My wife told the police I hit her and they charged me with assault

All police forces in Ontario, Canada are under policies to criminally charge those in a domestic context when an allegation of an assault is made, no matter how minor. Sometimes arguments get heated and one party calls 911 thinking the police will show up and try to resolve the argument but in reality they are primarily looking to charge one or both parties once they arrive at the doorstep. The person charged will then be taken away in the police car and most likely later released via a Form 10 Undertaking or Form 11 Release Order with conditions to not communicate either directly or indirectly (through a 3rd party) with their spouse, and to not attend at the family residence.

Where will I live if I am not allowed to go home?

This all depends on the resources, connections, and wishes of the accused. Sometimes they will end up staying with a friend or relative. Others may stay in a hotel/motel. For those who lack money or do not have any local friends or family, they may end up staying in a shelter or even on the streets. It is an extremely difficult thing to be displaced from the home no matter what the situation is but for some it is much harder than others.

I signed an Undertaking that prevents me from going home, when and how can I get this changed?

This is not a quick process. The Police usually have at least 30 days before they are supposed to submit their paperwork to the Crown Attorney, but in many cases it takes much longer. The Crown will need to vet the disclosure and provide it to the defence. Perhaps an agreement can be reached to allow contact again, particularly if the case is going to resolve, but the Crown will also require input from the alleged victim saying that she wants to have contact again. Sometimes victims will create a supporting affidavit to help speed up this process.

If my wife does not want to testify against me how can I be convicted at trial? Can’t she just call the police or the Crown and drop the charges?

A wife/spouse can be subpoenaed (legally forced) to testify in a domestic violence case in Canada. While your wife may have changed her mind and now does not want you to be charged this is not her decision to make. It is up to the Crown Attorney. This being said, her input will always be taken into consideration by the Crown. The Crown generally prefers not to force people to testify but they certainly can and will in domestic cases.

How can my wife provide her input to the Crown? I want to go back home and be with my family.

The best way is to provide a supporting affidavit of non-prosecution. This is a legally sworn document that is provided directly to the Crown and your lawyer. The Crown will be more comfortable varying Undertakings or Release Orders if they have an affidavit in their file from the complainant/victim. This is the best way for you to come home as soon as possible.

If the court finds me guilty of assault what is going to happen to me?

Your case will proceed to a sentencing hearing at which point the judge will decide what the sentence will be. The maximum sentence for assault in Canada (s. 266 simple assault) is 5 years in prison. Non-jail sentences will normally include probation. Sometimes a discharge will be granted which is not technically considered a criminal record (conviction). In other cases, the accused may be able to work out a deal to have the charges withdrawn perhaps after signing an 810 or common law peace bond.

In most cases the accused’s lawyer will work out an agreement with the Crown well in advance of a case resolving. The vast majority of cases will resolve as the evidence may be overwhelming (confession, video, etc.) or the accused may not want to risk losing at trial. If an accused choses to plead not guilty and go to trial there is normally no agreement in place with the Crown Attorney as to sentencing.

The Crown will generally ask for a much harsher sentence if the accused is found guilty at trial. This could be the difference between a long or short jail sentence, a discharge or no discharge, or having the charges dropped or probation or possible jail. It is important for the accused’s lawyer to ensure that if an accused wants to resolve their case that they are getting a good deal from the Crown.

Not every domestic case will be able to be resolved without a trial.

In cases where the accused denies committing the crime, and the Crown refuses to withdraw the charges no matter what is presented to them, the only option the accused should plead not guilty and take the case to trial. Nobody should ever plead guilty to an offence they believe they are innocent of. A lawyer should not and cannot ethically plead a client guilty who says they are not guilty. A judge also cannot accept a guilty plea that they do not believe is voluntary and true. Everyone has a right to a trial and in some cases this is the only proper course of action.

Going to trial is always unpredictable. Sometimes cases will collapse on the trial date because the Crown changes their mind about going through with it on the day of trial. This could relate to a lack of witnesses being present, time constraints, or other problems. There is no guarantee though that this will happen. There is also no guarantee that a trial will result in the desired outcome for the accused.

Given the degree of risks, and the incentives that are often offered, the vast majority of cases in Ontario resolve without going to trial.

If my wife/spouse has left the country, died, or is physically incapable of testifying how can I be convicted?

It does not help the Crown’s case if your wife is unable to testify against you. This doesn’t mean they still cannot successfully prosecute and convict you though. The victim/complainant’s recorded statements to 911 may be used as evidence. They may have also given a sworn KGB statement from the police which can be used in court or a sworn audio statement if it is impossible for the Crown to force them to testify. Sometimes the accused themselves will have confessed or made incriminating statements to the police. This is why police ask questions of the accused once they arrive at the scene (often before pressing charges). Ultimately it will be up to the judge to decide what evidence will be admitted at trial.


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*2024 Results: the percentage of 99% of clients avoiding a criminal record (conviction) stated on this page is based solely on Lawyer Mark Zinck's personal representation of approximately 2000 criminal defence case clients as of the year 2024. Past results are not necessarily an indication of future results.

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