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Domestic Violence Lawyer in Québec
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It’s entirely possible for a person with no criminal record and who has never been the subject of a police investigation to face criminal charges for assault or uttering threats in a marital context.
When a dispute breaks out between a couple, police are often called to the home, and their role is to separate the two parties to avoid the continuation of criminal offences.
What are the police guidelines in the province of Québec?
In cases of relatively serious domestic violence, the directive of the various police forces is essentially to detain the individual and to make sure that they appear in court the next day.
As a result, this type of criminal charge can quickly jeopardize the couple, who often have young children.
At this point, during their client’s court appearance, the defence attorney must ensure that the accused is released on reasonable conditions in the aim of protecting the complainant and making sure that they’re safe.
The terms of the release must also protect the relationship of the accused with their children and their immediate family.
A criminal record of domestic violence can have a serious impact on the work and career plans of the accused. It’s essential that you’re represented by a lawyer with experience in domestic violence cases, even if the prosecution doesn’t request a prison sentence.
What to do if you’re arrested for domestic violence ?
Doyon Avocats strives to offer you the best possible result when it comes to domestic violence charges.
Practicing law with honour and integrity is one of our most fundamental values. We’re a law firm that offers our clients personalized service, and we guarantee the best defence, period. (See our recent successes.)
Some recent successes in relation to our domestic violence cases:
Overview and legal definition of criminal offences relating to domestic violence
1) Assault by application of force (Sec. 265 (1) a) CCC)
This is the most commonly used definition of assault: a person commits an assault when they use force on another person without their consent. The law doesn’t state any specific degree regarding the force in question. A simple touch with the hand may therefore amount to assault. The undesired touching of the breasts may therefore amount to sexual assault. The absence of the victim’s consent is a material element of the offence.
The application of force must be intentional. Consequently, although criminal negligence is an insufficient form of intent to constitute assault, a person may commit this offence through recklessness if they are aware that their behaviour risks causing the application of force to a person without their consent. It is therefore an offence of general intent; it’s not necessary that the accused had a particular goal to injure, maim, or humiliate the victim.
2) Attempts or threats to apply force (Sec. 265 (1) b) CCC)
A person commits assault if they attempt or threaten to use force. They must be able to act on this threat or at least lead the victim to reasonably believe that they are. The threat must be expressed through actions or gestures. It is not necessary that there be physical contact between the accused and the victim. Conversely, the fact that physical contact is produced does not exclude the application of this definition of assault. This is not a distinct crime, but a different definition of assault.
3) Brandishing a weapon (Sec. 265 (1) c) CCC)
Anyone who accosts or impedes another person or begs while carrying a weapon or an imitation thereof also commits assault. The weapon must be visible to the victim.
b) The offences
1) Simple assault (Sec. 266 CCC)
Assaults committed under one or several of the definitions contained in Section 265 (1) of the Code constitute a hybrid offence punishable by a sentence of five years if the charge is laid as an indictable offence.
2) Assault with a weapon (Sec. 267 a) CCC)
The act of carrying, using, or threatening to use a weapon while committing assault is punishable by a prison sentence of ten years or eighteen months, depending on the chosen prosecution method.
As we’ve already stated, the word “weapon” is defined as any object designed, used, or that a person intends to use to kill, injure, threaten, or intimidate the victim. Anyone who threatens to strike another person with any object (book, ashtray, trinket, staff, letter opener) therefore commits the offence of assault with a weapon. Simple assaults are included in this offence (Sec. 662 (1) CCC).
3) Assault causing bodily harm (Sec. 267 b) CCC)
This offence has the same objective seriousness as assault with a weapon. Here, this means causing bodily harm to a person while committing assault against them. The concept of bodily harm is defined in Section 2 of the Code. A bruise or redness that disappears within a few hours does not constitute bodily harm. However, several bruises or contusions that cause pain to the victim for a few days or that limit them in their activities probably constitute bodily harm, since they are neither fleeting nor insignificant. Neck marks inflicted by the accused, who forced the victim to drink alcohol, may be considered bodily harm. Note that psychological injuries may also be judged as such.
Assault causing bodily harm is an offence of general intent. Bodily harm must be a factual consequence of the assault. In other words, it’s not necessary to prove that the accused intended to inflict bodily harm. However, the prosecution must demonstrate an objective predictability of such harm. That is to say that a person will be acquitted of this offence if there is any doubt about the fact that a reasonable person would have been able to predict that their assault would cause harm. However, they will be found guilty of the included offence of simple assault if the judge remains convinced that they intentionally used force against the victim without their consent.
4) Aggravated assault (Sec. 268 CCC)
Anyone who wounds, maims, disfigures, or endangers the life of someone commits aggravated assault. It is a criminal offence punishable by imprisonment for up to 14 years. This type of crime generally carries a long prison sentence to demonstrate society’s disapproval of violent crimes against the person and to send a clear message of deterrence. The concepts of intent and causal link are identical to those of assault causing bodily harm. That is to say that, although this crime requires a more serious consequence than cases of assault causing bodily harm, evidence of the objective predictability of bodily harm is sufficient to prove the intent of the accused with regard to the repercussions of their action.
These two offences differ with respect to the injuries caused to the victim. The Criminal Code does not define the words “wound,” “maim,” or “disfigure”; they must therefore take on their common meaning. Logically, they should be more severe in nature than bodily harm.
