Domestic Violence Charges: Typical Defences that Could Absolve You

Domestic violence spiked at the height of the COVID-19 years, with lockdowns being a primary cause. Economic pressures and fear of the disease fueled stresses that may have already existed, creating a “perfect storm” for increased violence.  Even as the lockdowns caused by the pandemic were lifted, the trend continues.  While Canada has one of the lowest rates of domestic violence (specifically, violence against women, or VaW) worldwide, recent reports state that 2022 marked the “seventh consecutive year of gradual increase” in domestic violence.

This is a troubling statistic, but sadly, this kind of violence is nothing new. Nor are false allegations, issues with mental illness, or even cases of mistaken identity when it comes to charges of domestic abuse where criminal harassment is alleged. A domestic violence charge is devastating and can affect your relationships with friends and family and have a negative impact on your job and standing in the community.

Table of Contents

1.UNDERSTANDING DOMESTIC VIOLENCE CHARGES

2.WHAT YOU SHOULD DO IF YOU HAVE BEEN CHARGED WITH ANY TYPE OF DOMESTIC VIOLENCE OFFENCE

3.TYPICAL DEFENCES IN DOMESTIC VIOLENCE CHARGES

4.A KNOWLEDGEABLE CALGARY DOMESTIC VIOLENCE LAWYER CAN HELP PROTECT YOUR REPUTATION, YOUR LIVELIHOOD, AND YOUR FREEDOM

Understanding domestic violence charges

Domestic violence is sometimes referred to as family violence. It is considered a subset of domestic abuse which is defined by Canadian law as ” any form of abuse, mistreatment or neglect that a child or adult experiences from a family member, or from someone with whom they have an intimate relationship.” Intimate relationships include “current or former spouse, common-law partner, and dating partner.” Moreover, this includes both heterosexual and same-sex intimate relationships.

Statistics show that the majority of intimate partner violence involved female victims and male assailants, and more than half of all police-reported domestic violence incidents occurred between former or current boyfriends and girlfriends. That being said, victims of domestic violence include men, women, children, and people from across the socio-economic spectrum.

Domestic violence types and charges may include:

• Assault: The law views assault as intentionally applying force “directly or indirectly”, without the consent of another person. It also includes the threat or attempt, “by an act or gesture,” that causes the other person to believe “on reasonable grounds” that he or she will be bodily harmed.
• Sexual assault: Sexual assault is essentially “any unwanted sexual act done by one person to another or sexual activity without one person’s consent or voluntary agreement.” When the sexual assault includes a threat of bodily harm, causes bodily harm, if a person is choked, strangled or suffocated, or if there is a weapon involved, the charge and the penalties are much more serious.
• Harassment/criminal harassment: When harassment causes a person to fear for their safety, such as stalking, it becomes a crime. Specifically, it is against the law to “repeatedly follow,” or stalk a person; to repeatedly communicate (either directly or indirectly); and/or to watch or “be-set” the dwelling or workplace “where a person or person known to them resides, works, carries on business, or happens to be” to the point where the person fears for their safety. This extends to threatening conduct directed at the person or their family members.
• Uttering threats: Whether there is intent to actually follow through with a threat or not, uttering a threat may be a punishable offence. This can include a spoken threat or one communicated through “tweets,” email, through social media or in writing. Law enforcement treats threats of physical violence very seriously.

What you should do if you have been charged with any type of domestic violence offence

Do not think for a minute that law enforcement will take a complaint of domestic violence lightly. In fact, they will take it with the utmost seriousness. Under no circumstances should you try to communicate or “reason with” your accuser, even if it’s your current or former spouse or longtime boyfriend or girlfriend—it may only make matters worse. And do not talk to the police without first getting skilled legal representation. As an experienced Calgary domestic violence charge lawyer, I can negotiate with the police and offer you sound guidance. Moreover, I know how to build a solid, strategic case to get you the best possible outcome.

