What are the best defences to a charge of assault causing bodily harm?

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What are the best defences to a charge of assault causing bodily harm?

The best defence in an assault causing bodily harm trial depends on the specific facts of the case.

Many assault causing bodily harm cases in Calgary do not go to trial because the accused pleads guilty. Skilled criminal defence lawyers can often negotiate with crown prosecutors to join them in asking the judge to order a sentence that is good for the accused. When the crown prosecutor and defence lawyer join in asking the judge to order a sentence, the judge must order that sentence unless doing so would harm the reputation of the justice system. Sometimes a defence lawyer can convince a crown prosecutor to consent to the accused making a plea of not guilty to assault causing bodily harm, but guilty to the (lesser and included) offence of “simple assault” (i.e. assault). A criminal record for assault is better than a criminal record for assault causing bodily harm. I have a separate FAQ about ways to deal with a criminal charge without going to trial.

Although it is rarer for assault causing bodily harm than simple assault, a criminal defence lawyer may be able to persuade the crown prosecutor to refer an assault causing bodily harm charge to a diversion program, such as the alternative measures program (AMP) or mental health diversion (MHD), which allow the accused to avoid a criminal record and have the charge dropped after completing certain programming and following certain conditions. After the diversionary program is completed, the charge is withdrawn (dropped). Although it is even rarer, a criminal defence lawyer can sometimes persuade a crown prosecutor to drop the charge outright, without the accused completing any formal program, because there is no reasonable likelihood of conviction or no public interest in prosecuting the charge. I have a separate FAQ on how to get charges dropped.

If the accused pleads not guilty and the assault causing bodily harm charge goes to trial, their defence lawyer may make the following arguments, depending on the situation:

  • Assault causing bodily harm not proven: The crown prosecutor did not prove the offence beyond a reasonable doubt. For example, the crown prosecutor failed to prove that the assault was intentional (for example, that the accused did not slip and fall into the complainant, rather than intentionally hitting them), or that the assault (and not something else) caused the bodily harm.
  • Charter rights violation: Evidence against the accused is excluded or their charge is dropped because their Charter rights were violated, leaving them without a conviction. For example, the only evidence for the prosecution’s case is a video from the accused’s phone that was taken by the police without a warrant or grounds to take it, and the judge decided that this violation of the accused’s right against unreasonable search and seizure is so bad that society is better off if the video is not allowed as evidence in the trial.
  • Self-defence (or defence of others): The accused lawfully acted in self-defence and is therefore not guilty of the assault causing bodily harm, even though they did intentionally apply force to the complainant which did cause the complainant bodily harm. Self-defence only applies if the accused was acting reasonably to defend themselves (or someone else) from threat of harm. The law of self-defence is complicated and changes often, but it typically does not apply unless the threat was realistic and “imminent” and the amount of force used was “proportionate.” For example, it would not be considered self-defence if you punched someone in the face because you were scared by “the look in their eyes,” or worried that they would hurt you next month if you do not punch them now, or if you shot someone in the head because they slapped you.