Calgary and Edmonton Lawyers Specializing in Crimes of Assault, Assault Causing Bodily Harm& Aggravated Assault
The enclosed article contains general legal information about defending charges of assault, domestic assault, assault causing bodily harm in Alberta. Those looking for specific information about a matter that is or about to be brought before the Courts should consult with a criminal defence lawyer immediately. This article provides legal information about the above captioned area for offences in Alberta. It is not intended to be used as a substitute for proper legal advice.
A. General Assault
The criminal case-law and Section 266 of the Criminal Code of Canada indicates that a person commits an assault when “without the consent of another person he applies force intentionally to that person, directly or indirectly.” In terms of the degree of force required to commit an assault, the touching may be minor, if done in an angry, revengeful, rude, or insolent matter. It should be notes that an assault may still be made out within the parameters of the law, when a person threatens to apply force to another person and has the ability to do so. However, some cases have held, that words unaccompanied by any act or gesture do not constitute an assault.
In general terms, the crown prosecutor, in seeking a conviction, will explore, am the following issues in your criminal trial: (i) the date and time of assault; (ii) Jurisdiction (i.e. was the alleged offence committed within the city limits of Calgary or Edmonton), (iii) the identity of the person who has been charged; (iv) Manner in which assault was occasioned against the victim or the complainant (i.e., blow by fist, open hand, club, chair, etc.0; (v) injuries (if any) sustained; (vi) that the alleged victim or complainant had not consented (see s. 265(3), (4) of the Criminal Code of Canada), (vii) whether or not complainant had not assaulted, threatened or provoked accused first; (viii) that the accused person, had applied force, intentionally, and that it was not done merely carelessly or by ‘reflex action.’ Please note that these are not exhaustive factors and each case may be very different on its facts.
B. Assault with a Weapon, Assault Causing Bodily Harm & Aggravated Assault
(i) Causing Bodily Harm
The Crown Prosecutor must prove the above noted elements of the offence that prevailrelative to a charge of assault. Apart from the abundantly obvious, one of the key differences between assault and assault causing bodily harm is that the consent is not an element (or defence) to the offence.
The Crown must prove, beyond a reasonable doubt, in accordance with section 267(1)(b) of the Criminal Code of Canada, that a person must “caused” bodily harm. Section 2 of the Code defines “Bodily harm” as”bodily harm” means “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”.
(ii) Assault with a Weapon
Generally, the difference between an assault and an assault with a weapon is the vehicle used to deliver the force. A weapon includes anything that fits the definition in s. 2 of “weapon”. This includes any object, which was used to cause injury to the complainant. For instance, courts have also found the following to be weapons: Broken letter openers; a cucumber; pellet guns etc.
(iii) Aggravated Assault
In order for an assault to meet the definition of an aggravated assault, the injury must be much more substantial. The definition of assault in s. 265 applies to this section, with the added factor that there must be a wounding, maiming, disfiguring or endangering of life of the complainant by the accused as set out in s. 268(1) of the Criminal Code of Canada. Section 268(3) states that for greater certainty “wound” and “maim” includes the mutilation of the labia majora, labia minora or clitoris of a person except for surgical procedures.
C. Powers of Arrest by the Police for Assault, Assault Causing Bodily Harm and Aggravated Assault
Since the above noted offences are indictable, a police officer can arrest if he or she has “reasonable grounds” to believe the assault occurred, as opposed to a strictly summary conviction offence where the officer must observe the offence to occur in order to arrest. s. 495. It is important to note that the police officer is only required to prove that there are reasonable and probable grounds to effect an arrest. At that juncture, the police are only forming their subjective opinions using the objective evidence that is before them. The threshold is not very high to effect an arrest. They police are not required to have secure enough evidence in their investigation to prove the case beyond a reasonable doubt. As such they are note required to render any credibility assessments (i.e. believe either the victim or yourself). It is the recommendation of most (if not all) criminal defence lawyers to
D. Domestic Assault
There is no specific definition for domestic assault in the Criminal Code of Canada. However, these matters are handled differently by the Crown Prosecutors office. The Crown Prosecutors offices in Calgary, Edmonton and in most major centers of Alberta) have specialized units that have dedicated resources to prosecute domestic crimes. Domestic crimes typically involve situations involving assaults with spouses, common-law relationship, children etc.
