A TORONTO ASSAULT LAWYERS GUIDE TO ASSAULT CHARGES & DEFENCES

WHAT IS ASSAULT

Assault is the intentional application, or the threat of the application, of force. The amount of force applied is not relevant, what matters is if there was consent. It is possible to assault a person without even touching them. There are three ways to commit assault:

• Applying direct or indirect force to someone without their consent.
• Threatening another person by act or gesture to the degree that they have a reasonable belief the person will or can follow through with the threat.
• Accosting, begging, or impeding a person while openly carrying a weapon.

Although assault does not require physical touching, it does require intent. An accidental bump of altercation doesn’t constitute assault.

TYPES OF ASSAULT CHARGES

Toronto assault lawyers are tasked with defending a number of different types of assault charges. Some of these include:

• Assault causing bodily harm
• Assault with a weapon
• Aggravated Assault
• Assaulting a peace officer
• Sexual Assault
• Domestic Assault

ASSAULT CAUSING BODILY HARM

Assault causing bodily harm occurs when the accused commits an assault that causes bodily harm to another. It is a statutory offence punishable by up to 10 years in prison.

The Government of Canada defines bodily harm as, “Any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.”

The definition does not provide a concrete set of injuries that constitute bodily harm. But over the years the Courts have said at times brushing and scratches can constitute bodily harm. It entirely depends on the context and facts of the incident.

It is the prosecutor’s job to prove in court that the injury meets the definition of bodily harm. The defence lawyer may use the complainant’s medical records and/or a medical expert opinion to challenge the severity of the injuries.

Assault causing bodily harm is a dual offence. That means it can be prosecuted summarily or as an indictment. The decision of how a dual offence is tried is up to the Crown counsel. An indictable offence generally allows the right to a trial by jury, a summary offence does not.

Assault Causing Bodily Harm Penalties

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ASSAULT WITH A WEAPON

Assault with a weapon occurs when the accused commits an assault while carrying, using, or threatening the use of, a weapon. An imitation weapon can be prosecuted the same as a real weapon, even if it is not used directly in the assault.

The Canadian Criminal Code defines a weapon as anything designed, intended, or used to:

• Cause death or injury to a person.
• For the purpose of threatening or intimidating a person.

An assault lawyer requires the prosecutor to prove an item counts as a weapon. This includes both the item in question and whether the accused is reasonably believed to have intended to use the item as a weapon. One of three criteria must be met to count as weapon:

• The item is designed for use as a weapon (i.e. firearm).
• The item was used as a weapon (i.e. stabbing someone with a pen. The pen counts as a weapon because of how it was used, despite that not being it’s intended design).
• The item is intended to be used as a weapon (i.e. the accused threatens using an item as a weapon, whether designed for use as a weapon or not).

Canadian law covers assault with a weapon under the same section of the Criminal Code as assault causing bodily harm and thus have the same maximum penalties:

Assault With A Weapon Penalties

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AGGRAVATED ASSAULT

Aggravated assault is a more severe form of assault. It involves an attempt to commit an assault that severely wounds, maims, or disfigures the victim – with recklessness or indifference to human life. It is the most serious violent crime aside from homicide.

Aggravated assault is always tried as an indictable offence. If convicted, jail time is always served. The severity of charges depends on the degree of aggravated assault, whether it was premeditated, the degree to which was planned, the gratuitous nature of the assault, and the nature of the injuries.

Aggravated Assault Penalties

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ASSAULTING A PEACE OFFICER

This offence occurs when the accused assaults an active peace officer, public officer, or person acting in aid of an officer. Assaulting a peace officer has more severe charges than simple assault and can elevate charges in other forms of assault.

Defendants may face indictable or summary charges, depending on the severity and nature of the offence.

Assaulting A Peace Officer Penalties

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SEXUAL ASSAULT

In Canada, sexual assault is sexual contact without consent. It is a serious sexual based offence that results in jail time. Sentencing is dependent on the victim’s age, the severity, and whether it is prosecuted as a summary or indictable offence.

