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Criminal Defence Lawyer For Assault Charges
Assault is governed by section 265 of the Criminal Code of Canada. This section states that an assault occurs with the unwanted touching or the intentional application of force. However, it is important to understand that the actual application of force is not needed in order to be charged under this section. The courts have held that a gesture can also constitute an assault. Therefore, the application of force can be either a direct application or an indirect application. This use of force (even minor) has to occur without the consent of the other party (complainant or complaining witness).
What are the different Types of assault?
These offences include:
- Section 266 – Simple Assault
- Section 267(A) – Assault With A Weapon
- Section 267(B) – Assault Causing Bodily Harm
- Section 268 – Aggravated Assault
Simple assault is charged under section 266 of the Criminal Code and is the most minor form of an assault where a person can be charged. This section states:
Every one who commits an assault is guilty of:
- An Indictable Offence & Is Liable To Imprisonment For A Term Not Exceeding Five Years
- An Offence Punishable On Summary Conviction
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Assault with a weapon?
If a person uses a weapon, an imitation weapon, causes bodily harm, chokes, suffocates, or strangles the person – the charge will be under section 267. It states:
Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on summary conviction who, in committing an assault,
- (A) Carries, Uses Or Threatens To Use A Weapon Or An Imitation Thereof
- (B) Causes Bodily Harm To The Complainant
- (C) Chokes, Suffocates Or Strangles The Complainant
Section 268 Of The Criminal Code
Finally the most serious of the assault charges is aggravated assault contrary to section 268 of the Code. This section sets out:
Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. (2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
Summary conviction or indictment
As stated above, under section 266 and section 267, the prosecution must elect whether they will proceed by summary conviction or by indictment. Summary conviction means the prosecutor has proceeded on the lower end of the offence spectrum. (We do not have misdemeanors in Canada but the concept is very similar.) This means the matter must proceed in the provincial court. If the prosecution proceeds by indictment, two critical factors are important.
First, it means the penalty may be more severe and certain types of sentences may be eliminated. Finally, it will mean that you have an election where you can choose to proceed in the Court of Queen’s Bench or in the Provincial Court of Alberta. It is important that your lawyer carefully explain the pros and cons and conducts a risk benefit analysis before you make this decision.
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Domestic Assault Charges
Domestic Violence Charges
What is a Domestic Assault?
Domestic assault is not expressly defined in the Criminal Code. However, section 718.2(a)(ii) is now a mandatory aggravating factor in sentencing if the offender is in a spousal or common-law relationship with the victim at the time of the offence.
What will happen if you are charged?
If you have been charged in the context of domestic violence, it is critical to speak with your lawyer in order to discuss the bail or judicial interim release conditions. These conditions will limit your ability to contact your partner directly or indirectly. These conditions will also limit your ability to go home. These conditions can be devastating. Therefore, you will need an experienced litigator who is skilled and able to negotiate with the prosecution in order to address your concerns. It is also important to understand that in certain jurisdictions (e.g. Calgary) that a third party agency (called Homefront) will be in contact with your spouse, intimate partner, or common-law partner. Domestic violence is viewed as an extremely serious offence.
Getting charges dropped for domestic violence
Your spouse or intimate partner is referred to the “complainant.” Sometimes, the complainant wants you arrested or charged with an offence, but later on wants to “drop the charges.” In other cases, the complainant calls the police for help but does not want charges laid. However, the police may decide to lay charges based on the information they have learned from the complainant or from other witnesses.
It is important to understand that it is not the complainant who charges you, even if the complainant was the person who called the police. Technically, the charges are filed by Her Majesty the Queen (e.g. the prosecution) against you. Because it is not the complainant who “presses charges,” only the prosecutor can decide to withdraw the charges or make changes to the charges.
A complainant is certainly allowed to tell the prosecutor that they want the charges dropped. In some jurisdictions, the complainant will communicate with an outside agency. But the prosecutor may refuse to withdraw the charges, even if the complainant does not want the charges to proceed. A prosecutor may decide that it is in the public interest to prosecute you despite what your spouse/partner wishes.
