Frequently Asked Questions
What is Assault?
How Does the Crown Prove an Assault Charge in Brampton?
What are some Defences to Assault in Peel?
-Defence of Person
-Defence of Property
What are the Penalties for an Assault Conviction in Brampton?
Assaulting a Peace Officer
Sexual Assault Law in Canada
Consequences of a Criminal Record
Keeping Charges Private
Travel & US Waivers
Vulnerable Sector Screening
Elements of a Crime
What is Assault?
The term assault is a broad term for a wide array of physical interactions. The offence of assault is outlined in section 265(1) of the Criminal Code. The Code states that a person commits an assault when:
- he, without the consent of another person, applies force intentionally to that other person, directly or indirectly;
- he, attempts or threatens, by an act or gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, the present ability to effect his purpose; or
- while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
As a result of this broad definition, a wide variety of interactions could be considered assault. On one end of the spectrum, threatening to punch another individual without actually making contact would constitute an assault in the complainant genuinely believed the accused could carry out the assault. On the other end of the spectrum are cases where an individual violently attacks another individual.
In addition to simple assault, section 267 and 268(1) of the Criminal Code also outlines the offences of assault with a weapon, assault causing bodily harm and aggravated assault. If an individual commits an assault and uses a weapon in the process, they may be charged with assault with a weapon. An individual may be charged with assault causing bodily harm where they cause physical harm to the complainant or chokes, suffocates or strangles the complainant. The most severe assault charge is aggravated assault. An accused may be charged with aggravated assault where the injuries to the complainant are significant. Specifically, section 268(1) of the Criminal Code states that an individual is guilty of aggravated assault where their assault maims, wounds, disfigures or endangers the life of the complainant.
Assault causing bodily harm, assault with a weapon and aggravated assault are all very serious charges and can lead to serious jail time in some circumstances. Our Firm has experience defending a variety of assault charges and can assist you in formulating the best defence for your charges to ensure you receive the best outcome.
How Does the Crown Prove an Assault Charge in Brampton?
To prove that an accused person is guilty of a simple assault the Crown must prove all elements of the offence as outlined in section 265(1) of the Criminal Code. The Crown must prove that the accused person directly or indirectly applied intentional force to another person without their consent. Alternatively, the Crown may also prove that the accused attempted or threatened, by an act or gesture, to apply force to another person and that that other person reasonably believed he had the present ability to carry out the assault. Essentially, the Crown has to prove that the accused made a legitimate threat to the complainant to carry out an assault and the complainant believed the threat. In a final alternative, the Crown may prove that the accused accosted, impeded or begged another individual while openly wearing or carrying a weapon or an imitation thereof. The Crown must only prove one of these alternatives to secure an assault conviction.
For more serious assault charges such as assault causing bodily harm, assault with a weapon and aggravated assault, the Crown will have to prove an additional element. To gain a conviction for assault causing bodily harm, in addition to proving that the accused intentionally applied force, either directly or indirectly, to the complainant without their consent, the Crown must also prove that the assault caused bodily harm to the complainant, or that the complainant was choked, suffocated, strangled, or their life was endangered.
To secure a conviction for assault with a weapon the Crown must prove that the accused applied force, or threatened to apply force, to the complainant, either directly or indirectly without consent, and that the accused used a weapon in the process. A common example of an assault with a weapon charge in Brampton is an individual hitting or threatening to hit another individual with an object such as a baseball bat or vehicle. In some cases, an individual may be charged with assault with a weapon for striking another person with a seemingly harmless object like a piece of clothing or a pillow. In situations where the accused has only threatened the complainant with the weapon and not actually struck them, the Crown must also prove that the complainant believed on reasonable grounds that the accused had the ability to carry out the assault. This can generally be accomplished through the statements or testimony of the complainant.
Finally, to prove the charge of aggravated assault the Crown must prove that the accused applied force to the complainant, either directly or indirectly, without their consent and that the complainant was wounded, maimed, disfigured or their life was endangered. The main difference between assault causing bodily harm and aggravated assault is the significance of the injuries.
All of these elements must be proven beyond a reasonable doubt and the burden lies solely with the Crown to prove all charges.
Defences to Assault in Brampton
If you have been charged with assault in Brampton the best defence to the charges against you will depend on the circumstances surrounding the case and the severity of the assault. There are generally four defences used to defend a charge of assault in Brampton. They include:
- Defence of Person
- Defence of Property
- Reflex Action
In rare circumstances an accused person will be able to argue that the complainant consented to the assault. The Criminal Code states that an assault occurs when an individual applies force to another individual without their consent. If the complainant did in fact consent to the assault, the accused cannot be convicted. To use this defence successfully the complainant will need to make a statement to police or testify at trial to confirm that they did in fact consent to the assault. This defence is generally only used in cases involving minor assaults. Under Canadian law an individual cannot consent to being seriously injured by another person.
Defence of Person
In Canada we have the legal right to use force to defend ourselves against an attack by another person. An individual who has been charged with assault may argue that they used force to protect themselves against an attack by the complainant. Individuals may only use the amount of force reasonably necessary to stop the attack by the aggressor.
