Assault Lawyers

What is Assault?

Classified according to type (such as simple, aggravated, weaponed, domestic, sexual and violent) and resulting damages, assault under Canadian criminal law describes any intentional non consensual application of force, ranging from implicit threats to bodily harm resulting in hospitalization. 

Assault charges may be laid in the absence of physical violence. Simply the intent to use force is required. But while the use of force need not be physical, the use of words alone may not amount to an assault charge.

Assault charges require a gesture indicating your will and ability to follow through with a threat. The victim must also reasonably believe you will carry out your intent to use physical force.

Simple assault

Often referred to as “common assault”, simple assault is the most common assault charge. It occurs when no weapon is used and injuries sustained are minor. Simple assault results from physical altercations like fistfights and physical domestic disputes, as well as attempted or threatened assaults. Simple assault charges are usually laid in absence of physical injury. A push, shove, slap, or even a punch that isn’t injurious may all be charged as simple assault.

Assault causing bodily harm

When notable injuries occur as the result of an assault, a charge of assault causing bodily harm may follow. Bodily harm is generally defined as something that is neither trivial nor transitory and may include anything from minor skin lesions to broken bones. Assault causing bodily harm can be prosecuted as either a summary or indictable conviction, which carry maximum penalties of 18 months’ and ten years' imprisonment, respectively. 

Assault with a weapon

Assault with a weapon describes assaults involving weapons that cause physical harm. Since virtually anything can be turned into a weapon, you may face this charge if you use an item to assault someone. Assault with a weapon may be prosecuted as either a summary or indictable conviction, which carry maximum penalties of 18 months’ and ten years' imprisonment, respectively. 

Aggravated assault

The most serious of the non-sexual assault offences, a charge of aggravated assault is laid when injuries suffered are particularly serious. Aggravated assault focuses on the result rather than the means by which an assault is carried out, and occurs when you wound, maim, disfigure or endanger the life of the complainant. A purely indictable offence, aggravated assault is punishable by up to 14 years' imprisonment.

Domestic assault

Domestic assault encompasses the unwanted application of force over individuals in the same household and current or former intimate partners. While not a separate offence, domestic assault is considered an aggravating circumstance on sentencing and can lead to more serious penalties than simple assault. The Crown will seldom withdraw nor permit the victim to drop domestic assault charges.

Assaulting a Peace Officer

While the elements of assault (simple, weaponed, violent, or aggravated) remain the same, there are additional considerations for assaults involving a Peace Officer. Charges of assaulting a Peace Officer arise when the complainant is a Peace Officer or a person acting in aid of such an officer, and when the Peace officer is engaged in the lawful execution of their duty. 

For a charge of assaulting a Peace Officer to stand, the officer must have been acting within the limits of their authority at the time of the alleged assault. If, for example, an Officer were assaulted while unlawfully arresting someone, the perpetrator would not be guilty of assaulting a Peace Officer. 

Where assaulting a Peace Officer corresponds to simple assault, it can be prosecuted as either a summary or indictable offence with maximum penalties of 18 months and five years in prison, respectively. Assaulting a Peace Officer with a weapon or causing bodily harm are also hybrid offences. These offences carry a maximum penalty of 18 months' imprisonment when charged summarily, or up to 10 years in prison when charged indictably. A purely indictable offence, the aggravated assault of a Peace Officer is punishable by up to 14 years in prison.

Assault in the Criminal Code of Canada

Dealing with simple assault, Section 265 of the Criminal Code states that a person commits an assault when

1. without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
2. he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
3. while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

Section 267 of the Criminal Code classifies assault based on the way it is committed or the result of the application of force.

Section 267 of the Criminal Code states that every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on summary conviction who, in committing an assault

1. carries, uses or threatens to use a weapon or an imitation thereof,
2. causes bodily harm to the complainant, or
3. chokes, suffocates or strangles the complainant.

