Assault charges in Canada can be challenging to understand, especially if you have been charged with one and are navigating how to handle the charge. There are potentially serious consequences if you are charged with assault. That is why it is important to find the right lawyer to help you defend yourself and beat the charge. An experienced assault lawyer can help you figure out what strategy will be best for you.
There are two ways to beat an assault charge in Canada:
Get it dropped before trial, or.
Defend against assault charges (acquitted)
The details of the defences will be covered later in the article.
What is Assault?
First, it is important to understand what assault is under the Criminal Code of Canada. Under Section 265(1), assault is committed when a person:
without the consent of another person, they apply force intentionally to that person, directly or indirectly;
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
while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
In simple terms, someone can be charged with assault for physical harm, touch without consent, threats, or threatening gestures.
To further understand Section 265(1)(a) it is important to cover the definition of consent in assault charges under 265(3). There is no consent where the complainant submits or does not resist:
The application of force to the complainant or someone other than the complainant
Threats or fear of the application of force to the complainant or someone other than the complainant
A general assault charge is also referred to as a simple assault or common assault charge. This type of assault charge is the most common assault charge laid. As its name suggests, a simple assault arises when there is a simple altercation such as a threat uttered or a fistfight. A simple assault charge can result in five years imprisonment; however, this assault type rarely results in jail time.
Sexual assault charges cover a range of assaults of a sexual nature including inappropriate touching and rape. Penalties for sexual assault vary based on whether it is aggravated sexual assault or sexual assault with a weapon and can be upwards of a maximum life sentence. Convicted individuals’ names are recorded in the public assaulter database.
Assault with a weapon or causing bodily harm is more severe than a simple assault charge. Assault causing bodily harm occurs when physical harm has been caused to another person. If the assault causing bodily harm involves a weapon, the charge is then upgraded to assault with a weapon. Assault with a weapon or causing bodily harm can result in up to 10 years in prison.
Aggravated assault is often treated as an indictable offence and is therefore the most severe assault charge in Canada. Aggravating factors include serious injury, disfigurement, endangerment of life, and use of a weapon.
As the name suggests, assaulting a peace officer, referred to more commonly as assaulting a police officer, occurs when a police officer is assaulted. The punishment for assaulting a police officer is the most likely assault to be at risk of the maximum sentence.
How to Defend Yourself Against Assault Charges?
There are several defences available to you if you are charged with assault. The most common assault defence strategies include:
Raising of reasonable doubt
Lack of intent
Consent for the use of force
Plea bargain for reduced charges
Charter Rights violations/other procedural mistakes
Raising of Reasonable Doubt
The onus is on the Crown to prove, beyond a reasonable doubt, that the accused is guilty. A defence lawyer can therefore raise a reasonable doubt against the charge to have their client acquitted.
Lack of Intent
This is often argued as a reflexive response to an external stimulus or an unintentional force. This argument responds to the intent requirement in an assault charge.
Consent for the Use of Force
An essential component of section 267 outlines that the force was applied without the consent of the other party. A lawyer can mitigate culpability on the accused by providing evidence to suggest the complainant consented to the force; for example, in a fistfight two people may agree to enter into the fight.
Per section 34 of the Criminal Code, the defence lawyer must show (a) there was reasonable grounds to believe force or threat of force was being used against them or another person, (b)assault was committed with the purpose of defending themselves or another person, and (c) act was reasonable in the circumstances. In determining whether the act was reasonable, several factors are considered such as the imminence of the force, the nature and history of the relationship, and the nature of the force or threat of force.
Plea Bargain for Reduced Charges
If there are procedural or evidentiary flaws in the Crown’s case, a plea bargain can result in reduced charges. Your defence lawyer would enter into negotiations with the Crown to reduce charges and prevent both parties from going to Court.
Charter Rights Violations
The Court does not take lightly to Charter violations. If a Charter violation is established, the Court is likely to acquit. For example, this arises when there was an unwarranted search and seizure.
How to Get Assault Charges Dropped
Assault charges can be dropped either prior to trial or at trial. A defence lawyer can convince the Crown that it is not in the public interest to proceed to trial for several factors including: lack of evidence, procedural mistakes, and importantly, the accused’s corrective actions post-altercation. Our firm has experience with first-time offenders, second-time offenders, and those with a list of previous offences. We are prepared to help you regardless of your background history.
Contact an Experienced Defence Lawyer Today For Consultation
Pyzer Criminal Lawyers have won some of the toughest criminal cases in Toronto. If you are looking for experience, strategy, and a successful outcome, contact us at (416) 658-1818. We are dedicated to getting you the best outcome.
Legal Review By:
Criminal Defence Lawyer (B.A., L.L.B.)
Jonathan Pyzer, B.A., L.L.B, distinguished McGill University and University of Western Ontario alumnus, is a dedicated criminal defence lawyer throughout Ontario. Co-founder of Kostman & Pyzer, Barristers, he focuses on defending individual rights.