Under Canadian law, persons accused of domestic violence may face prosecution under the Canadian Criminal Code for acts of violence or abuse. In addition, under provincial laws, disobeying protection orders or applying for a protection order under pretense may lead to criminal charges.
Below is everything victims and persons accused of domestic violence in Canada need to know.
Quick take: Canada’s domestic violence laws explained
For victims of domestic violence
- You have the right to protect yourself from domestic violence using reasonable/necessary force.
- The burden of proof in domestic violence cases is on the victim.
- A self-defense claim will not work if you instigated the violence.
- You may apply for provincial or federal protection orders.
For persons accused of domestic violence
- Upon arrest, let your lawyer speak for you (do not say more than is necessary).
- Canadian law allows the police to lie to you during interrogations.
- You have the right to protect yourself, others and property from violence or damage.
- Violating a peace bond or provincial protection order may result in contempt of court charges and up to 4 years in prison.
- You will need evidence or an alibi to prove your side of the story.
- You qualify for an enhanced punishment if the victim was below 16 or if there is evidence of torture.
Canadian Criminal Code.
What constitutes domestic violence in Canada?
The Canadian Criminal Code does not contain legislation specific to domestic abuse or violence. However, an act of violence in the home may consequently result in criminal charges under the criminal code. What constitutes domestic violence in Canada depends on your province’s domestic violence act (see your province’s domestic violence laws via the links below). If your province isn’t listed, it is best to search out a local resource for the best help.
Alberta Domestic Violence Laws Explained
In general, you must remember that you are guilty of domestic violence if you intentionally or recklessly commit an act or omission that causes property damage, injury, or death in a domestic setting.
What are the 5 main types of domestic violence in Canada?
Under provincial laws, the following acts constitute domestic violence:
- Threats that create a reasonable fear for one’s safety or property.
- Physical assault includes shoving, slapping, punching, pushing, and kicking.
- Sexual assault includes sexual exploitation, marital rape, child pornography, and other illegal sexual acts.
- Forced confinement/forced marriage and transportation without consent.
Domestic violence laws explained: What are your rights under the Canadian criminal code?
Under the Canadian criminal code, you have the right to use force in self-defence intentionally.
Section 34(1) states that, quote:
“Everyone who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.”
The law works on the condition that:
- You act under reasonable apprehension of death or injury from the violence committed upon you. Meaning if someone attacks you and you reasonably fear for your safety, you may use force to defend yourself.
- You believe on reasonable grounds that force is the only way to protect yourself.
- You do not use more force than is reasonably necessary to stop the attack.
What does “reasonable in the circumstances” mean?
When acting in self-defence, your actions should be “proportional/necessary.” Meaning do not use more force than is necessary to stop the attack. Furthermore, if the attacker stops, so should you.
“Reasonable force or belief” means that a reasonable person given your situation would act similarly.
How to prove self-defence if accused of domestic violence in Canada
If you claim self-defence, you must prove that:
- You did not instigate the violence; your actions were a response. If you attacked first, the court might reject your claim.
- You used proportionate force. If your spouse threatens you and you stab or shoot the individual, the court will reject your self-defence claim because you used more force than is necessary.
Remember, if you claim self-defence, the burden of proof is on you. Consequently, you may need witnesses and evidence to prove your claim.
What to do if your child hits you
Section 43 of the Canadian criminal code allows parents, teachers, and caregivers to use reasonable force to correct a child. The section reads,
“Every schoolteacher, parent, or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care if the force does not exceed what is reasonable under the circumstances.
So, if a child attacks you, you have the right to:
- Use reasonable force to defend yourself.
- Use reasonable force to correct the child.
Is it legal to beat a child in Canada?
No, it is not legal to beat a child.
However, it is legal to use reasonable physical force to discipline a child.
To discipline a child, section 43 allows parents and caregivers to use reasonable physical force. However, teachers, may only use reasonable force to restrain or guide a student.
However, “Reasonable force” means:
- Do not use force that causes physical harm or bodily injuries. That includes using weapons or objects such as belts on a child.
- You should not use language that causes a child to reasonably fear for their safety.
- Avoid committing degrading, inhumane, or harmful acts against a child.
- You should not use physical force on a toddler.
