Domestic Assault

Domestic assault is a common criminal charge. While there is no specific crime of domestic assault in the Criminal Code, courts recognize violence in the home is a serious issue. It is considered an aggravating factor that a person assaulted a domestic partner, whether in the home or not. Being charged with domestic violence can also have an impact on whether a person is released on bail or not.

Misha represents individuals charged with domestic assault. He has achieved excellent results, including acquittals after trials but also has secured the withdrawal of charges, diversion or other favourable results in advance of a trial. Contact Misha if you have been charged with domestic assault or a related offence.

What is Domestic Assault?

While there is no specific crime of domestic assault, domestic assault is a common offence prosecuted in courthouses throughout Toronto. Domestic assault and related offences (assault causing bodily harm, assault with a weapon, aggravated assault, sexual assault) are often prosecuted by specialized prosecutors and having an experienced defence lawyer can help you navigate the system.

What is the Penalty for Domestic Assault? Is there Jail Time?

The maximum penalty for domestic assault is 5 years of jail time according to the Criminal Code of Canada.  There are a several other possible outcomes for criminal charge of assault, including probation, fines, and the possibility of having your charges withdrawn. Domestic assault allegations can also affect family law proceedings, child custody arrangements and immigration status. The penalty for domestic assault may be one thing but the consequences can be something else.

What happens if you're charged with Domestic Assault?

Anyone charged with domestic assault, has a right to counsel. The police must inform you of the reason for your arrest and must make reasonable efforts to assist you to speak with your counsel of choice. Typically, if you are brought to a police station, they will give you an opportunity to speak with your lawyer of choice in a private room.

Depending on the seriousness of the offence and the circumstances of the case, the police may release you from the station or may hold you for a bail hearing. If you are held for bail, they will advise you so that you may make arrangements to contact a lawyer and assist you in contacting your friends or family to act as sureties for your bail. You have a right to be brought before a Justice or Judge within a reasonable time but in any event within 24 hours of your arrest.

At your bail hearing, your lawyer and the Crown will argue about whether you should be released from custody and, if so, what reasonable terms of bail should be imposed. Any person charged with a crime has a right to a reasonable bail.

Contact Misha if a friend or family member has been charged with an offence, or if they are being held for bail.

Why shouldn't I just plead guilty to Domestic Assault?

Domestic assault convictions can carry with them significant effects, including effects related to family law proceedings and child custody and access, effects related to immigration status for non-citizens, and others. DNA orders, onerous probation orders, and other court orders are frequently issued as part of a sentence for domestic assault.

First Time Domestic Assault Charges

The criminal justice system often recognizes that people make mistakes. Some mistakes are bigger than others. People charged with offences, including Domestic Assault, for the first time are treated somewhat differently from people with long criminal records. Experienced counsel can assist in obtaining great results for first time domestic assault charges. This may include diversion before trial or favourable plea agreements. Contact our office to discuss your case and what to expect.

Domestic Assault Legislation

Section 265 of the Criminal Code Covers this Charge


  • 265 (1) A person commits an assault when
    • (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
    • (b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
    • (c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
  • Marginal note:
     This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
  • Marginal note:
     For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

    • (a) the application of force to the complainant or to a person other than the complainant;
    • (b) threats or fear of the application of force to the complainant or to a person other than the complainant;
    • (c) fraud; or
    • (d) the exercise of authority.
  • Marginal note:
    Accused’s belief as to consent
     Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.

Source: Criminal Code of Canada, section 265