justice of the peace on a recognizance. The police or the court will impose strict terms that the accused must follow while he or she is out on bail. These terms will include that the accused is not to communicate directly or indirectly or associate with her partner in any fashion and not to attend at his or her residence or place of employment. Sometimes there is also a term that the accused may not be within a certain distance from the complainant at any time. If the accused breaches any of these conditions, they can be arrested and charged with a breach of undertaking or recognizance and they could be subject to a jail term. Their bail could also revoked and they may have to remain in jail until they either plead guilty or complete their trial on the domestic assault charge.
    If you need to contact your partner for things such as maintenance of your home, care of your pets visitation with children etc. you should consult with your lawyer to see if the terms of your bail allow for third party communication to address any of these issues. Sometimes the terms of your undertaking or recognizance may allow for third party communication, for example, to arrange visitation with your children. However, usually they do not and you should not have a third party contact with your partner as the communication may be construed as indirect communication by yourself which is a criminal offence.
    Your lawyer may be able to negotiate with the crown attorney to vary the terms of your bail to allow for third party communication to make arrangements for visitation of your children or other issues which need to be discussed with your spouse. For example, your defence lawyer might request to vary your bail conditions as follows: “No contact directly or indirectly with the complainant except through a mutually agreeable third-party or pursuant to a Family Court order and only for purposes of arranging and facilitating child access.”
    It would be dangerous to attempt to have third-party communications with your spouse without a full discussion with your lawyer as to whether any third party communication breaches the terms of your bail.
    The bottom line is you should not personally communicate or associate with your partner in any fashion while your matter is before the courts. This would include in person contact, phone calls, email, text and Facebook communication. Depending upon the exact terms set out in your undertaking or recognizance, third party communication may also not be allowed.
Back to the question list 
  9.  How long will the court process take in a domestic assault prosecution?
  A.  The crown attorney will generally elect summarily in a domestic assault prosecution. This means the case will be prosecuted in the Ontario Court of Justice and the accused does not have a right to a preliminary hearing or trial in the Superior Court of Justice. It is assumed below that the crown has elected summarily. If the crown elects by indictment and the accused elects to have a preliminary hearing and then a judge and jury trial or a judge alone trial in the Superior Court of Justice, the time period from the date of arrest to the completion of the accused’s trial in the Superior Court of Justice, will be much longer than the time periods set out below.
    The first appearance in court for a domestic assault charge is generally set approximately 3-6 weeks after the accused’s arrest depending upon which county or court house is handling the matter. Typically there are 2-3 months of court appearance in ‘remand court’ where the accused’s lawyer is receiving all of the disclosure from the crown attorney (i.e. the complete police investigation, witness statements, video statements, 911 tapes, medical records, crime scene photographs etc.) meeting with the client and entering into discussions with the crown attorney regarding resolving the case or discussing the trial issues. The accused is generally not required to attend with their lawyer in remand court.
    After the accused’s lawyer reviews the disclosure and for example, the Crown has a strong case which does not appear to be defendable, an accused might give their lawyer instructions that they wish to plead guilty. The lawyer will then attempt to negotiate the best possible sentence with the crown. The lawyer will then set up a judicial pre-trial (i.e. a meeting with the crown and judge to discuss all aspects of the case and the client’s background) to attempt to convince the judge to agree to the lightest sentence possible.
    Depending upon how busy the courts are in a particular county or courthouses, it might be possible to set up a judicial pre-trial within 2 months after the first appearance. Therefore the accused might be in a position to plead guilty and be sentenced in front of a judge at some point during this 2 to 3 remand period. An accused could plead guilty earlier than 2 -3 months after their arrest if they decided not to have a judicial pre-trial. However, it is generally advisable to have a judicial pre-trial to make sure that the judge is agreeable to a particular sentence or joint submission which has been negotiated with the crown or to attempt to convince the judge to impose a lesser sentence than the crown is asking for.
    If the accused wishes to have a trial (for example, their lawyer has advised them that they have a viable defence and they have a potentially winnable case) typically at the end of the 2 to 3 months of remand appearances, an “administrative” judicial pre-trial will be set. An administrative judicial pre-trial is a meeting held in a judge’s chambers with a judge, the crown attorney and the defence lawyer. The judge who conducts a judicial pre-trial will not be the trial judge.
    All aspects of the case are discussed with a judge at the administrative judicial pre-trial including estimating the length of the trial, discussing legal and factual issues and to see if there is any way of resolving the case without having a trial. Once the judicial pre-trial is completed, the defence lawyer is in a position to set the matter for trial. Depending upon how busy a particular county and courthouse is, the trial date will be set anywhere from 6-12 months after the judicial pre-trial has been completed.
    Some courthouses and counties have serious delay problems where the courts are completely booked for up to a year or more down the road. It is not unusual in certain counties that a defence lawyer will ask for the earliest possible trial date and that trial date might not be set for at least 12 months after the judicial pre-trial has been completed because there are simply no courts or judges available to try the case. In some smaller counties, it might be possible to set a trial 6 months after the judicial pre-trial as that particular courthouse or county does not have a trial delay problem.

