FIRST OFFENDER? DEFEND ASSAULT CHARGES IN KITCHENER.  1-866-DEFENCE.

If you have been arrested and charged with a criminal offence in Kitchener Donich Law can assist you. For those who have never had contact with the legal system before, being charged with a criminal offence can be a scary experience. We have devoted a portion of our practice to defending those charged as first-time offenders with an assault offence. The Firm has experience defending a wide array of clients charged with various assault offences and resolve many of the cases without a criminal record for our clients.

In early 2019, the Firm defended an individual charged with assault causing bodily harm after splitting the lip of his domestic partner in R. v. H.T. [2019]. After fifteen months of litigation, the Firm was able to secure an absolute discharge for the accused. Later in 2019, the Firm resolved two separate domestic assault matters without criminal charges for either accused in R v. A.V. [2019] and R. v. M.R. [2019]. In both cases, the accused’s were second time offenders.

In 2018, the Firm represented an individual charged with four counts of assault with a weapon and one count of assault in R. v. E. T. [2018]. The Firm was able to have all five charges withdrawn. In 2016, the Firm represented an individual alleged to have kicked a ten-year-old child in the groin at a Toronto Blue Jays Game in R. v. N.S. [2016]. The individual was charged with assault causing bodily harm. After negotiating with the Crown, the Firm was able to resolve the matter without a criminal record for the accused.

In R. v. R.S. [2016], the Firm defended an individual charged with assault causing bodily harm after allegedly punching another man in the face and breaking his zygomatic bone, requiring three reconstructive surgeries to repair. After three years of litigation the Firm was able to prove that the complainant had been sexually harassing the accused’s girlfriend immediately before the incident. Ultimately, the matter was resolved without a criminal record for the accused.

In 2016, the Firm Defended an individual charged with assault with a weapon after throwing her purse at her husband in R. v. P.S. [2016]. The Firm was able to negotiate with the Crown to have the charge withdrawn. In 2015, the Firm defended a City of Toronto employee charged with assault with a weapon after throwing his keys at his spouse in R. v. P.L. [2015]. The Firm was able to have the charge withdrawn, resolving the matter without a criminal record for the accused.

Having a complete understanding of the Elements of the Criminal OffenceYour Rights and the Consequences associated with a Criminal Record is necessary before any legal decisions are made.

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Frequently Asked Questions

What is Assault?
Can you be Charged with Assault for Defending Yourself?
What are the Penalties for an Assault Conviction in Kitchener?
What are Common Assault Charges?
-Assault with a Weapon
-Assault Causing Bodily Harm
-Aggravated Assault

Additional Resources

Assault
Assaulting a Peace Officer
Sexual Assault Law in Canada
Consequences of a Criminal Record
Domestic Abuse
First Offenders
Immigration Consequences
Keeping Charges Private
Travel & US Waivers
Vulnerable Sector Screening
Elements of a Crime
Your rights

What is Assault?

In Canada, the offence of assault encompasses a wide array of interactions between people. Assaults can range from one individual with a weapon impeding the path of another individual, to one individual violently attacking another individual.

Section 265(1) of the Criminal Code outlines the offence. A person will be guilty of the offence of assault where they intentionally apply force to another person, either directly or indirectly, without that person’s consent, where an individual threatens or attempts to apply force to another person, by an act or gesture, or causes that other person to believe on reasonable grounds that the accused has the present ability to effect his purpose, and where a person, while openly carrying or wearing a weapon or imitation weapon, impedes, begs or accosts another person.

Can you be Charged with Assault for Defending Yourself?

Yes. While self-defence is a legitimate defence to an assault charge, it will not exempt a person from being charged with the offence of assault. In some cases, it is difficult for police officers to determine who the aggressor was in a situation. In other situations, allegations are being made by both parties. In these cases, officers will often charge both parties involved in the altercation and leave it to the courts to determine who the aggressor was. This may leave individuals who were legitimately defending themselves charged with a criminal offence and in need of a lawyer to defend the charges.