Typical defences in domestic violence charges

The type of defence that is best for your case will largely depend on the charge. After an initial discussion of your case, we will look at the evidence, investigate the circumstances, and discuss your concerns. Types of defence strategies include:

• It didn’t happen: The burden is always on the prosecution to prove that you committed an offence of domestic violence. If they cannot prove the elements of the offence beyond a reasonable doubt in a court of law, you are entitled to an acquittal. If you testify that you did not do it and the judge believes and accepts your testimony, you are entitled to an acquittal. One common defence is a lack of intent such as where an alleged “assault” was accidental.
• Self-defence: You always have the right to defend yourself if you are being attacked, or have “reasonable grounds” to believe that “force is being used against (you) or another person or that a threat of force is being made against (you) or another person.” There are some subtleties, however. “Reasonable” takes into consideration not only how necessary the action of defence was, but also if it was proportional. Factors may include whether a weapon was involved, if there was an appreciable size difference between the parties, or whether one or the other was intoxicated.

Self-defence is applicable if and when:

• If you were being attacked
• If you had “reasonable grounds” to feel that you would be harmed
• If you were defending someone; i.e., a child
• If, in the act of self-defence, your actions were proportional to the acts of the aggressor

• Consent: This can be especially contentious as there can be a huge chasm between what one thought was agreed to and what was (or was not) agreed to between a complainant and the accused. In relation to sexual assault, consent is legally defined as “voluntary agreement of the complainant to engage in the sexual activity in question.” The law further states that no consent was obtained if the complainant was unconscious; incapable of consenting to the activity; was induced when the accused used (abused) a position of “trust, power, or authority”; or even if the complainant initially agreed to engage in a sexual activity and later “expresses, by words or conduct, a lack of agreement to continue to engage in the activity.”
• De Minimis Defence: In Latin, de minimis means “pertaining to trivial things.” De minimis non curat lex is Latin for “the law does not care for small things,” and as such, it may be a viable defence.

De minimis may apply if and when:

• An assault was merely trifling and incidental: For instance, the accused merely touched the complainant on the shoulder to get their attention.

There are limitations to this sort of defence, particularly as it applies to domestic violence charges, because of how the law views assault in these types of cases.

• False accusations/mistaken identity: Unfortunately, in cases of contentious divorces or volatile past or present intimate relationships, false accusations may be wielded like weapons by a vindictive partner. In fact, a false accusation is in and of itself a crime, and the person who makes one can face stiff penalties if found guilty. While it may seem unusual that mistaken identity happens in an Calgary domestic violence case, it can happen. One example may include that a complainant sees someone following them from a distance, and believes that it is you, the accused, because you are about the same height, weight, and age and have the same colour hair. This is especially possible if the complainant was in a panic or state of confusion at the time, or if it was dark at the time, or if the complainant has a visual impairment. In cases of false accusations or mistaken identity, it’s vital that your lawyer collects evidence and gets witness statements in order to build a strong defence.
• Mental health defence: In more serious cases such as domestic homicides, the so-called “insanity plea” is more than the stuff of television dramas. In Canada, a person accused of a crime may have a legitimate defence if their illness prevented them from understanding the nature, severity, or quality of their actions. Here are terms that are used in mental health defence:
  • “Mens rea” means that in order to prove guilt beyond a reasonable doubt, there must be evidence that the perpetrator understood and had the intention to commit a criminal act—in this case, a crime of domestic violence.
  • “Automatism” relates to the mental state of the accused; that he or she was unaware of the actions they were taking at the time of the illegal act. As an example, they were experiencing a night terror episode when they assaulted the complainant.

Under the law, “no person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.”

A knowledgeable Calgary domestic violence lawyer can help protect your reputation, your livelihood, and your freedom

Domestic violence charges should be taken seriously. To learn more about how we can help, please contact our office at (587) 968-6721 to schedule a free consultation to discuss your needs and concerns.