Dealing with assault of a peace officer, Section 270 of the Criminal Code states that everyone commits an offence who

1. assaults a public officer or peace officer engaged in the execution of his duty or a person acting in aid of such an officer;
2. assaults a person with intent to resist or prevent the lawful arrest or detention of himself or another person; or
3. assaults a person
1. who is engaged in the lawful execution of a process against lands or goods or in making a lawful distress or seizure, or
2. with intent to rescue anything taken under lawful process, distress or seizure.

Assault Charges

Upon an allegation of assault police may proceed to recommend charges to Crown Counsel — regardless of the complainant’s wishes. Indeed, it’s Crown Counsel, not police nor complainants, who lay charges in British Columbia. 

In cases of domestic assault, Crown Counsel generally proceeds with prosecution, even if the complainant does not wish to cooperate with the investigation. Complainants therefore often seek legal advice to determine how to best navigate the criminal process and liaise with Crown Counsel.

When you are charged with assault, you will either be released by police or held for a bail hearing. Conditions will be imposed on your release regardless of whether you appear before a Justice of the Peace or are released by police.

Assault Bail Conditions

So long as you lack a history of violence, the court can usually be satisfied that releasing you from custody before trial is safe and appropriate. Your problem then becomes navigating the restrictive bail conditions imposed on your release.

Your bail conditions may require you to:

• Avoid all contact with the complainant
• Abstain from all direct or indirect communication with the complainant
• Avoid the complainant’s residence, business, school, place of worship and other frequented establishments
• Surrender all weapons and firearms and any related authorizations
• Not be in possession of any weapons, including knives (except for the consumption of food)
• Abstain from alcohol and non prescription drugs
• Demonstrate law abiding behaviour
• Abide by a curfew
• Provide your current address to the court (and notify the Court of any address changes)

Factors that may affect your bail conditions include your:

• Alleged assaultive behaviour
• Likelihood of attending court
• Criminal history
• History of drug and alcohol use 
• Physical state
• Mental condition
• Employment situation
• Living situation
• Standing in the community

You will not be allowed to return to your home if the complainant lives with you — even if you own the property and the complainant merely lives with you. This means that you will not be able to coordinate bill and utility payments or financial arrangements.

In certain circumstances bail conditions can be varied, but this takes time and negotiations with the Crown. Bail conditions must be complied with unless and until they are varied lest you be charged with breaching bail and jailed.

Assault Penalties

Penalties for assault depend on the type (such as simple, aggravated, weaponed, domestic, sexual, or violent), manner and toll (physical or emotional) of the assault. In determining what sentence to seek, the Crown will assess the extent of the assaultive behaviour and the circumstances from which it arose. 

Penalties for Simple Assault

• Up to 18 months’ imprisonment if charged summarily
• Up to ten years’ imprisonment if charged indictably
• Possible revocation of immigration status
• Probation
• Criminal record

Penalties for Assault with a Weapon and Assault Causing Bodily Harm

• Up to 18 months’ imprisonment if charged summarily
• Up to ten years’ imprisonment if charged indictably
• Possible revocation of immigration status
• Fines
• Probation
• Criminal record

Penalties for Domestic Assault

• Up to 18 months’ imprisonment if charged summarily
• Up to ten years’ imprisonment if charged indictably
• Automatic arrest and jailing until your bail hearing
• Bail conditions forbidding your return to your residence (regardless of whether the complainant requests otherwise)
• Bail conditions forbidding contact with the complainant or their children (regardless of whether the complainant requests otherwise)
• Possible revocation of immigration status
• Probation
• Criminal record

Penalties for Aggravated Assault

• A purely indictable offence, aggravated assault is punishable by up to 14 years’ imprisonment
• Probable prison time
• Possible revocation of immigration status
• Significant fines
• Compensation to victim
• Loss of right to possess weapons
• Probation
• Criminal record

Defending Assault Charges

Assault allegations require immediate legal attention. Outcomes in assault cases can depend as much on the circumstances of your case as on the lawyer you hire. 

Retaining Pender Litigation puts not only a skilled assault lawyer by your side, but our entire team at your back, bolstering your defence with our collective insight, experience and expertise. 

