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 Toronto), (iii) the identity of the person who has been charged; (iv) the 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. The aforesaid are simply the elements of the offence that the Crown must prove beyond a doubt in a (domestic) assault matter in the Calgary Court system.   It is important to note, especially within the context of a domestic charge, resolution (without the entry of a criminal record) ought to always be canvassed through diversionary measures or formal/informal peace bonds.

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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 seek a disclosure review of the case against you to ensure that the all applicable defences are flushed out in your case.

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(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.

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The Amended Section 34 of the Criminal Code delineates the provision of Self-Defence

• 34. (1) A person is not guilty of an offence if
  • (a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
  • (b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
  • (c) the act committed is reasonable in the circumstances.

• Factors

  (2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
  • (a) the nature of the force or threat;
  • (b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
  • (c) the person’s role in the incident;
  • (d) whether any party to the incident used or threatened to use a weapon;
  • (e) the size, age, gender and physical capabilities of the parties to the incident;
  • (f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
  • (f.1) any history of interaction or communication between the parties to the incident;
  • (g) the nature and proportionality of the person’s response to the use or threat of force; and
  • (h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

• No defence

  (3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

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.

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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.

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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’s guidelines 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. 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.

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