In short, spanking, or using force to correct your child is unlawful if (1) The parent does it in an inhumane or degrading manner. (2) The action results in bodily injuries.
If you are under 18 and a victim of violence, you may call the police or a child welfare agency near you.
What are the types of domestic abuse in Canada?
Under the Canadian Criminal Code, it is unlawful to cause:
- Physical assault/abuse.
- Sexual assault/abuse.
- Verbal or emotional abuse.
- Mental or psychological abuse.
- Cultural and identity abuse.
- Financial and economic abuse.
If you commit any of the acts above at home, you may face the following penalties or civil action.
What is the punishment for domestic violence in Canada?
The actions of the abuser dictate the charges. Consequently, persons accused of committing domestic violence in Canada may face the following penalties.
Physical assault/abuse, causing bodily harm, and uttering threats/verbal or emotional abuse
Under section 264 of the Canadian Criminal Code, it is unlawful to knowingly utter, convey, or cause a person -including family members -to receive a threat. Threats include:
- Threats to cause bodily harm, kill, injure, or poison a person, animal, or bird belonging to the victim.
- Destroy real or personal property.
For a threat to become a crime, the victim must have reason to fear for their safety. So, if your partner threatens you and you believe the individual has the will and capability to enact the threat. You should notify law enforcement.
Uttering threats is a hybrid offense punishable by up to five years in prison for indictable offenses and a maximum of two years for summary offenses.
What are the defenses for uttering threats in Canada?
If accused of uttering threats, the prosecution must prove (1) The accused uttered the threats. (2) What words were uttered, and what was the context of the words. To counter the charges, your lawyer may argue:
- A reasonable person would not perceive your words as a threat.
- The words were a reaction to the circumstances (context of the words).
- The accused did not utter the words expecting the victim to take them seriously (joke).
Physical assault/causing bodily injury
The Canadian criminal code defines assault as, quote:
“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.”
There are three levels of assault:
Level 1 domestic assault in Canada
The least serious assault charge in Canada is level 1 assault. You are guilty of level 1 assault if you push, slap, or utter verbal threats.
Under section 271 of the Canadian Criminal code, level 1 assault is punishable by a maximum sentence of ten years for an indictable offense. For summary offenses, the penalty is a maximum of two years minus a day.
If at the time of the assault the victim was below 16, the minimum sentence is one year in prison.
Level 2 domestic assault/causing bodily harm in Canada
Level 2 assault in Canada occurs when an individual commits an assault using a weapon or threatens to use one. You are guilty of level 2 assault if (1) you carry or use a weapon during the commission of an assault. (2) cause bodily harm. (3) choke, strangle, or suffocate the victim.
Unlawfully causing bodily harm to another is an indictable offense punishable by a maximum of ten years in prison. The penalty for a summary conviction is 2 years in prison.
Level 3 domestic assault in Canada
Level 3 assault or aggravated assault involves causing bodily injury such as disfiguring the victim, maiming, wounding, or injuries that put the victim at great risk of death or permanent disfigurement.
If the victim is above 16, and if there are no signs of torture, the maximum penalty for level 3 assault is 14 years for an indictable offense and up to 2 years for summary conviction.
What are the defenses for domestic assault in Canada?
Section 265(4) of the criminal code states that, quote:
“Where an accused alleges that he believed that the complainant consented to the conduct that is the subject matter of the charge, a judge is satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defense, 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.”
Defenses for domestic assault and battery in Canada
Depending on the facts presented, the accused may argue:
- The victim consented. A consent defense is only valid if the victim voluntarily consented to a legal act. If the act was illegal, this defense will not work.
- Defense of property. You used reasonable force to stop the destruction of your property.
- Defense of others. You had an honest belief that the victim needed immediate assistance.
Domestic sexual assault/abuse.
Just like physical assault, there are three levels of domestic sexual violence in Canada. Level 1 involves minor injuries and the use of threats in the commission of a sexual assault. Level 2 sexual assault involves bodily harm and the use of a weapon or imitation of a weapon resulting in bodily injury. Level 3 sexual assault involves maiming, disfigurement, or damages that put the victim at risk of death or disfigurement.
Domestic sexual assault Canada: what you need to remember
- The prosecution must prove beyond a reasonable doubt that the victim did not consent.