Sexual assault with a weapon, causing bodily harm, or threats to a third party, are forms of sexual assault that carry heavier penalties. These crimes include situations where the accused commits an offence:

• While carrying, using, or threatening to use a weapon or imitation thereof.
• Threatening to cause bodily harm to a third party.
• That causes bodily harm to the complainant.
• Or is party to the offence with another.

Sexual Assault Penalties

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Check out the Toronto Sexual Assault Lawyer Guide for greater detail on penalties, charges, and defences.

DOMESTIC ASSAULT

Domestic assault doesn’t carry a separate charge from assault in Canada. However, police are placing a higher priority on domestic violence. Cases of domestic assault are generally treated severely and sentences may include domestic violence counselling programs in addition to imprisonment.

An assault that occurs between spouses, intimate partners, or siblings, are instances of domestic assault. The consequences can be wide-reaching, including limiting access to your children. So hiring a top criminal defence lawyer is a necessity.

In Ontario, domestic violence is a zero-tolerance crime. There are strict guidelines for police, prosecution, and sentencing. It is one of the few remaining crimes to fall under the zero-tolerance policy.

The penalties for domestic assault are dependent on the type of assault. In addition to the penalties for the category of assault, the accused may also face:

• Court ordered counselling
• A Peace Bond
• Lengthy probation
• Limited access to their children

COMMON ASSAULT DEFENCES

A charge is not a conviction, it is merely a formal allegation. An experienced assault lawyer is your best chance to avoid conviction on assault charges. They are familiar with the most common and effective defences. The specific situation, actions, and intentions all play a role in determining both guilt and sentencing.

Here a few of the most common assault defences in Toronto:

• Consent
• Corrective force
• Reflex action
• Defence
  • Of another person
  • Of property
  • Self-defence

Consent

Consent is an important factor in assault cases. Evidence of consent can result in charges being reduced or dropped, depending on the circumstances. This is true of both sexual assault and simple assault.

However, consent is not always applicable. There are a number of situations where consent cannot be legally given or it is forfeit.

For example, if two adults consent to fight each other they will not receive as severe an assault charge as if one attacked the other unprovoked. However, should one attempt or succeed in committing serious bodily harm against the other, the consent is forfeit. This is because no one can legally consent to serious bodily harm.

Some other instances where consent is forfeit or cannot be legally given include:

• When under the application of force.
• Consent is given under threats or fear of the application of force.
• Under fraud.
• Consenting to an authority figure, ie. an employer.

Your criminal defence attorney can help guide you through whether a consent defence applies to your case.

Corrective Force

Corrective force is an assault defence that can only apply to teachers, parents, or persons who have assumed the obligations of parenthood. There are strict requirements for the legal correction of a child by force. These include:

• Force must be intended for corrective purposes.
• Child must be capable of benefiting from the correction.
• The force must be objectively reasonable under the circumstances.

There are a number of excluding factors that limit the use of corrective force as a defence. A child who is too young or mentally disabled, for instance, isn’t considered capable of benefiting from correction. Also, blows to the head are considered an unreasonable use of force, as well as degrading, inhuman, or harmful force.

Consult an assault lawyer before attempting a corrective force defence.

Reflex Action

A reflex action defence relies on a lack of intent. Where the action leading to the assault charges are a result of carelessness or a reflex action. In these situations the action was unintentional. A reflex action may be a reaction to a real, perceived, or immediate threat.

Defence

Ontario law allows the right to defend yourself your family, and your property with reasonable circumstance and force. Excessive use of force, even if you are attacked unprovoked, can transform self-defence into an assault charge.

If you are charged with assault when acting in defence, your criminal defence lawyer is responsible for proving the defence and use of force were reasonable under the circumstances.

HIRING AN ASSAULT LAWYER IN TORONTO

If you are facing assault charges in Toronto, you need to find an assault lawyer. Hiring an experienced criminal lawyer may be the difference between imprisonment and a not guilty verdict.

The best Toronto criminal lawyers know the most effective assault defences and ensure you get fair representation. Contact the Toronto criminal law firm of William Jaksa, today.