Defending Against Unfair Domestic Assault Policies: Part 1

Posted by  on March 24, 2015
Defending Against Unfair Domestic Assault Policies: Part 1

The domestic assault lawyers at The Defence Group fight every day against the automatic imposition of “one size fits all” policies by the government in domestic violence cases.

These “zero tolerance” policies require the police to lay charges as soon as they receive a complaint of domestic assault, and they rarely investigate the allegation. They hold defendants in custody even when they have no record, when they routinely release from the police station suspects charged with more serious offences.

And the Crown attorney insists on a complete ban on contact between the parties for up to a year or more, splitting families apart at the point when they most need help and counseling. They seek strict penalties and push cases towards a trial rather than considering a more humane and appropriate resolution of the case, because their policies tell them to prosecute the case to the full extent possible and not to withdraw or agree to lenient dispositions in domestic assault cases.

There are two reasons why the government takes this strict approach to domestic violence cases: historical discrimination, and self-protection. This post will deal with the first of these two reasons: historical discrimination.

Historically, the law did not protect wives or girlfriends who were victims of domestic violence, especially in credibility-based “he said-she said” cases, where there is often no proof of violence, such as injuries. The current policies are designed to encourage victims of domestic assault to come forward and report against their abusers, by making sure that charges are laid immediately, and without any uncomfortable questions; by ensuring that the defendants are arrested immediately and held in custody without bail; and that if they are released, that they are removed from the home and forbidden any contact whatsoever with the complainant until the case is over, which can take a year or longer. The Crown is instructed not to withdraw these charges, and to insist on strict penalties, to discourage any future abuse and to promote rehabilitation of the offender.

The trouble is that these “one size fits all” policies assume that every domestic fight is a sign of longstanding, intractable, life-threatening domestic abuse. The government believes that every argument that leads to a slap or a push requires the state to come crashing down on one side, to forcibly separate the parties and punish one of them to the maximum extent possible. This is not to suggest that it is appropriate to lash out at a spouse or domestic partner during an argument. But separating them and locking one of them up in jail does not help in the large number of cases where a couple argues or gets into a fight, and in a brief moment, one of them loses self-control and says or does something they immediately regret, with no injury to the other party. In such a situation, the parties would benefit from counseling, or a cooling off period. Separating them for a year, removing the defendant from the house and splitting up the family is a formula for destroying a relationship not trying to fix it, at a moment when a couple most needs help to address their problems.

At The Defence Group, our domestic assault defence attorneys are former Crown prosecutors who know these policies and how they are applied. And because of this knowledge and experience, we know how to present negotiation briefs that are persuasive and compelling enough to convince the Crown in many domestic assault cases not to automatically apply their harsh policies, and to favourably negotiate the best result for the client without a trial. But should a trial prove necessary, our criminal trial attorneys will fight to win.

The Newmarket, Toronto, Milton, Brampton and Oshawa criminal lawyers at The Defence Group are always available to serve you- wherever, whenever you need our help. And we offer the flexible payment plans to make sure you can get back on your feet. For a free consultation, call us at 877-295-2830, or contact us by visiting our website at

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Arun S. Maini, lawyer and founder of The Defence Group, has practised criminal law since 1995. He’s a graduate of the University of Toronto and Dalhousie University Law School. After completing his articles at a Bay St. law firm, Mr. Maini joined the federal Department of Justice as a prosecutor of drug trafficking, tax evasion, and immigration fraud cases in Toronto, Brampton and Vancouver. In 1999, Mr. Maini transferred to the provincial Crown attorney’s office in Brampton, where he prosecuted a wide range of criminal offences, from theft to murder. In 2003, Mr. Maini left the government to establish The Defence Group. Mr. Maini handles all criminal offences and regulatory prosecutions.

Over more than 25 years as a criminal lawyer, Mr. Maini has prosecuted and defended hundreds of criminal cases, and has extensive jury trial experience. Mr. Maini has also lectured at The Advocates’ Society and has taught advocacy at the Law Society and Osgoode Hall Law School’s Intensive Trial Advocacy program. Maini appears occasionally in the media to comment on criminal law – see examples from the CBC, the Toronto Star, and the National Post.

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