Ways our firm can assist you include:

• Diverting your case from the court process via an alternative measures program
• Diverting your case from the court process via peace bond
• Defending you at trial
• Sentencing

Alternative measures programs

You may be considered for an alternative measures program on your first offence if the charges against you are minor and you admit to and take responsibility for your actions. Overseen by community probation offices, alternative measures programs divert your case from the court process. Alternative measures programs give you the opportunity to make amends through an agreed upon set of steps. If these steps are taken, your charges will be withdrawn and you will not receive a criminal record.

Alternative measures may include:

• Compensation for the loss or damage
• An apology
• Community service work
• Culturally-based practices for Indigenous people

Peace Bonds

For less severe assaults, you may be permitted to enter a peace bond. A statutory peace bond may be used when you enter an agreement in return for the Crown Attorney withdrawing charges. Peace bonds are not an admission of guilt, but an acknowledgment the complainant had reasonable grounds to fear for their safety, or the welfare of their child, intimate partner, or property. Upon signing a peace pond, your charges are withdrawn and you do not gain a criminal record.

Statutory peace bonds require you to agree to certain conditions for a length of time not exceeding one year. Conditions may include:

• Law abiding behaviour
• Surrendering weapons and firearms
• Attending anger management counselling
• Abstaining from alcohol
• Avoiding direct and indirect communication with the victim
• Avoiding the victim’s residence, business, school, place of worship and other frequented establishments
• Reporting to a probation officer

Assault Trial Defences

Should your case go to trial, defences to assault charges include (but are not limited to):

• Challenging the complainant’s credibility: Sometimes allegations of assault are inflated or invented. A careful examination of the complainant’s credibility and other evidence, including witness testimony, video footage, and phone and electronic records, may be sufficient to level the charges against you.
• Self defence: To successfully argue self defence, you must demonstrate 1) force was used, or would foreseeably be used, against you; 2) the sole purpose of your response to the force or threat of force was defending yourself; and 3) your response was reasonable and proportionate given the context from which it arose.
• Reflexive action: Reflexive actions occur involuntarily in response to external stimuli. Since assault is the intentional application of force, an action shown to be involuntary or reflexive should not yield a criminal conviction.
• Defending another person: Provided the response was reasonable and proportionate, threatening or using force to defend another person should not yield a criminal conviction.
• Defending your property: Provided the response was reasonable and proportionate, threatening or using force to defend your property is sometimes appropriate. 
• Complainant consent: While one cannot consent to physical harm, most assault charges are laid in absence of physical violence. Crown Counsel must demonstrate beyond a reasonable doubt that the complainant did not consent to your use of force. 
• Accidental use of force: Assault is the intentional application of force. So long as it was not reckless, an unintentional or accidental application of force should not yield a criminal conviction.
• Corrective force: Corrective force is force applied against an individual for corrective purposes by a parent or guardian. Generally invoked in cases involving children, this defence is voided by the use of a weapon, or when lacerations or bruises are sustained.
• Violations of the Charter of Rights and Freedoms: Speaking with the police can be detrimental to your case as your statements can be used as incriminating evidence at trial. Charter applications, motions that detail the ways in which police violated your Charter rights in a criminal investigation, can be used to seek the exclusion of this evidence. Violations that may be argued in your defence include searching your car without permission and not letting you speak with a lawyer.
• Innocence: Crown Counsel must demonstrate beyond a reasonable doubt that you were indeed there and committed, or intended to commit, the assault. Assault charges require a gesture indicating your will and ability to follow through with a threat. The victim must also reasonably believe you will carry out your intent to use physical force.

Sentencing

If your case cannot be resolved by way of an alternative measures program, peace bond, dismissal or acquittal, we can negotiate sentencing options with the Crown, helping you avoid a criminal record, or ensuring your freedom is minimally curbed upon sentencing.

Learn About Assault

• What is Assault?
• Assault in the Criminal Code of Canada
• Assault Charges
• Assault Bail Conditions
• Assault Penalties
• Defending Assault Charges