Being Charged For Domestic Assault?
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Domestic Assault Defence
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What if the offence is minor or if i have a defence?
It is important to understand that the application or use of force may be minimal. As long as the prosecution can prove it is an intentional application of touching or contact then that will satisfy the actus reus or “guilty act.”
There are several possible defences that include but are not limited to:
- Consensual Fight
In order for the prosecution to prove an assault offence beyond a reasonable doubt, it must be proven that there was no consent from the party on whom the force was applied.
Consent can be verbal or implied due to the circumstances surrounding the incident. For example, a consensual fight is not a criminal offence. However, it is important to understand that a person can only consent to a consensual fight. There can be no consent if a weapon was used or any bodily harm resulted.
The law allows for the use of force or the threat to use force in certain situations. A person is allowed to use force to protect him or herself, another person, and, in some situations, property. If self-defence is advanced, it is essentially a legal justification for committing an assault. However, in order to be successful in advancing this defence, the use of force must be reasonable in the circumstances. An assessment of reasonableness will depend on the facts surrounding the incident and can depend on a number of different factors as specified under section 34 of the Code..
The application of force and or use of force must be intentional. Accidentally hitting someone would not constitute an offence. Any type of involuntary action that results in non-consensual contact with another person would not constitute an assault. In a commonly cited decision, (legal precedent) a man was using a telephone at a hotel and was in the process of calling the police. A man came up to the person on the phone and punched him. The person reacted instantly by hitting him with the telephone receiver. The Judge, hearing the matter, concluded that the accused hit the complainant as a result of a reflexive action and, therefore, no offence had been committed. This is because a necessary ingredient (mens rea), the mental intent/intention to apply the force, was missing.
What if i have been charged with assaulting a child?
Am I allowed to spank my child? Can I use force to discipline my child?
Spanking and or physical force applied to a child by a parent, a caregiver, or a teacher is governed pursuant to section 43 of the Criminal Code of Canada.
This section states that in some circumstances the use of force can be applied to a child. There are limitations and they include:
- Minor Force Only
- No Force Can Be Applied To The Child’s Head
- Force Can Only Be Applied With A Hand And Not Any Type Of Object (E.G. Belt)
- Force Can Not Be Used For Children Over The Age Of 12 Or Under The Age Of 2
- The Accused Person Cannot Be In A Fit Of Rage Or Angry When Applying This Force Because It Is To Be Used As Corrective Discipline Only
Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), 2004 SCC 4, is the leading decision on section 43 of the Code. In this decision, the Court rejected the argument that s. 43 is unnecessary because police and prosecutors could be trusted to exercise their discretion not to prosecute minor corrective contacts between teachers and parents and children. This section is necessary as a potential defence. If you have been charged with assaulting a child, it is important to explore whether this is an available defence for you.
What happens if i get convicted of an assault?
An assault conviction is classified as a violent crime. The consequences can be severe. If a finding of guilt is made this will result in a criminal conviction registered on a criminal record. Sentences can range from a monetary fine (this is on the rarer side) to a period of incarceration (jail).
If the prosecution proceeds by summary conviction, the maximum sentence is two years less one day. If the prosecution proceeds by indictment, the maximum sentence is five years imprisonment for a simple assault contrary to section 266 of the Code. Ultimately, the sentence/penalty will depend on what the Court sees as aggravating factors (factors that increased the gravamen of the offence) and the mitigating factors (factors that reduced the moral culpability of the accused).
Protect Your Reputation
It is important to understand that any finding of guilt may impact a person’s employment and or potential for future career and job opportunities. A criminal record may also impact your ability to travel and or volunteer in certain capacities. In some situations, a criminal record could also impact your immigration status.
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If you have been charged with an assault, this is a serious charge and you need a lawyer to help you. It is important that you do not speak with any other person about the details until you have received legal advice.
The first step is finding a defence team that will seek ways to get the best possible outcome for you. Contact Ross Lutz Barristers today to connect with one of our criminal defence lawyers.Learn More About Us