Assault - Criminal Defence Lawyer Toronto, Brampton, and Newmarket

What is an assault?

There are many different ways in which an assault can occur. The slightest intentional application of force without the consent of the other person is an assault. An assault can also occur when a person attempts to assault another or threatens to do so without the consent of the other person. The actual definition can be found at Section 265 of the Criminal Code of Canada

Potential Penalty:

i) If the Crown proceeds by way of Indictment, the maximum jail sentence allowed is 5 years.

ii) If the Crown proceeds by way of a summary conviction, the maximum jail sentence is 6 months.

Can a “tap” or “push” be considered an assault?

An injury need not occur for an assault to be committed. The force used must be offensive in nature with an intention to apply force. Therefore, in certain circumstances, a “tap”, “pinch”, “push”, or other minor physical action can be considered an assault. An accidental application of force is NOT an assault.   

Why are there so many different types of assault charges such as assault causing bodily harm, assault with a weapon, and aggravated assault?

Assault Causing Bodily Harm

Bodily harm is an assault that causes a bodily injury that is not trifling in nature but it does interfere in some way with the injured party’s health or comfort. The Crown must prove that the accused individual objectively foresaw the bodily harm or other consequences of the assault.

Potential Penalty:

i) If the Crown proceeds by way of Indictment, the maximum jail sentence allowed is 10 years.

ii) If the Crown proceeds by way of a summary conviction, the maximum jail sentence is 18 months.

Aggravated Assault

For an assault to fall under this definition, the injury sustained must have wounded, maimed, disfigured, or endangered the life of the assaulted individual. The Crown must prove that the accused individual objectively foresaw the bodily harm or other consequences of the assault.

Potential Penalty:

 i) The Crown can on proceed by way of Indictment and the maximum jail sentence allowed is 14 years.

Assault with a Weapon

If a weapon is used (such as a knife, stick, pipe, bat) to assist in an assault, a person can be charged with assault with a weapon. It does not matter if the weapon used is trifling in nature (for example a pillow). What is required is an application of force using the item as a weapon to further the assault.

Potential Penalty:

i) If the Crown proceeds by way of Indictment, the maximum jail sentence allowed is 10 years.

ii) If the Crown proceeds by way of a summary conviction, the maximum jail sentence is 18 months.

Sexual Assault

Sexual assault is an assault of a sexual nature which is committed in a way that the sexual integrity of the victim is violated without the consent of the individual. Being convicted of a sexual assault can permanently impact the life of the person charged. Sexual assault is defined in Section 265(2) of the Criminal Code of Canada. The difference between sexual assault and non-sexual assault is relevant is in relation to the accused individual’s mindset at the time of the alleged sexual assault. Being reckless alone is not enough to constitute a sexual assault.

Potential Penalty:

i) If the Crown proceeds by way of Indictment, the maximum jail sentence allowed is 10 years.

ii) If the Crown proceeds by way of a summary conviction, the maximum jail sentence is 18 months.

What distinguishes an assault from a sexual assault?

The court will look at what part of the body is being touched when determining if an assault was sexual in nature. Also important is the situation in which the specific body part is being touched, the nature of the contact, any words said during the contact, and any other circumstances.  

How do you define “Consent” and does it only apply to sexual assault cases?

Consent is defined as the voluntary agreement of the parties to have engaged in the sexual activity. It does not only apply to sexual assaults. A person who strikes another, thus normally committing an assault, can be found not guilty of the assault if the person who is assaulted consented to the fight. This can be done through words or gestures directed at the other person.

There are many situations when an individual cannot give their consent and they can be found in Sections 265(3) and 273.1 of the Criminal Code of Canada:

i.                    where there is an application of force on the person alleging the assault or another person to force the consent;

ii.                  threats made or fear there will be an application of force if consent is not given;

iii.                if the person giving consent does so under fraudulent information (for example, if two people agree to have sexual intercourse after they tell one another that they have no sexually transmitted diseases despite one of them knowing that in fact he/she does have a sexually transmitted disease);

iv.                 if the person seeking consent is exercising their authority over the other individual (for example a boss forcing an employee to sleep with him/her or risk losing his/her job);

v.                   a person cannot consent to another person fighting (for example, I cannot consent to my friend fighting with another person);

vi.                 if the person who gave the consent is incapable of consenting to the activity (for example, if a person is intoxicated or mentally ill, that person may not be able to provide consent);

vii.               if the accused induces the other person to engage in the activity by abusing a position of trust, power or authority;

viii.             the person expresses, by words or conduct, a lack of agreement to engage in the activity;

ix.                 the person, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity (for example, a person who at one time consented to the sexual activity has the right to revoke that consent. At that point, there is no longer consent to engage in the activity); or

x.                   If the person is under 16 years of age, he/she cannot provide consent (though there is a close-in-age exception to this rule which means that someone who is 14 can have sex with someone who is less than five years older than him/her).    

