being charged with assault
Assault charges can result from the most minor of altercations to serious fights resulting in severe injuries. Often, people charged with assault have had no prior dealing with the criminal justice system. Nevertheless, being convicted of assault, no matter how minor, can have life-altering consequences. For instance, if you work with children or other vulnerable groups, you may not be able to continue to work in your field. Assault charges can also compromise your immigration status if you are not a Canadian citizen. In the most serious cases, lengthy prison sentences are possible.
This is why it is important to speak to a lawyer with experience in dealing with assault charges as soon as you can after being charged. A an experienced and skilled lawyer might be able to get assault charges withdrawn or reduced, and will give you the best chance of raising the reasonable doubt that is needed to secure an acquittal if you decide to take your case to trial.
what is assault?
The core legal definition of assault is the intentional application of force without the consent of the person to whom the force is being applied. This means that if you accidentally bump into someone on the street because you are distracted, you have not committed assault, even if the person falls and breaks their nose. This is because you did not intend to bump into the person.
There are a number of categories of assault in the Criminal Code, which range in degree of seriousness: simple assault, assault causing bodily harm or assault with a weapon, and aggravated assault. While the core definition of assault applies to all these categories, what differentiates these types of assault is degree of the injuries that result.
Domestic assault is subject to the same categories. However, domestic assault is treated very differently by prosecutors and courts because of the intimate nature of the relationship of the parties involved. This is why domestic assault is often referred to as its own category of assault.
types of Assault
Simple Assault
People are often surprised that the threshold for being charged with simple assault under the Criminal Code is extremely low. All that is required is an intentional application of force to another person without that person’s consent. This means that, per the strict letter of the law, a pat on the back is an assault. However, most people will not call the police over a pat on the back, or even over a bit of pushing and shoving. That being said, because the definition of assault in the Criminal Code is so broad, police have a great deal of discretion about whether to press charges, which can lead to an arbitrary or even vindictive application of the law, often to the detriment of poor and marginalized individuals.
Punishment
Even a minor physical altercation can have serious consequences, including a criminal record, strict court-imposed conditions for several years, and even jail. The maximum penalty for simple assault is 5 years imprisonment.
However, in practice, simple assault cases are often resolved with the defendant agreeing to enter into a peace bond, or with the charges being withdrawn after the defendant has completed a certain number of hours of community service or counseling. This is why it is important to hire a lawyer who has good professional relations with prosecutors and who can negotiate a withdrawal of the charges.
Assault with a weapon or causing bodily harm
Section 267 of the Criminal Code creates a separate category of offence where an assault involves choking, suffocating or strangling, the use of a weapon or even an imitation weapon, or results in bodily harm.
The term “bodily harm” has been loosely interpreted by the courts, and can include injuries that are fairly minor, such as small cuts and bruises.
Furthermore, it is not necessary that a weapon actually be used to cause harm for someone to be charged with assault with a weapon. The mere fact of threatening to use a weapon or wielding a weapon in the process of applying force could be considered assault with a weapon, even if only bare hands are used to apply force.
In addition, the Criminal Code does not define the term “weapon” in the traditional sense to mean things like firearms of knives. Any object that is used in the commission of an assault could be considered a weapon, even a pillow.
Punishment
A conviction for assault causing bodily harm or assault with a weapon will almost always carry a harsher sentence than simple assault, though this depends on the specific facts of each case. The maximum sentence for assault causing bodily harm or assault with a weapon is 10 years imprisonment.
While the range in sentences for this offence varies a great deal, I have had tremendous success in getting excellent results for my clients, including getting a client’s charges withdrawn altogether.
Aggravated Assault
Aggravated assault is one of the most serious charges in the Criminal Code, the next most serious violent offences being manslaughter, attempted murder and murder.
The Criminal Code defines aggravated assault as an assault that wounds, maims, disfigures or endangers life. Typically, this will involve injuries such as broken bones, scaring or other injuries that require surgery, stitches or other significant medical procedures or treatments.
A typical scenario in which people end up being charged with aggravated assault is a “bar fight” scenario in which a relatively minor confrontation escalates from pushing and shoving to punching and kicking. Often, people do not intend to cause serious injuries but for reasons that are sometimes out of their control, someone ends up badly hurt. For instance, if someone falls and hits their head, resulting in permanent brain damage, it is possible to be charged with aggravated assault even if what caused the fall was a single punch.
Successful defences to charges of aggravated assault typically involve demonstrating that the Crown cannot prove the identity of the assailant beyond a reasonable doubt.
Punishment
A conviction for aggravated assault will almost always result in jail time, with maximum sentence being 14 years. On the lower end of the range of possible sentences, it is possible but rare for a person convicted of aggravated assault to serve an intermittent sentence (also know as “weekends”).
It is also possible to reduce the sentence by demonstrating that the injuries inflicted do not rise to the level required by the Criminal Code to support a charge of aggravated assault and should be reduced to assault causing bodily harm. A skilled lawyer who has a thorough understanding of the case law on assault can successfully argue that the charges should be reduced to assault or assault causing bodily harm, in which case the sentence could be as low as a term of probation, depending on the specific circumstances of the case.
Domestic Assault
Domestic assault is not a specific category of assault that is set out in the Criminal Code, but rather refers to a situation in which the defendant and complainant have been in an intimate relationship. The marital status, length of the relationship or gender are not relevant to determining whether the prosecution and the court will consider an assault to be a domestic assault or otherwise. However, factors such as the presence of children, the degree of financial dependency between the parties and whether or not the parties wish to reconcile will be considered in determining how these sorts of charges ultimately resolve.
Succesful defences to charges of domestic assault can include an argument of self defence, however the bar to successfully raise self-defence is high. This is why in cases where the injuries are not too serious, domestic offence charges are often resolved by way of a withdrawal or discharge once an appropriate plan has been put in place.
Punishment
As with any assault, the punishment for domestic assault depends on the nature and extent of the injuries sustained. For instance, where the injuries are extremely serious, it is possible for an individual to be charged with aggravated domestic assault. The fact that the assault occurred within a domestic context will have an impact on the sentence imposed and will typically attract a harsher sentence, though this depends a great deal on the specific facts of a case.
While the common perception of domestic assault is that of an abusive male targeting a vulnerable female, in my experience, the specific facts in cases of domestic assault vary a great deal from case to case. I have represented both males and females charged with domestic assault and have had a great deal of success in getting charges withdrawn and sentences greatly reduced, which in some cases has lead to a smooth reconciliation of the parties involved.