Convicted of Domestic Assault in Ontario: What Actually Happens

The Sentencing Range

There is no mandatory minimum sentence for common assault (section 266) or assault causing bodily harm (section 267) in Canada. This gives the sentencing judge wide discretion. The range of possible sentences, from least to most severe:

1. Absolute discharge — guilty but no conviction, removed from record after 1 year
2. Conditional discharge — guilty but no conviction, probation, removed from record after 3 years
3. Suspended sentence with probation — conviction recorded, no jail, probation up to 3 years
4. Conditional sentence (house arrest) — conviction recorded, sentence served in the community under strict conditions
5. Jail — federal penitentiary (2 years or more) or provincial institution (under 2 years)

The statutory maximums are: 5 years for common assault by indictment, 10 years for assault causing bodily harm by indictment, and 14 years for aggravated assault. Summary proceedings carry a maximum of 2 years less a day.

Absolute Discharge

An absolute discharge under section 730 of the Criminal Code is the most favourable outcome after a finding of guilt. The court finds the accused guilty but does not register a conviction. The discharge is removed from the CPIC database after 1 year, at which point it effectively disappears.

Absolute discharges are available only where the offence carries no mandatory minimum penalty and the maximum is less than 14 years imprisonment. Common assault (section 266) qualifies. Aggravated assault (section 268, max 14 years) does not.

The court will grant a discharge only if it is “in the best interests of the accused and not contrary to the public interest.” For first-time offenders with stable employment, family responsibilities, and no prior record, an absolute discharge is a realistic outcome in a less serious domestic assault case.

Conditional Discharge

A conditional discharge also avoids a criminal conviction but comes with probation conditions that the accused must follow — typically for 12 to 36 months. Common conditions include counselling (the PAR program or equivalent), community service, no contact with the complainant, and good behaviour.

The conditional discharge is removed from CPIC after 3 years from the date it was granted. If the accused breaches the probation conditions, the court can revoke the discharge and substitute a conviction with any sentence that could have been imposed originally.

Conditional discharges are more common than absolute discharges in domestic assault cases because the Crown and the court typically want some period of supervision and conditions. It is a compromise: the accused avoids a permanent criminal record, and the system retains oversight.

Suspended Sentence with Probation

A suspended sentence means the court registers a conviction but does not impose a jail term. Instead, the accused is placed on probation — up to 3 years — with conditions. If the accused complies, no jail is served. If they breach probation, the court can impose a sentence of imprisonment.

Unlike a discharge, a suspended sentence results in a permanent criminal record unless a record suspension (pardon) is obtained. The record appears on criminal record checks and vulnerable sector checks, affects US travel admissibility, and must be disclosed to professional regulatory bodies and employers who require it.

Conditional Sentence (House Arrest)

A conditional sentence under section 742.1 is a sentence of imprisonment served in the community — commonly referred to as house arrest. The accused must comply with strict conditions: a curfew (often 24-hour house arrest with exceptions for work, school, and appointments), reporting to a supervisor, no alcohol or drugs, and other terms.

Conditional sentences are available only when the sentence would otherwise be less than 2 years, the offence does not carry a mandatory minimum, and the court is satisfied that serving the sentence in the community is consistent with the fundamental purpose of sentencing. Breaching a conditional sentence results in the accused serving the remainder of the sentence in custody.

Jail

For serious domestic assault cases — significant injury, use of a weapon, a pattern of violence, prior domestic convictions, or breach of a no-contact order — a sentence of imprisonment is a real possibility. Provincial sentences (under 2 years) are served in a provincial correctional facility. Federal sentences (2 years or more) are served in a federal penitentiary.

Remand credit applies: time spent in custody before sentencing is typically credited at a rate of 1.5:1 (one and a half days credit for each day spent in pre-sentence custody). For an accused who has been detained for several months awaiting trial, remand credit can significantly reduce the remaining sentence.