5) Unlawfully causing bodily harm (Sec. 269 CCC)
This offence is very similar to assault causing bodily harm. The only distinction lies in the act that caused the harm. The offence described in Section 267 b) CCC involves assault according to the definition provided in Section 265 (1) of the Code. Here, however, the underlying behaviour may be any unlawful act.
The law doesn’t specify whether the unlawful act must be criminal. In any event, the Supreme Court has established that the unlawful act, whether criminal or not, must not involve absolute liability and must be objectively dangerous. A causal link between the act and the consequence is necessary, as is an objective predictability of bodily harm.
6) Assaulting a peace officer (Sec. 270, 270.01, and 270.02 CCC)
Section 270 defines a simple assault offence dedicated to a specific category of victims: peace officers and public officials. All our remarks regarding Section 265 of the Code therefore also apply to this offence.
Peace officers are defined in Section 2 of the Code. These include mayors and other municipal officials, federal and provincial correctional officers, police officers, bailiffs, customs officers, fishery officers, aircraft commanders, and officers and members of the Canadian Forces.
For Section 270 CCC to apply, the peace officers must be performing their duties. There is no legal text that exhaustively outlines all their powers and duties. However, the Criminal Code describes some of them. Sections 25 to 31 and 495 of the Code outline some powers of arrest without a warrant, while Section 487 CCC deals with searches, raids, and seizures. However, the powers of peace officers are not limited to the actions that they perform during a criminal investigation. Indeed, besides the powers specifically granted to them by law, it is generally their responsibility to ensure the public peace; they possess reasonable powers to do so.
The Supreme Court has developed a two-step analysis to determine whether a police officer was in the performance of their duties. The court should first evaluate whether the actions of the police officer fall within the general sphere of the responsibilities that the law or common law confers on them. If they do, the court must decide whether these actions were justified under the circumstances. Among other things, it must examine whether the power was exercised on reasonable grounds. The arbitrary exercise of power goes against the legal guarantees provided by the Canadian Charter of Rights and Freedoms.
A peace officer who is not acting within the powers attributed to them by the law or common law is going beyond their duties, and a person who assaults them – while resisting arrest, for example – will be acquitted of the charge of assaulting a peace officer.
This offence may also be committed against a person who is not a peace officer – for example, an ordinary citizen who is assisting a police officer.
In addition, since October 2nd, 2009, whoever, while committing an assault within the meaning of Section 270, carries, uses, or threatens to use a weapon or an imitation thereof or inflicts bodily harm on the complainant, commits a crime punishable by a sentence of ten years in case of prosecution by indictment (Sec. 270.01).
Likewise, anyone who, while contravening Section 270, wounds, maims, or disfigures a complainant or endangers their life, is guilty of an offence punishable by a sentence of 14 years (Sec. 270.02 CCC).
A DNA sample is mandatory following conviction for either of these two new offences.
These are therefore similar offences to those defined in Sections 267 et 268 CCC, involving identical penalties, but where the complainant is a peace officer or a public official in the performance of their duties. The legislator thus probably wanted to emphasize the singular seriousness of attacking these representatives of the State. Furthermore, it’s stated in Section 718.02 CCC that a court imposing a penalty for one of these offences defined in Section 270, 270.01, or 270.02 shall pay special attention to the objectives of denunciation and deterrence of the act behind this offence.
c) Specific defences
Let’s recall that a material element of assault is the absence of the victim’s consent to the application of force. Section 265 (3) CCC specifies that the submission of the victim or the absence of their resistance does not permit one to conclude that they have consented to the act if it comes from threats, a fear of the use of force, or the use of force towards them or another person, or if it results from fraud or the exercise of authority on the part of the accused. This exercise of authority doesn’t necessarily imply sufficient authority to impose obedience, but rather the existence of a particular relationship that provides a person with the ability to control another.
2) Error on consent
As we’ve seen, not only must the victim not have consented to the application of force, but the accused must know that they did not consent. Common law provides a specific defence regarding this knowledge: the error on consent defence. This can be defined as the sincere but mistaken – even unreasonable – belief that the complainant consented. Since this defence is particularly relevant to sexual assault cases, we’ll discuss it in more depth in that part of the study.
3) Lawful correction (Sec. 43 CCC)
This section allows certain people, including parents and teachers, to commit assault as a means of discipline. The force applied must not exceed a reasonable extent. This reasonable force is evaluated both objectively and subjectively. The force that the parent believed that they had to use under the circumstances and that which a reasonable person would have used must therefore coincide. The term “child” denotes a minor and a “pupil” is a child who is receiving instruction. A “child” therefore does not include an adult with a mental age equivalent to that of a minor.
Let’s also point out that the Court of Appeal determined that the trial court had committed an error of law by holding that, at the end of the ‘70s, people were less sensitized than today to the problem of domestic violence and therefore less likely to denounce it, especially since the Supreme Court had not yet ruled on the guidelines of a parent’s right to correction. Such remarks are not judicial knowledge.
Except for the role that it plays in self-defence (Sec. 34 to 37 CCC), provocation is never a defence for assault. It may, however, act as a mitigating factor in sentencing. Later, we will also its relevance with regard to homicide (Sec. 232 CCC).