- Sexual assault occurs when one makes sexual contact with another without consent.
- A summary conviction for sexual assault carries a minimum sentence of two years minus a day if the victim is under 16. If the victim is above 16, the minimum penalty is six months.
- Level 3/aggravated sexual assault carries a maximum sentence of life in prison.
- If the victim of sexual violence is below 16 years, the maximum penalty is life in prison.
- Sexual assault’s definition under the criminal code extends to all forms of sexual violence and unwanted touching.
- The maximum penalty for sexual assault in Canada is life in prison.
- Domestic sexual violence may include incest, sodomy, sexual interference, an invitation or forcing of sexual touching, child pornography, and sexual exploitation.
- A supreme court ruling says that self-induced extreme intoxication is a defense for sexual assault.
- The burden of proof is on the victim.
- A minor cannot legally consent to sexual activity.
Defenses for domestic sexual abuse in Canada
A person accused of committing sexual assault in Canada may argue:
- No sexual activity occurred.
- The victim consented.
- The accused was somewhere else at the time of the incident (alibi).
- Insanity or mental incapacity.
- Extreme self-intoxication is a defense against sexual assault and violent crimes in Alberta.
Is emotional abuse against the law in Canada?
In Canada, emotional and psychological abuse refers to a pattern of behaviour one uses against another to control, isolate, or take away the victim’s self-respect. The definition encompasses actions including manipulation or gaslighting, constant yelling, criticism, isolation, destruction of property, threats, or violent actions against the victim’s pets, and so on.
Under the Canadian Criminal Code, psychological and emotional abuse that may lead to criminal prosecution includes:
(1) Advising a child or family member to commit suicide.
(2) Phone harassment.
(3) Threatening to harm a family member’s pet.
(4) Intentionally intimidating a child.
The penalty for emotionally abusive behaviour is up to two years minus a day for a summary conviction and up to ten years for indictable offenses.
Can you sue for emotional distress in Canada?
Yes. You may sue your partner for emotional distress in Canada. However, the burden of proof is on the plaintiff, meaning you must show the court a pattern of abusive behaviour.
What to remember
- When suing for emotional distress, you may have to provide evidence of physical harm, emotional trauma, and psychological harm.
- Signs of emotional distress include anxiety, anger, isolation, a feeling of worthlessness, and personality changes (hard to prove, recommend consulting with a claims attorney).
What happens if a victim of domestic violence dies in Canada?
As mentioned, under Canadian law, violence that occurs inside the home is treated similarly to violence that occurs outside the home. In other words, if domestic violence results in death or serious injury, the accused will face charges under the criminal code.
The accused may face manslaughter or murder charges. Manslaughter occurs if the death was accidental. A murder occurs when the accused thinks about/premeditates the crime.
Canada domestic violence laws: Federal protection orders
If you are a victim of domestic violence or at risk, you may apply for a provincial or federal protection order. See provincial protection orders via the links above.
Under section 810 of the Canadian criminal code, the court may issue a peace bond to victims or potential victims of domestic violence.
What is a “peace bond”?
A peace bond is a protection order that imposes specific conditions aimed at preventing the subject from committing acts of violence against a family member. Failure to obey a peace bond may result in up to 4 years in prison.
What does a peace bond do?
A peace bond may require the subject to do the following:
- Remove all weapons from the home/forbid the subject from owning a weapon.
- Restrain the subject from direct/indirect communication with the victim.
- Abstain from drug or alcohol abuse.
- Restraining order.
- Any condition the court deems necessary to keep the potential victim safe.
Note. Applying for a portion order under pretense may lead to criminal charges.
Clare’s law domestic violence Canada
Enacted in the majority of provinces, Clare’s law, or Domestic Violence Disclosure Act is legislation that has been passed in some provinces that allows victims or persons at risk of suffering domestic violence to access their partner’s criminal record.
What provinces have passed Clare’s Law?
As of 2022, there are three provinces that have passed Clares law. Saskatchewan, Alberta, and Newfoundland and Labrador. Manitoba has promised to introduce one, while legislation has failed to pass in BC and Ontario.
If you have reasons to suspect your spouse or intimate partner has a record of violence, you should apply at a local police station.