However, typically a domestic assault case that proceeds to a 1 or 2 day trial will be completed in busier courthouses in Ontario approximately 12-15 months after the date of the arrest. Unfortunately, it is a long process and most court houses, especially in the GTA, are very booked with other trials and there is lack of resources. There are simply not enough courtrooms or judges to manage the trial workload in a timely fashion. There is basically nothing the accused can do to speed up the trial process other than having their defence lawyer ask the court to set the earliest possible trial date.

Under s. 11(b) of the Canadian Charter of Rights and Freedoms, any person charged with an offence has the right to be tried within a reasonable time. Occasionally a charge may be stayed (similar to a withdrawal of the charges) under s. 11(b) of the Charter if the trial date is set too far in the future.

Back to the question list 
  10.  I have been charged with domestic assault and am under a condition not to contact my partner directly or indirectly. However my partner keeps contacting me. What should I do?
  A.  This is a tricky situation which happens often in domestic assault matters. If your partner contacts you and you speak to him or her in any fashion, you are breaching the terms of your bail and you can be charged with a breach of recognizance or breach of undertaking. If your partner calls you or speaks to you while you are subject to a no contact bail order, you should not say anything to them. Hang up the phone or walk away from them. Do not respond to any texts, emails or Facebook messages from your partner, but keep the messages as they may be useful in court.
    The best advice in this situation is to immediately report the contact to the police. However, if you do not report it initially (as some people may be concerned about getting their partner in trouble), if she or he persists in attempting to contact you, then you have no choice but to report this to the police. You should advise the police that your partner has contacted you and you want them to stop contacting you immediately.
    Typically in the situation, the police will probably issue a warning to your partner not to contact you. The police will understandably be reluctant to lay a charge against your partner without first issuing them a warning. They will also further warn them that if they persist in continuing to attempt to contact you, they will charge him or her with facilitating a breach which is a serious criminal offence.
Back to the question list 
  11.  I have heard that a peace bond is sometimes the result in a domestic assault case. What is a peace bond? What are the consequences of entering into a peace bond?
  A.  If the crown attorney perceives that they have a very weak case and it is a very minor domestic assault such as a push or slap to the face which resulted in no injuries, very rarely they may allow the accused to enter into a peace bond under s.810 of the Criminal Code or a common law peace bond (which is effectively the same thing as a s. 810 peace bond). The crown will then withdraw the domestic assault charge. However, even if the case against an accused is very weak and it is a minor assault, the crown rarely makes a peace bond offer and will often force the matter on to trial.
    A peace bond is in order by the court that the defendant enter into a recognizance, with or without sureties, to keep the peace and be of good behavior and with other terms and conditions for a period of not more than 12 months. A peace bond does not result in a criminal record. A surety is a friend or relative who is willing to vouch for the accused that they will follow the terms of the peace bond and is willing to forfeit a sum of money (typically $500-$1500 dollars) if the accused does not follow the terms of the peace bond. Most peace bonds in Ontario do not require sureties, but the accused is required to forfeit the same sum of money under the terms of the recognizance if they do not follow the terms of the peace bond.
    In order for a judge to make an order for a peace bond, they must be satisfied that the complainant has fear on reasonable grounds that the accused will cause personal injury to him or her or damage their property. The accused must agree to certain facts which are read into the record which will support the complainant’s reasonable fears. The facts that are read into the record are typically negotiated with the crown. A good lawyer will try and negotiate facts which do not admit there was an assault or criminal offence, but still lead to the conclusion that the complainant has fear on reasonable grounds.
    Some of the terms attached to peace bonds include to keep the peace and be of good behaviour and not to associate or communicate with the complainant or attend at their residence or place of employment.
    If an accused fails to comply with the terms of a peace bond, for example by communicating with the complainant, they can be prosecuted under s. 811 of the Criminal Code for breach of a recognizance and in addition to forfeiting the money they pledged in the peace bond, they may face a jail term.
    On its face, a peace bond may seem to be a good resolution for a person who is charged with domestic assault. However, the peace bond may be on a police computer forever and it could affect travel and future job prospects. The fact that a person has entered into a peace bond will not show up on a criminal record check, but it will show up on a police record check or vulnerable persons background check. This has prevented many people in Canada from proceeding with their careers and finding employment and has been a recent topic of controversy in the media due to the unfairness caused by police record background checks. Before someone enters into a peace bond, they should consult with an experienced criminal lawyer in regard to all of the possible consequences and repercussions. Given the fact that the crown basically only offers a peace bond when they have no reasonable prospect of winning at trial, it begs the question as to why a person would enter into a peace bond that could affect their future. However, in some circumstances it may be advisable for an accused to enter into a peace bond if the crown makes the offer.
     Another negative consequence of a peace bond is that a complainant can simply call the police and have the person arrested and charged with a criminal offence if the accused contacts them. Further, if the complainant initially made a false domestic assault allegation and the accused enters into a peace bond, it may encourage the complainant to seek further false retribution by making further false complaints resulting in ongoing arrests and charges. This is not an uncommon situation in Ontario and many people have regretted entering peace bonds when they could have easily won their domestic assault trial.