A person can mistakenly believe that consent was provided even when no consent actually existed. The person must honestly believe, even though mistaken, that the sexual activity was consensual. This can be raised if it is established by the accused individual that the person alleging the assault communicated the consent through his/her words or gestures. This defence cannot be raised if the mistaken belief in consent arises out of self-induced intoxication (where the person accused of sexual assault freely drinks enough alcohol to become intoxicated), where he/she is reckless or willfully blind (for example, where an accused individual continues sexual conduct after the person alleged to have been assaulted indicated that he/she did not want to have (or continue) sexual contact), or where a person alleged of sexual assault does not take the necessary steps to determine that the person alleging the assault was consenting. 

Generally, the court will first ascertain the circumstances known to the accused individual at the time. The court will then look at what steps, if any, a reasonable person in the same circumstances, knowing the same things, would have taken before proceeding with sexual activity. In light of this assessment, the court will then look at the accused individual’s conduct to determine if there was an honest but mistaken belief that consent existed.

I’ve been accused of sexual assault by someone I am in a relationship with. Does it matter that we have had sex before?

A person who consented to sex can withdraw that consent at any time. Prior consent does not mean she consented every time. Defence counsel are not freely permitted to question a person alleging sexual assault about their past sexual history. An application must be made in court before questions can be posed about her prior sexual history. After a successful application, defence counsel may be able to ask questions about the accuser’s prior sexual history and view the individual’s psychiatric or medical records to use them to show the court why the credibility of the accuser should be questioned.

In marital relationships, the Crown is generally required to establish that in the context of the entire marital relationship, and in the context of the particular situation, the statement of “no” to the sexual activity differed from the way the two individuals historically interacted for a sexual purpose and that the accused individual should have known from such different behavior that the rejection of sexual activity on the specific occasion where the sexual assault is alleged was different from the way the parties interacted sexually in the past. It must be remembered that a person can withdraw their consent at any time.

The Crown said I committed a Domestic Assault. What is that?

The criminal justice system has changed in its approach to domestic assaults. A domestic assault is an assault that takes place between two people who are either currently or formerly dating, in a common law or married relationship, children, parents, or relatives.

The Crown Attorney’s practice memo (PM [2002] No. 4) states that in domestic violence offences, Crowns should take a position on judicial interim release that ensures, to the fullest extent possible, the protection and safety of the victim and family and a prevention of further offences.  The memo recommends that Crowns give careful consideration to seeking a detention order.  It places a heavy responsibility on Crown counsel to exercise his or her discretion in an informed manner by gathering the necessary information to make this decision, and provides a checklist of risk factors to be addressed. As a result of this memo and general policy, Crown attorneys handle domestic assault cases in a much more serious manner and their approach is to proceed with these cases in a much more vigorous manner. The reason for this is the notion that abused individuals will return to their alleged abuser and will be subjected to further violence. For this reason, Crown Attorneys regularly do not consent to the release on bail of those accused of domestic violence (for more information on bail hearings, click HERE).

If released on bail, oftentimes, conditions will be placed on the individual accused of domestic violence that prohibit him/her from having any contact with the alleged victim and on occasion, his/her family. This is regardless of whether the person alleged to have been assaulted wishes contact or does not want the Crown to proceed with the charges. This is why you should consult with a lawyer to discuss your case.

If charged with an assault of a domestic nature, there may be many options available to you including counseling, a domestic assault program called “PARS” or “Early Intervention Program.” There are benefits and sometimes consequences to entering these programs. A lawyer can explain these to you in great detail as you are often required to enter a plea of guilt to be eligible for the programs. 
My priority in domestic assault situations where the person alleged to have been assaulted wants to restore contact with the person charged with assault is to try to vary the bail conditions to allow contact with one another (for more information on bail variations, click
HERE). To do this, I often first discuss the case with the Crown Attorney. If he/she is not agreeable to changing the conditions, an application can be brought in the Superior Court to seek a judge’s determination on whether the bail conditions should be varied. I may also discuss the possibility of the Crown agreeing to withdraw the charges either outright or after some steps are taken to rectify what appears to be a problematic situation in the relationship in a manner agreeable to all parties.

 

The sentence imposed by a judge upon a finding of guilt will depend on a multitude of factors including the degree of harm caused by the assault.

If you have been charged with an assault, assault with a weapon, assault cause bodily harm, or aggravated assault, you should consult a lawyer to discuss your case. Click HERE to contact Jeff Hershberg for a free consultation.