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Domestic Assault and Uttering Threats Charges

It is extremely easy to be charged with a domestic crime in Toronto. Common domestic related charges include assault, uttering threats to person, uttering threats to property, mischief, and breaches of undertaking.

Domestic Charges after Spouse Calls the Police

Some people are surprised to learn how easily and commonly domestic assault or threats charges are laid after a spouse calls the police. Many people wind up facing criminal charges because they get in an argument with their girlfriend, boyfriend, husband, or wife, and one of them decides to pick up the phone and call 911. Once that phone call is made, at least one party will likely end up being charged.

In most provinces, the police have very little discretion over domestic matters and are required to press charges in virtually all cases of domestic assaults/threats regardless of how minor the facts may be. Domestic related charges make up the majority of criminal court cases in Canada.Everyday, hundreds of Canadians get charged with assaults or threats because of a domestic incident that would have been no big deal anyway.

Any unwanted contact that is reported to police in domestic incidents can result in charges. Maybe a wife lightly pushes her husband causing no pain or injury. If reported to police, she'll likely be charged with assault. Maybe a husband, in the heat of the moment, states he's going to break his wife's cell phone. If reported to police, he'll likely be charged with uttering a threat to damage property. It's truly that easy to be charged for relatively harmless things (and it happens all the time).

What happens when police are called for domestic incidents?

The first thing that usually happens is the police will show up at the door and separate both parties. They will then question both parties individually taking notes of all statements that are made.

At this stage, the parties are usually unaware of the tremendous consequences that will result in talking to the police. Many times the wife or husband talks to the police because they expect them to scare some sense in their spouse, or to mediate the matter. Instead, these statements will result in their spouse being arrested and charged.

It should be noted that while many spouses are under the impression that they have the power to have the charges dropped at a later date, in reality they do not. Charges normally go forward even if the spouse requests that they be dropped.

Arrested for a domestic incident

If charges are laid, the police will handcuff and arrest the person they are charging and then transport them to the police station.

At the station, the police have the discretion to either release the accused with an undertaking and/or notice to appear in court, or to hold them for a court appearance. Many times, individuals are held for a court appearance because the police do not want to shoulder the responsibility of releasing the person themselves. If the police release the person without a court appearance, and the person commits a further crime, it could be seen as improper police conduct. As such, many individuals charged with domestic matters are held for a court appearance (meaning they will possibly have to spend up to three nights in jail).

Normally, if the person is arrested on any day other than a Friday or Saturday, or a day before a holiday, the court appearance is held on the day of or the day after the arrest. Depending on several factors including court availability, the individual may be held for up to three clear days (or longer with consent of the accused).

At the initial court appearance, the accused will either be released on an undertaking and promise to appear in court, or the matter will be set down for a bail hearing. This will largely depend on the opinion of the prosecutor who will examine factors such as whether the accused poses a continued risk of harm to the victim, and whether the accused will likely show up for court (flight risk).

In short: Most individuals will eventually be released on an undertaking, but the police may hold the accused for up to three clear days in jail and require a court appearance before an undertaking is granted.

Domestic Assault Charges

Assault charges are a common result of domestic calls. It is very easy for the police to extract incriminating statements from angry spouses in the heat of the moment.

They’ll ask if the spouse touched or hit them in any way (without consent). Perhaps the wife will say “yeah, he put his hand on my shoulder”. With a spouse who is angry and perhaps not fully understanding the question, the police can easily also obtain a statement saying the contact was without consent.

The police will then charge the husband with assault. It doesn't matter whether there are visible injuries or whether any actual physical harm was inflicted, all the police need to press charges is a statement.

Domestic Threats Charges

Being charged for making threats is also common in domestic matters. There are two types of threats charges: 1) threats to person, and 2) threats to property.

All it takes is one person to tell the police a threatening statement was made and usually the person will be charged based on this alone. No audio recordings or written written statement is needed, just one person saying "he said it" is enough.

Charges for threats are extremely common. Common statements reported to the police that result in charges include: "I'm going to kill you", "I'm going to beat you up", "I'm going to hit you", "I'm going to burn the house down", and "I'm going to smash your car windows".

Police will also try to obtain statements by questioning each of the spouses. They'll ask questions like "did he say he was going to hurt or kill you?" The problem is that in the heat of the moment, and not being aware of the tremendous consequences attached to saying "yes", a spouse will tell the police a threatening statement was made resulting in charges without realizing the tremendous consequences attached to providing the police with this information.

Please note: Minor Domestic Charges of assault, mischief, and threats are currently a focused area of practice for attorney Mark Zinck, please see:

Domestic Mischief Charges

In section 430 criminal code, mischief, which generally refers to unjustified property damage, is defined to include when the accused:

(a) destroys or alters property;
(b) renders property dangerous, useless, inoperative or ineffective;
(c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
(d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.

Mischief is common in domestic assault cases when a person, in anger, breaks something in the house. Perhaps in the heat of the moment an individual decides to break property in their environment, instead of hitting their significant other. If this property belongs solely to the other spouse, a third party, or is owned jointly by the accused and the spouse, he can (and likely will) be charged with mischief.

Criminal Undertakings in Domestic Cases

As mentioned above, domestic charges will likely cause you to be eventually placed on a criminal undertaking. This is a legally binding promise to:

1) appear in court, and
2) abide by certain conditions.

The conditions attached to the domestic undertaking usually mean the spouses will not be allowed to have and contact with each other (either direct or indirect), and that the accused must avoid the common residence.

This means that as a result of calling the police during an argument (which may have been nothing more than a minor disagreement), both parties will be legally required not to contact each other until the undertaking ends or is varied. This can easily prevent contact for numerous months or even over a year (if a not guilty plea is entered).

It can also result in the accused not having a place to live. If there are children of the home, the accused may be legally prevented by the undertaking from contact with them for a significant length of time. Of course, defending the charges in court will likely require thousands of dollars in lawyer's fees.

What happens if you choose not to sign the undertaking?

Since it is unlikely the Crown or Police will release you without an undertaking, you will be held in custody (jail) until the matter is resolved or until you agree to an undertaking.

Can the undertaking be varied?

You also have the option of signing the original undertaking and then applying to the court to have it varied. In this scenario, you will have to present yourself before the court and ask the judge for varied conditions. Lawyers make such applications before Toronto courts daily. Sometimes it is possible to vary the undertaking to allow contact with the alleged victim spouse with their consent (particularly if the purpose of the contact is for facilitating access to the children).

For more information, please see our section on criminal undertakings.

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