QUICK TAKEAWAY
Serious Assault: Violent crime, including assault, accounted for about one-fifth Criminal Code offences reported to police in 2019, according to Statistics Canada. Ranging from simple to aggravated assault, the offence can include everything from spitting on a person to using a weapon to cause an injury. A threat that causes someone to believe they may suffer a physical injury can also result in assault charges. If you are facing any assault charge you could face imprisonment since the threat or use of violence is taken seriously by the judicial system.
Table of Contents:
What is Assault?
The Criminal Code deals with the charge of assault starting at s.265 and states that you can face prosecution if you apply intentional force directly or indirectly on a victim without their consent.
You can also be charged if you threaten, either by act or gesture, to apply force to another person or if you confront someone while openly wearing or carrying a weapon or imitation weapon.
It is important to remember that even a push can land you in front of a judge. You don't have to physically touch someone to face assault charges.
The charge is broken down into domestic or non-domestic categories. If you assault someone you are in a relationship with, you could be charged with domestic assault, which is treated more seriously. Relationships can include boyfriends, girlfriends, common-law partners or spouses. The incident can be handled as a domestic assault even if the relationship has ended. Although there is no specific charge of domestic assault, any such assault is treated more seriously by the justice system because domestic abuse is widespread, and there is a risk that it can escalate unless dealt with effectively.
Types of Serious Assaults
Assault causing bodily harm
If a person has suffered injuries because of something you have done, you can face a criminal trial for assault causing bodily harm. Those injuries can range from a few scratches to broken bones.
Bodily harm is defined in the Code as "any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature." A trifling injury means one that is insignificant or petty, while transient implies something that will pass with time.
Assault with a weapon
As the name implies, this charge can be laid if a weapon is used in an assault. Depending on how it is utilized, a weapon can be anything from a fork to a gun. If you throw a glass that hits someone, you could face charges. Both assault with a weapon and causing bodily harm are covered under s.267 of the Code.
Aggravated assault
If someone is wounded, maimed, disfigured, or their life is endangered, and you are responsible, you could be charged with aggravated assault. It is the most serious form of assault and an indictable offenceIndictable offences are more-serious criminal offences in Canada under s.268 of the Criminal Code.
What sets aggravated assault apart from other types of assault is the severity of the injuries inflicted. It should be noted that while endangerment to life must involve an actual risk, it does not necessarily have to result in bodily harm.
What is Needed to Convict
To gain a conviction, the Crown prosecutorLawyers who prosecutes charges on behalf of the Crown must prove beyond a reasonable doubtThe standard that must be exceeded to find someone guilty that you:
- applied force to someone
- the victim did not consent to that force
- the force was applied intentionally.
If you are accused of assault, your defence lawyer might submit evidence to show your actions were not intentional. There could also be reasons why your arrest was not lawful under the Canadian Charter of Rights and Freedoms.
Suppose you were acting in self-defence and did not mean to inflict grievous harm; you could be acquitted. As well, implied consent could be used in a defence if an injury occurred during a fistfight if it can be proven the victim willingly participated.
You can also not be convicted of aggravated assault if your actions were taken to protect yourself, your property or other people and their property.
The Crown must establish an intent (mens reaHaving criminal intent, knowledge, or recklessness) to cause bodily harm. They don’t need to prove there was an intent to maim, wound or disfigure.
Summary or Indictable Offence
If you face trial for assault causing bodily harm or assault with a weapon, the Crown can proceed with the charge as an indictable offence, and you would face imprisonment. The prosecutor could deal with the offence as a summary conviction with less severe punishment.
The Crown will consider such factors as the seriousness of the incident and your prior criminal record when deciding how to proceed.
Aggravated assault is treated as an indictable offence, bringing harsher penalties.
Penalties for Assault
You can face a maximum penalty of 18 months in jail if you are convicted of the summary offenceLess-serious criminal offences of assault causing bodily harm or assault with a weapon. If those charges proceed by indictment, the maximum penalty is a prison term of 10 years.
Aggravated assault brings a maximum prison sentence of 14 years. You could also face a fine, a combination of prison and probation, an intermittent sentence, and a victim fine surcharge.
If you are convicted of aggravated assault, you will be subject to a mandatory weapons prohibition order pursuant to s.109 of the Code and a mandatory weapon forfeiture order under s.491.
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Shellie Addley Barrister and Solicitor.
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Keli D. Mersereau Criminal Law Office
Glossary of Legal Terms
Crown prosecutor
Lawyers who act for the federal, provincial and territorial governments and prosecute people accused of crimes on behalf of the Crown.
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
Mens rea
Mens rea refers to having criminal intent, knowledge, or recklessness since the person is aware of their misconduct. The literal translation from Latin is "guilty mind." The Crown needs to show that the accused had mens rea to win a conviction.
Reasonable doubt
The Supreme Court of Canada has said that reasonable doubt “falls much closer to absolute certainty than to proof on a balance of probabilities” and “that something less than absolute certainty is required, and that something more than probable guilt is required."
Summary offence
Summary offences are less-serious criminal offences such as disturbing the peace or unlawful assembly