What is an ‘Assault’?
To understand how you may be able to fight your assault charges, it’s important to understand what an ‘assault’ is in Ontario law. Typically speaking, an assault is the intentional application of force, no matter how slight, on an individual without his or her consent. However, assaults don’t always require force; an assault can also include words, acts or deeds that might reasonably lead someone to fear that a use of force is coming. This can be something as trivial as a tap on the arm or a fake punch that was never meant to connect or something much more serious.
Those who are charged with assault can seek the help of a lawyer that can help them build their best defence. In many cases, the concept of “self-defence” is brought up. As per section 34 of the Canadian Criminal Code, self-defence can be raised if the accused had a reasonable belief that force was used against them, where the assault was committed as a form of protection for oneself or for someone else, and where it is reasonable in the circumstances. Other factors that the court might consider include the nature of the force itself, whether other alternatives were available to respond to the potential use of force, whether a weapon was involved, and the size/age/gender/physical capabilities of the alleged assailant. However, if an act of self-defence is found to exceed the amount of force which was actually necessary to defend oneself or others, the defence may fail.
Consent fight can also be an effective defence, at least when no injuries have resulted.
It can be said that although certain assault charges may require a trial, many criminal charges are actually dropped, reduced or dismissed prior to going to the courtroom for the final time. Typically, a Crown counsel prosecutes the charges first, but the judge or a jury may not agree with the Crown’s decision, and may acquit.
In many cases, criminal defence lawyers can also negotiate the charges and either have them dropped or reduce them in such a way that does not leave the accused with a criminal record.
Among the large scope of assault crimes, there are certain offences that are seen as more serious than others. You may have heard of certain types including domestic assault and sexual assault. However many more exist.
What other kinds of assault exist?
Under section 265 of the Criminal Code, ‘assault’ is loosely defined. In terms of a ‘general’ assault charge, these can be seen as the use of force or attempted use of force on another person. It does not matter whether any actual harm was incurred. Depending on the circumstances of each case, the Crown can elect (choose) how it will prosecute the accused. For less severe assault charges, a summary offence (misdemeanor in American TV terms) may be pursued. However, for more severe assault charges, these might be seen as indictable offences (felony) and require a trial. In any case, for an accused to be found guilty of assault, the onus is on the Crown to prove that the use of force was intentional, that the complainant did not consent to this force, and where the complainant did not assault the accused first.
An ‘aggravated assault’ could be seen as a more severe form of the general assault charge, and include the same elements alongside additional factors. As defined in section 268 of the Criminal Code, this type of charge involves situations where someone “wounds, maims, disfigures or endangers the life of the complainant.” Prior case law has shown us that these words have been defined for legal use by judges. For example, ‘wounding’ would require some kind of breakage of the skin, which might have caused bleeding. ‘Maiming’ could occur where harm is inflicted and the victim becomes less capable of fighting back. This might include bones breaking, or major organ damage. Lastly, ‘disfiguring’ is any injury which causes permanent damage to someone’s physical appearance, such as a scar. Given the severity of these charges, all cases of aggravated assault are seen as indictable and proceed to a trial. An example of aggravated assault is if someone lost an eye after being ‘bottled’.
Assault With a Weapon
Under section 267 of the Criminal Code, it is a crime to commit an assault while the person “carries, uses or threatens to use a weapon or an imitation thereof.” The main difference between this type of assault and the more general type is that the attempted application of force here was applied using a weapon. This means that the accused did not merely strike the other individual with a component of their body. While weapons are more commonly guns, knives, and baseball bats it can include much more trivial facts such as throwing a Dixie cup of water or newspaper at someone! The penalty for such lesser events tends to be very minor and generally they can be disposed of without a plea of guilty.
Did you know you can be charged for behaviour that inconveniences or upsets another person? If that behaviour is deemed ‘criminal,’ it might be considered as criminal harassment, which is its own charge in our Criminal Code. To figure out whether or not someone’s conduct was “criminal,” one factor that might be considered is whether the conduct is repetitive, or how serious it is. To illustrate, imagine that you accosted an individual over the phone and that individual was to ask you to cease and desist from ever contacting them again. If you still chose to attempt to contact that person, that would likely result in and justify a charge of criminal harassment. Some people have difficulty letting go of a relationship. Twenty emails, texts, and telephone calls a day can lead to this sort of charge.