According to the “Domestic Violence Guideline”a document provided by the Alberta Attorney General, detailing how Crown counsel are to execute their duties in the context of a domestic criminal assault. This policy squarely deals with the oft-asked question: can the victim request that the charges be withdraw. It states: “charges in domestic violence cases should not be withdrawn solely at the request of the victim.” In situations wherein the victim changes their statement relative to the statement provided by at first instance to the police, the aforesaid Domestic Violence Guideline instructs crown prosecutors to rely on the following case from the Alberta Court of Appeal:
In R. v. Tkachuk 2001 ABCA 243, the Alberta Court of Appeal noted that victims of crime do not have the authority or the responsibility to decide whether a prosecution should proceed. The Court held:
“…that responsibility can only be discharged by qualified prosecutors who have the training, judgment and courage to make the necessary decisions inherent in every prosecution. … Many times these decisions will be difficult and even unpopular, but the responsibility for making them must always rest with the Crown and not with victims of crime, or other interested parties. Abdication of this prosecutorial responsibility to others who are interested in the outcome of the case, but have little or no understanding of the complexities, or even the basic tenets of our justice system, is wrong, and represents a serious threat to the fair administration of criminal justice.”
The Crown Prosecutor guideline further adds that “Where practicable the investigating officer should be asked to interview the victim to obtain further information to assist in assessing the genuineness of the recantation.” In Calgary and in Edmonton, the police and the crown work closely with specialized victim services units (I.e. HomeFront) to make such assessments (see: http://justice.alberta.ca/programs_services/criminal_pros/crown_prosecutor/Pages/domestic_violence_guideline.aspx )
Given the foregoing, it is imperative to retain an experienced criminal defence lawyer to obtain results on an expedited basis. Those facing charges in the context of a criminal domestic charge have their entire lives uplifted and emotions are charged. Often the person charged may be held in custody or released on the understanding that he or she is to have no contact with their significant other a condition of their release. This means that they may not be able to see their family and loved ones. An experience criminal lawyer will move expeditiously to resolve these matters, have your bail conditions varied to permit contact with your loved ones, and set the matter down for trial or to negotiate an early case resolution so that you can move on with your lives.
E. Defences to Assault, Domestic Assault, Assault Causing Bodily Harm and Aggravated Assault.
The Criminal Code of Canada posits a number of statutory defences. An “air of reality” must exists to these defences in order for them to be raised to expect any success. Section 34 is potentially applicable to instances of self-defence against anunlawful or unprovoked assault. It is a codified statutory defence in Criminal Law that provides as follows:
Section 34 states:
(1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.
(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if
(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and
(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm. [R.S. c.C-34, s.34.]
Sections 27, 34(1), 37, 39, 40, 41, 43 and 44 of the Criminal Code of Canada permit the use of reasonable force to prevent offences. However, s. 26 holds anyone so authorized criminally responsible for using excessive force. The determination of what steps or actions were reasonable in any particular situation is highly contextual requiring an assessment of mixed facts and law. The case law has held that no one facing imminent harm is expected to judge to “a nicety” the amount of force required. Notwithstanding the aforesaid, this can not justify the use of great force where lesser force would resolve the problem. The Courts will assess the proportionality of the force used and even if it was necessary in the circumstances. This would include removing yourself from a potentially violent situation before an assault occurs, verbal de-escalation, posturing, and physically defending oneself.
As stated above, consent may be a defence. Consent may be expressly given or implied. Often consent is implied; and this may be inferred from the factual circumstances surrounding the offence once the evidence at trial is adduced by the Crown Prosecutor or extracted by the defence lawyer in cross examination.
When you shake someone’s hand or pat a fellow employees back, generally there is an implied consent to do so. When consent is fraudulentlyprocured or produced by forceful measures the consent is vitiated. Furthermore and as stated above, no one may consent to being killed or seriously injured. Where a person intends, or actually causes, significant harm or death, consent is not an available defence as per the case law and the Criminal Code of Canada.
F. Penalties for Assault
In the event that you are found guilty, the range for penalty turns on a number of sentencing factors pursuant to section 715 of the Criminal Code. Generally, the Court will review any previous related criminal convictions and the degree of harm inflicted on the complainant prior to passing sentence. Accordingly, the matter may result in an absolute discharge, a conditional discharge, a probation order conditional sentence, a short to long jail term. It is clear that these matters must not be taken lightly. The entry of a criminal record may have dire consequences that affects other facets of your life.
If you have been charged with assault under section 266 of the Criminal Code of Canada, it is important to seek legal advice immediately to be informed of your rights and to form a litigation plan. Often the difference between winning and losing often depends on the first few steps one takes in criminal proceedings prior to being charged or shortly after being charged by the police.
Call 403-585-1960 or 1-888-695-2211 for a free initial consultation from one of our lawyers who have the experience to guide you through this process.