People charged with assault in Canada are often confused about the legal jeopardy they potentially face. When people charged with assault contact our Toronto-area law offices for help, the question of “how bad is an assault charge?” is often among the first raised. This apparent confusion about the degree of seriousness regarding assault charges in Ontario specifically and Canada on the whole is caused by their broad-scale classification under Canada’s criminal code. Assault under Canadian law covers everything from an implied threat to actual physical harm leading to hospitalization. Additionally, assault charges in Canada can also be classified according to type of assault (sexual, violent, with weapon, etc.), relationship (domestic), and/or extent and severity of resultant damages (whether physical or emotional).
Another question often asked of our assault charge defence lawyers in Toronto is can assault charges in Canada be beat? The answer to that question depends on numerous factors relating to the charges and incident that led to the arrest. Bottom line is that there are numerous defence strategies that can be applied in assault cases and getting legal representation from highly experienced criminal defence lawyers —such as those at Mass Tsang—is crucial for securing a positive outcome in any assault case.
We’ll return to defence strategies further on, but first, let’s take a closer look at how Canada’s Criminal Code defines assault and how the justice system addresses the various types of assault. While examining the Criminal Code assault definition and its interpretation by courts, we’ll point out some significant details that often become important at trial and play a role in defence strategy.
According to Canada’s Criminal Code Section 265 (1) a person commits an assault when:
“(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;”
The primary point to keep in mind with this section is the focus on “intentionally,” because on a legal basis assault cannot occur without “intent.” This section, known more simply as the “intentional application of force,” represents the vast majority of assault charges in Canada.
“(b) he attempts or threatens, by an act or 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
“(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.”
The first point to keep in mind with these two related sections is that force doesn’t actually have to be physically applied. The second point to note is that such alleged assaults by “attempts” or “threats” must be based on more than just words. Such assault charges require that the accused made a related movement or gesture and had the ability to carry out the threat. Last, know that “intent” has no legal bearing within the scope of such charges, and thus cannot play a role in the defence.
All assault charges are tried under the parameters of Criminal Code Section 265 (1), but, as previously noted, there are a wide variety of different assault charge types. With the exception of aggravated assault, courts can address assault charges as either a summary offence or indictable offence. The Criminal Code automatically treats aggravated assault as an indictable offence. The most common types of assault include:
Simple Assault— Also referred to as “common assault” this form of assault is indeed the one most commonly charged. Most simple assaults are caused by physical altercations such as fistfights and domestic disputes that turn physical. Attempted or threatened assaults as defined by the Criminal Code also fall under this category. Crown prosecutors rarely seek jail time for those found guilty, especially for those charged with assault as a first-time offence.
Domestic Assault — involves any assault that takes place between two people who are currently or formerly in a domestic relationship. Domestic assault charges can lead to more serious penalties than simple assault.
Sexual Assault — can include everything from inappropriate touching to rape. Penalties, that can include jail time and mandatory inclusion on the sexual offender database, with a guilty finding are typically based on how extensive the physical element of the assault was and other factors relating to the accused and relationship with the victim.
Aggravated Assault— this type of assault is charged as an indictable offence based on any aggravating factors that impacted the victim and/or general public. Such aggravating factors can include serious injury, disfigurement, and the use of a weapon. Guilty findings in aggravated assault cases often result in severe penalties, including significant prison sentences.
Assault Causing Bodily Harm— as implied by the name, used to refer to assaults that cause physical harm. Even if not upgraded to an aggravated assault, guilty findings can lead to severe penalties, including jail or prison terms.
Assault With a Weapon— Used to define assaults that involved a weapon and physical harm. If not upgraded to aggravated assault, guilty findings can still lead to severe penalties, including jail or prison terms.
Assault Against a Police Officer— As “peace” officers, the Crown does not take kindly to people who assault the police, so guilty findings with these charges typically result in more severe penalties than simple assault.
If warranted, police and/or the Crown may charge assault suspects with more than one assault charge, such as by combining domestic assault with sexual assault. Assault charges can also be combined with any other offences that may have been committed during the incident, such as property destruction. Such additional charges naturally increase the burden of strategizing a successful defence.
Whatever the assault charge(s), skilled criminal trial lawyers carefully examine all elements of the case to determine how to beat the charges or achieve the most favorable outcome possible. Experienced trial lawyers are highly adept at strategizing effective defence initiatives that can lead to acquittals, withdrawn charges, reduced charges, mitigated penalties, or dismissal. The most common assault defence strategies include:
Self Defence is covered under Section 34 of the Criminal Code with provisions that allow a finding of not guilty if the defence can show:
A lack of intent defence strategy can be deployed if the lawyer believes they can prove to the court that the assault was not intentional and/or was caused by a reflexive reaction to external stimuli.
The raising of reasonable doubt strategy is effective because the legal concept of “beyond a reasonable doubt” is so crucial in establishing a finding of guilt in criminal cases. Skilled criminal lawyers will always question any element of a Crown’s case that may raise doubts about the evidence. For example, conflicting testimony about how the assault actually occurred may raise doubt. While one such discrepancy alone might not lead to an acquittal, the more such doubts that can be raised, the weaker the Crown’s case becomes.
Consent for the use of force may be raised as a strategy in assaults that occurred as the result of a fistfight. This tactic generally relies on proving the concept that it “takes two to tango” in an effort to mitigate the accused’s culpability in the assault.
Plea bargain negotiations for reduced charges can be used whenever defense lawyers see potential evidentiary or procedural flaws in the Crown’s case. This strategy is often pursued when the defence doesn’t see a clear path to acquittal or dismissal of the charges.
Because a suspect’s Charter Rights are considered highly important to the Crown as they ensure fair and just application of the law, judges will readily exclude relevant evidence connected to such violations and may dismiss charges based solely on Charter Rights violations. Procedural mistakes by police and prosecutors can also lead judges to exclude evidence from the case.
With careful examination of all elements of each client’s assault charges in the Toronto area, the criminal trial lawyers at Mass Tsang are dedicated to seeking the most favorable outcome possible for those charged with assault in Ontario. Mass Tsang lawyers have successfully defended thousands of Toronto-area assault cases and have a stellar record in securing favorable outcomes for their clients.
If you or someone you know is facing assault charges in the greater Toronto area, contact the expert lawyers at Mass Tsang today for a free consultation.