Defence of Property
An individual who has been charged with assault may also use the defence of defence of property. In situations where the accused was in peaceful possession of property, and the complainant refused to leave, the accused may use the amount of force reasonably necessary to expel the other person from their property. This defence can only be used if the accused was in peaceful possession of the property and the complainant was not. To have peaceful possession of property the accused must have a legal right to possess that property.
Reflex action is a defence rarely used to defend assault charges. This defence may be used by an individual who is charged with assault where the accused struck the complainant in a reflexive action. An example would be if the complainant suddenly startled the accused and the accused reacted by hitting the complainant. To successfully use this defence the accused must demonstrate to the Court that they lacked the necessary intent to be found guilty of assault. Generally, this defence will not be available where significant injuries are sustained by the complainant.
What are the Penalties for an Assault Conviction in Brampton?
Being charged with assault can lead to very serious consequences for those who are convicted. Due to the broad definition of assault, the penalties imposed on those convicted of assault charges may vary significantly. Our Firm can assist you in developing the best strategy based on the facts of your case.
The offence of simple assault is a hybrid offence, giving the Crown considerable discretion regarding the maximum penalty that may be imposed on the accused upon conviction. In less serious cases the Crown will elect to proceed by summary conviction and the maximum penalty that may be imposed on the accused is six months’ imprisonment and/or a $5,000 fine. In more serious cases, the Crown will proceed by indictment and the maximum penalty that may be imposed upon the accused is five years’ imprisonment.
Where the accused is charged with assault causing bodily harm or assault with a weapon and the Crown elects to proceed by summary conviction, the maximum penalty that may be imposed on the accused upon conviction is two years less a day imprisonment and/or a $5,000 fine. In more serious cases, the Crown will proceed by indictment and the maximum penalty that may be imposed upon the accused is ten years’ imprisonment. If an individual is convicted of aggravated assault, they will face a maximum penalty of fourteen years’ imprisonment.
Can you Drop Assault Charges in Peel?
Generally, no. Once a legitimate allegation of assault has been made and reported to the police, they will almost always lay charges. Once a charge has been laid, it is not possible for the complainant to retract their statement and have the charges withdrawn. Once the matter proceeds to Court, only the Crown attorney can withdrawal the charges. Often, if the complainant is completely unwilling to cooperate and there are no third party witnesses to the assault, the Crown will be left with no choice but to withdrawal the charges
What is the Punishment for Assault in Brampton?
The penalties for those convicted of assault can range significantly due to the broad definition of the word assault. Assault is a hybrid offence which gives the Crown considerable discretion regarding the maximum penalty that may be imposed on the accused. In cases involving serious injuries the Crown will proceed by indictment in which case the maximum penalty that may be imposed by the Court upon conviction is five years’ imprisonment. More commonly, the Crown will proceed summarily and the maximum penalty that can be imposed upon the accused is six months’ imprisonment and/or a $5,000 fine.
What is s. 266 Assault?
Section 266 of the Criminal Code outlines the punishments that may be imposed on an accused convicted of simple assault. The section states that the Crown may elect to proceed by indictment or by summary conviction. Which route the Crown elects will depend on the severity of the accusations, the injuries sustained by the complainant and whether or not the assault was a domestic assault.
Will I go to Jail for Common Assault?
Whether or not an individual will go to jail for common assault will depend on a number of factors. These factors include; the details of the alleged assault, the severity of the injuries, if any, to the complainant, the background of the accused, the criminal history of the accused and any other factors the Court determines to be relevant. An individual with no criminal history who caused minor injuries or no injuries at all will almost never go to jail for common assault. A repeat offender who caused significant injuries to the complainant, however, has a much higher chance of being incarcerated as a result of their common assault charge.
How to Beat an Assault Charge?
The best way to beat any assault charge will depend largely on the facts of the case. In some circumstances the Crown will be unable to prove the identity of the accused or will not have enough evidence to gain a conviction and will agree to drop the charges. In other situations, however, a more robust defence will be required. In some situations, the accused may be able to argue self defence or defence of property.
What if the Victim doesn’t show up to Court?
Prior to attending court for trial, the police will subpoena the victim in an assault case to put them on notice that they must attend court at a certain time and date to testify and advises them that failure to appear is a criminal offence. If, however, even after being subpoenaed, the victim does not attend Court, the Crown is often forced to withdrawal the charges. In many assault cases there are no third party witnesses and no other evidence available for the Crown to present to the Court.
Can an Assault Charge affect my Immigration or Travel to the U.S?
Yes. Being charged or convicted of a criminal offence in Canada can have serious implications on an individual's ability to become a Canadian citizen, as Immigration, Refugees and Citizenship Canada requires applicants to disclose all previous and pending criminal charges. Travel to the U.S. may also be impacted by an assault conviction, as the U.S. reserves the right to deny entry to anyone who has been convicted of a crime of moral turpitude, which includes virtually all criminal offences, including assault.
Is it a Defence if I was Drunk?
Although alcohol is often a factor in many minor assaults, arguing that the defendant was drunk and therefore not responsible for their actions is generally not a viable defence for an assault charge. The Court will often take the position that if an individual willingly becomes intoxicated they are responsible for their actions while in that state.