There are a number of offences that
fall under the category of assault. In simple terms an assault
is defined as an unwanted touching.
are categorized as hybrid offences which can proceed either
summarily or by indictment at the discretion of crown counsel.
Typically crown will elect to have matters heard summarily when
they are more minor in nature however this rule of thumb does
not always hold true. the level of punishment for a summary
proceeding is typically much less than if the matter proceeded
charges of assault where there is no significant lasting injury.
Incidents that involve slaps, shoves, pushing, and light punches
typically fall under this heading of assault. The use of a
weapon or significant injury take an assault up from a simple
assault to more serious charges as discussed below. I have seen
charges of assault for incidents as minor as pushing and missing
with a punch.
Assault With a Weapon
As the name of
the charge implies this involves an allegation of an assault
while using a weapon. the definition of a weapon is very loose.
I have represented individuals charged with this offence where
the offending weapon was a sandwich. Like simple assault a
charge can be laid even if the complainant is not even struck.
For example throwing a pop can at someone but missing could lead
to a charge of assault with a weapon.
relates to an assault which leads to the bodily harm of an
individual. In order to be found guilty of this type of assault
there does not have to be an intention to cause the specific
type of injury that was caused but merely an intention to cause
non-trivial or non-trifling injury. The charge can also be
proven if a reasonable person in the circumstances should have
foreseen the risk of non-trivial or non-trifling harm that would
be caused by their actions. A charge of this type may negate the
defence of consent as the law states that a person cannot
consent to bodily harm.
Is an assault
which results in the wounding. maiming, or disfiguring of a
person or the endangering of a person's life. This type of
assault requires a specific factual finding to be made by the
court in order for a conviction to be found. Similar to assault
causing bodily harm there does not need to be an intention to
cause the specific injury to an individual for this charge to be
made out. Consent is not a defence to aggravated assault.
There are a
number of charges that fall under the heading of sexual assault
and related offences. Theses charges are described under
Sexual Offences. For a charge to
be included under a sexual assault there must be a sexual
component to the incident. This does not necessarily mean that
the purpose of the act was sexual in nature but rather there is
a sexual connection to the action.
This type of
assault is specifically related to a person in authority whose
role is to protect the peace. The most obvious example is that
of a police officer although there are many individuals who can
qualify as a "peace officer".
sentence for assault offences is 14 years in prison
R. v. P
- Sexual Assault, Sexual Interference
Client was charged with Sexual
Assault and Sexual Interference. Through the course of cross
examining the complainant, the client's ex-wife, it become clear
that the allegations were only made after the client had been
forced to go to family court in order to find where his children
had been taken by the ex-wife. The ex-wife had absconded with
the children to Saskatchewan from Ontario. In cross examination
it was revealed that the complainant was clearly lying on at
least two important details. As a result of the cross
examination crown counsel stayed the charges against the client.
R. v. J.
- Assault Police Officer
Client was charged with
Assaulting a Police Officer. The allegations made by the police
officer were that after stopping my client and requesting that
he exit his vehicle he became aggressive and attempted to strike
the officer and possibly tried to gain control of the officer's
firearm. As a result the client was tazered at least twice. At
trial the two officers provided conflicting testimony on cross
examination and I was able to submit that the Officer who
tazered my client may have misperceived the situation due the
charged atmosphere during the traffic stop. the client was
acquitted on all charges.
Youth - Assault With a Weapon, Assault, Mischief, Uttering
Client pled guilty to one
charge of Assault Weapon other charges were withdrawn following
negotiation. At the sentencing of the youth crown counsel sought
a short sharp custody sentence and because the offence is listed
as a primary compulsory offence the crown submitted that a DNA
sample of my client should be taken pursuant to the mandatory
provisions of the Criminal Code. During my submissions to the
court I argued that the client had no previous record and was
unlikely to commit future offences and as such the appropriate
sentence was a conditional discharge (not considered a criminal
record). I further argued that notwithstanding that the Criminal
Code made a DNA sample mandatory, that the compulsory provisions
of the criminal code in fact violated the principles of the
Youth Criminal Justice Act which is the primary Act when dealing
with young offenders. On sentence the judge agreed with my
submissions and ordered a Conditional Discharge and refused to
order the DNA sample be taken. Crown counsel later withdrew
their appeal of the DNA decision prior to it being heard at the
upper level court.
R v. H - Sexual Interference
was charged with Sexual Interference. Through cross-examination at trial I was able to
show the court that the crown witnesses had very differing stories on key points of
evidence as well as a motive for the witnesses to make up the
allegation due to a previous dispute with my client. My client was acquitted on all charges and one of the crown witnesses was
reprimanded for attempting to interfere with the evidence of another witness.
R. v. C.
- Domestic Assault and Uttering Death Threats
Client had been charged with
assaulting his wife by pushing her against the bed, throwing her
against a mirror, and grabbing her by the throat, as well as
telling her that he was going to kill himself but take her with
him. During cross-examination at trial the complainant wife
admitted that she had been continuing a extra-marital
relationship with a couple and that the client had expressed his
disagreement with the relationship. Complainant admitted that
she and the client were always telling each other that they
would kill another and that the client never actually struck out
at her but rather testified that the alleged actions were
similar to trying to contain an argument or self-defence. During
submissions I argued that that there were no realistic
threats given the history of the couples relationship and that
any reasonable person that was aware of the full nature of the
couples relationship would not have taken the words as a threat. The
court accepted my argument in full and the client was found not guilty on all charges and was able to
continue his career as a cross border truck driver.
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