Defences For Assault Charges

Any conviction for assault can land you in jail. If you were charged with using a weapon or inflicting grievous bodily harm, the penalties can be harsh. The justice system does not treat violent crime lightly. The Crown prosecutor will be seeking a sentence that not only reflects the seriousness of the crime but acts as a deterrent to the public in general. Even if you are a first offender, you could end up serving a custodial sentence, and penalties increase for a repeat offender.Any conviction for assault can land you in jail. If you were charged with using a weapon or inflicting grievous bodily harm, the penalties can be harsh. The justice system does not treat violent crime lightly. The Crown prosecutor will be seeking a sentence that not only reflects the seriousness of the crime but acts as a deterrent to the public in general. Even if you are a first offender, you could end up serving a custodial sentence, and penalties increase for a repeat offender.

Under the Criminal Code, you can be charged with assault if you directly or indirectly intentionally apply force on another person without their consent. No physical contact has to occur. You can be arrested for threatening to assault someone. There are several degrees of assault: common or simple assault; assaulting a peace officer; assault causing bodily harm; assault with a weapon; and aggravated assault. There is also sexual assault and sexual assault with a weapon. For more on sexual assault charges, see my blog.

Every assault case is different and the penalties can vary from a conditional discharge to a prison term depending on the severity of the crime and whether the accused is a repeat offender. While assault is taken seriously, there are defences available including:

  • raising a reasonable doubt;
  • lack of intent;
  • self-defence; and
  • consent.

Our legal system has many moving parts and defending assault charges can be complex, requiring an experienced criminal lawyer who can present your defence effectively and ensure your rights are protected. I can help you understand the process. As a former Crown and current defence attorney, I have experience on both sides of the courtroom, giving me the inside knowledge necessary to craft an effective trial strategy. When you have been charged with assault, contact my office for a free initial consultation. I can examine the evidence against you and suggest your best defence.

What if the victim decides not to pursue charges?

Typically, an assault charge is laid after police are called. The person reporting the assault could be the alleged victim or a witness. One common misconception is that when police arrive the complainant is the one who decides whether to pursue an assault charge, especially in a domestic situation. However, police make that decision and it is more likely than not that an arrest will be made.

It should also be noted that even if the complainant decides not to continue with the case, it is not a simple matter of going to the Crown and asking that the charge be dropped. In fact, even if the alleged victim says they will not testify, the prosecutor could request a subpoena compelling that person to give evidence. Still, the Crown can choose to withdraw the charge if they believe the chance of a guilty verdict is unlikely.

While it may not be possible to prevent the case from going to trial, if the alleged victim recants, the judge may take that into consideration when reaching a decision.

Can I avoid a jail term by admitting responsibility?Courts generally give more lenient sentences to offenders who plead guilty. It saves the justice system time and money while sparing the victim the need to testify, which can be stressful. But while pleading guilty may result in a reduced sentence, it is not a guarantee. Your lawyer and the Crown will make submissions about the appropriate penalty but ultimately it is the judge who makes the decision, considering several factors including the severity of the offence and your criminal record. The decision to enter a guilty plea should not be taken lightly and only after considering all the pros and cons with your lawyer.

It is possible to request that the charges be dropped in cases of an alleged assault where no weapon was used and the injuries were not serious. This may necessitate you agree to counselling. You might be expected to enrol in a rehabilitation program and complete community service work. After you have fulfilled the court-ordered requirements, the charges would be withdrawn.With many minor assault offences, the Crown may be willing to withdraw the charges if you agree to a peace bond. Agreeing to a peace bond is not an admission of guilt. It is an acknowledgment that  an alleged victim is justified in fearing for their safety. These bonds usually last a year and as long as you abide by the conditions you will not have a criminal record when it ends. It should be noted that a peace bond will show up on police record checks while it is in force.

The terms of your peace bond could dictate that you:

  • keep the peace and be of good behaviour;
  • not contact or visit the alleged victim;
  • abstain from using non-prescription drugs or alcohol and be required to provide bodily samples to ensure compliance;
  • be forbidden from owning weapons; or
  • pay, or promise to pay, a refundable surety to the court, which may be forfeited if you breach any conditions of the peace bond.

Breaching any condition of a peace bond is a criminal offence.

Building your defence

When I take your case, I will examine all the evidence and, with your input, determine the best course of action. In Canadian law there is a principle of de minimis non curat lex, which means the law does not concern itself with trifles. The justice system would rather use its resources dealing with serious crimes so if the assault you are charged with is relatively minor, I might be able to use this legal principle in your defence.

I will also check to see if any of your rights under the Charter or Rights and Freedoms have been violated. For example, you have the right to be secure against unreasonable search or seizure. You also have the right to a timely trial.

There are four basic defences I can consider in your case:

Reasonable doubt
It is the Crown prosecutor’s responsibility to prove your guilt beyond a reasonable doubt. After an examination of the evidence, I will be able to determine if I can find flaws in the Crown’s case. For example, identification evidence may be questionable.

Lack of intent
Depending on the incident, you may be able to prove that your actions were accidental and unintentional. There are two parts to a crime. The actus reus is the guilty act but it also must be demonstrated that you possessed the requisite mens rea, or guilty mind. The action that led to someone being assaulted may have been reflexive. For example, you could accidentally strike someone while trying to shoo away a bug.  If you can prove that you had no intention of harming another person, the charges could be withdrawn.

Self-defence
Under s.34 of the Criminal Code you are legally justified in using force to defend yourself, your property or others against an attack as long as your intent is not to cause grievous bodily harm or death. You must prove that you were acting reasonably and had grounds to believe that force was being used against you. In determining if you acted in self-defence, the court will look at a number of factors such as the nature and force of the threat and whether there were other ways to respond.

Consent
This defence is commonly used in cases of a fistfight where both parties willingly participated. However, it is important to note mutual consent is no longer a valid defence if you continue to strike someone after they stop fighting.

An assault conviction has a lasting impactIf you are found guilty of any assault charge you will have a criminal record. That could have a long-term effect on your life. You need an attorney who has the knowledge and experience to defend you. I invite you to check out my client testimonials and my record representing those charged with assault. Then contact me for a free initial consultation.