Every situation is different and it is important to seek proper legal advice before entering into a peace bond.

Back to the question list 
  12.  I have heard that a conditional discharge is sometimes the result in domestic assault cases. What is a conditional discharge? What are the consequences?
  A.  If a person has no prior criminal record and they have been charged with a relatively minor domestic assault resulting in no injuries and the accused intends to plead guilty or is found guilty after trial, a judge will often sentence the person to a “conditional discharge.” A conditional discharge is more difficult to obtain if the victim received injuries, but it is not unheard of.
    Under s. 730 of the Criminal Code if an accused pleads guilty or is found guilty of domestic assault, the court may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely (i.e. an absolute discharge) or on conditions prescribed in a probation order (i.e. a conditional discharge). An absolute discharge (i.e. where there are no probation terms) is generally not possible in a domestic assault prosecution.
    In other words a conditional discharge is a finding of guilt, but the accused is not convicted by the court and does not receive a criminal record. They are placed on probation for a period time which is typically 12 months or more and they are required to comply with certain conditions which are set out in the probation order.
    The conditions can include to report to a probation officer during the period of the probation order, keep the peace and be of good behavior, not to associate or communicate with the complainant or attend at their residence or place of employment, not to possess any guns weapons and to complete a course of counselling. If the complainant wishes to resume their relationship with the accused, the court may impose a revocable consent. This means that the complainant signs a document indicating that they wish to associate and communicate with the accused. However, the complainant can revoke their consent at any time during the period of probation. Sometimes a probation office may not allow an accused to communicate or associate with the complainant despite the wishes of the complainant, until they have completed part or all of their counselling. If the crown has a strong case against an accused and the accused lawyer does not believe they can win at trial, a negotiated plea for a conditional discharge is often a great result. It may also be a good result after trial if the accused is found guilty. The bottom line is if the judge sentences an accused to a conditional discharge and they comply with all the terms of his or her probation order, they will not receive a criminal record.
    A conditional discharge can still have negative consequences for employment and travel. For example, the United States border does not recognize that a conditional discharge is not a criminal record. Someone who has been convicted of domestic assault is technically able to travel the United States because it is not a crime of moral turpitude, but border guards can and do make mistakes and mistakenly refuse entry into the United States occasionally.
    A conditional discharge should not technically show up on a criminal record check. However, it will show up on the CPIC police computer. Further, if a prospective employer asks for a police record check (which is different and contains much wider information than a criminal record check), or there is a vulnerable person background check requested, the person’s conditional discharge may be revealed to the employer or organization requesting these checks. Therefore, a conditional discharge could affect a person’s current or future employment prospects if an employer is astute enough to request a police record check or if the person is looking to volunteer in their community to coach children, for example. However, a person who has received a conditional discharge can truthfully say to their employer or a volunteer organization that they do not have a criminal record.
Back to the question list