What Are The Potential Defences For Domestic Assault?

  • Factual Innocence:If the Crown is unable to prove the essential elements of the particular offence beyond a reasonable doubt, they will have failed to discharge their burden, and the accused will be acquitted.
  • Accused's Belief in Consent: The Crown must be able to prove beyond a reasonable doubt that the complainant did not consent to the assault. A defence to an assault charge may be that the "assault" was a consensual fight (i.e. a fight between players during a hockey game or a consensual bar fight). However, a person cannot consent to an assault where a party intended to cause bodily harm.
  • Self-Defence: Self-defence is commonly invoked in assault cases. One's actions may be justified in certain circumstances, such as where one has to protect yourself or someone else. In order to successfully argue self-defence, one must be able to demonstrate that:
    • there were reasonable grounds believe that he or others were at risk of acts of force or the threat of force;
    • the accused's actions were committed for the purpose of defending or protecting themselves or someone else; and
    • the act committed was reasonable in the circumstances.
  • Defence of Property: A person will not be guilty of an offence if they can demonstrate:
    • They have reasonable grounds to believe they are in peaceable possession of property or are acting under the authority of a person who has reasonable grounds to believe they have such possession;
    • They believe, on reasonable grounds, that someone has or is about to enter the property without authority to do so, is taking/about to take property, or has/is about to damage or destroy the property;
    • The accused's actions were for the purpose of preventing that person from entering/taking/damaging/destroying the property; and
    • The act committed was reasonable in the circumstances.
  • Violation of Charter Rights: Under the Canadian Charter of Rights and Freedoms, individuals are afforded specific rights, including:
    • the right against unreasonable search and seizure;
    • the right to not be arbitrarily detained;
    • the right to be informed promptly of the reasons for arrest;
    • the right to retain and instruct counsel without delay; and
    • the right to be tried within a reasonable time.

A successful Charter challenge may also result in a stay of proceedings, or evidence from your case being excluded.



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