For sentences of 90 days or less, the court may order an intermittent sentence — served on weekends, for example — allowing the accused to maintain employment during the week. This is subject to institutional capacity and is not available in all locations.

Aggravating Factors

Section 718.2(a)(ii) of the Criminal Code makes the domestic relationship an explicit aggravating factor at sentencing. The court must treat the fact that the offence was committed against a spouse, common-law partner, or intimate partner as increasing the seriousness of the offence. Other aggravating factors in domestic cases include:

• Severity of injury — broken bones, lasting disfigurement, or hospitalization.
• Use of a weapon — knives, household objects, firearms.
• Children present — the court treats the presence of children during a domestic assault as a significant aggravating factor.
• Prior record — previous convictions for domestic violence, breach of court orders, or violent offences.
• Breach of a protection order — if the assault occurred while the accused was subject to a no-contact order, peace bond, or probation.
• Vulnerability of the complainant — age, disability, or other factors that made the complainant particularly vulnerable.
• Planning or premeditation — as opposed to a spontaneous act during an argument.

Mitigating Factors

The defence presents mitigating factors to argue for the lowest appropriate sentence. Common mitigating factors in domestic assault sentencing include:

• First offence — no prior criminal record is the single most significant mitigating factor.
• Good character — evidence of stable employment, community involvement, and positive character references.
• Remorse and rehabilitation — completion of counselling (PAR program, anger management), letters of support, evidence of behavioural change.
• Guilty plea — an early guilty plea is treated as a mitigating factor because it saves judicial resources and spares the complainant from testifying.
• Family responsibilities — being the primary caregiver or financial provider for children or dependents.
• Employment consequences — where a conviction would result in loss of professional licence, deportation, or other disproportionate consequences (Gladue-type considerations for Indigenous offenders; immigration consequences for non-citizens).
• Provocation — while not a defence to the charge, evidence of provocation can be a mitigating factor at sentencing.
• Minor nature of the assault — no injury, brief contact, or a push/shove rather than a punch or sustained attack.

Ancillary Orders

In addition to the sentence itself, the court may impose ancillary orders that carry their own consequences:

Weapons Prohibition (Sections 109 and 110)

For offences involving violence against an intimate partner prosecuted by indictment, a mandatory weapons prohibition under section 109 applies. This prohibits possession of firearms, crossbows, restricted and prohibited weapons, and ammunition for a minimum of 10 years (lifetime for a second offence). For summary proceedings, the court has discretion to impose a prohibition under section 110. If you hold a firearms licence, it will be revoked. Any firearms must be surrendered.

DNA Order

Depending on the offence and how it is prosecuted, the court may make a DNA data bank order under the National DNA Data Bank provisions of the Criminal Code. For primary designated offences, the order is mandatory; for secondary designated offences, it is discretionary. A DNA order requires the offender to provide a biological sample for inclusion in the national DNA database.

No-Contact and Probation Orders

The court may impose a no-contact order as a condition of probation, which extends the prohibition on contact with the complainant beyond the bail period. Probation conditions can also include counselling, community service, a curfew, geographic restrictions, and abstaining from alcohol or drugs. Breaching probation is a separate criminal offence under section 733.1.

The Importance of Sentencing Advocacy

Sentencing is not automatic — it is a hearing where both the Crown and the defence make submissions about the appropriate outcome. The defence lawyer’s role is to present every mitigating factor, propose a realistic sentence that avoids or minimizes a criminal record, and challenge the Crown’s position on aggravating factors. In domestic assault cases, the difference between a discharge and a conviction can come down to how effectively the mitigating factors are presented.

RH Criminal Defence approaches sentencing in domestic cases with a focus on the outcome that protects the client’s record, livelihood, and family. That may mean pursuing a discharge, arguing for a conditional sentence instead of jail, or presenting a comprehensive mitigation package that demonstrates the client has already taken meaningful steps toward rehabilitation.