Depending on the nature of the allegations being made, in some cases it is possible to negotiate with the Crown early on in the case and come to an agreement amenable to both parties. This, however, is more common in cases involving first time offenders alleged to have committed a minor assault. In some cases, it may even be possible to negotiate with the Crown to have the charges withdrawn at an early stage in the proceedings. For individuals charged with a second or subsequent offence, or where the nature of the assault is serious, Crowns will be less likely to agree to a favourable resolution.

In cases where an accused is adamant that they were legitimately defending themselves and have no criminal culpability in the altercation, but the Crown is unwilling to withdrawal the charges, the accused will have no choice but to go to trial. In Canada, the burden of proof at any criminal trial lays with the Crown to prove, beyond a reasonable doubt, that the accused committed the offence they have been charged with. If the Crown cannot prove their case, the accused cannot be convicted. The accused is under no obligation to present any evidence at trial, they can simply argue that the Crown has failed to prove their case.

In situations where the Crown has proven to the Court that the accused committed an assault on the complainant, the accused may argue self-defence. If an accused is arguing self-defence, they must present evidence to the Court to bolster their argument. The defence must prove that the accused was defending against an attack perpetrated by the complainant, and that the accused used only the reasonable force necessary to stop the attack.

In determining whether the accused’s response to the complainant’s attack was reasonable, the Court will look many factors including; whether the assault was committed against an individual using lawful force against the accused (i.e. a police officer), the proportionality of the accused’s response to the complainant’s attack or threat of attack, the nature of the force or threat, whether the threat of force was imminent, whether the accused could have responded in a different way, the role the accused played in the incident, the size, gender, age and physical capabilities of the accused and the complainant, whether any party to the altercation used or threatened to use a weapon, and the nature, duration and history of the relationship between the accused and the complainant including any prior use of force or threats of use of force between the two parties.

An accused who is able to successfully argue self-defence cannot be found guilty of assault.

If you have been charged with assault for defending yourself, it is important to consult with experienced legal counsel. Donich Law has experience defending a wide variety of individuals charged with an array of assault offences and regularly obtain positive results for our clients.

What are the Penalties for an Assault Conviction in Kitchener?

Due to the broad definition of assault provided in the Criminal Code, there are a wide spectrum of interactions that can be considered assault. As a result, the penalties for those convicted of assault can vary significantly from one accused to the next depending on their history and the nature and severity of the alleged assault.

For very minor assaults, it is sometimes possible to negotiate with the Crown to have the charges withdrawn at an early stage or be granted a conditional discharge. If an accused is granted a conditional discharge, they will plead guilty to the offence and then be placed on probation for a period of time. When that period of time is up, if the accused has managed to stay out of trouble, the charges with be removed from the accused’s record.

In cases involving more serious assaults or where the accused is a repeat offender, they will likely face harsher penalties. Assault is considered a hybrid offence, meaning it is up to the Crown to determine the maximum penalty imposed on the accused based on their election in the matter. If the Crown elects to procced by summary conviction the accused will face a maximum of two years less a day in prison, a $5,000 fine or both. If the Crown elects to proceed by indictment the accused will face a maximum of five years in prison.

What is Assault with a Weapon, Assault Causing Bodily Harm and Aggravated Assault and their Penalties in Kitchener?

In addition to simple assault, the Criminal Code also outlines the offence of assault with a weapon, assault causing bodily harm and aggravated assault.

Assault with a Weapon

As outlined in the Code, an individual is guilty of assault with a weapon where they commit an assault and in the process of committing that assault use a weapon, carry a weapon or threaten to use a weapon or imitation of a weapon. An individual who is found guilty of assault with a weapon will face a maximum penalty ranging from two years less a day in prison, and/or a $5,000 to ten years in prison.

Assault Causing Bodily Harm

An individual has committed the offence of assault causing bodily harm where they commit an assault that causes physical injury to the complainant or where they choke, strangle or suffocate the complainant. The maximum penalties for assault causing bodily harm range from two years less a day in prison and/or a $5,000 fine to ten years in prison.

Aggravated Assault

An individual is guilty of the offence of aggravated assault where they assault another person and cause significant injuries to the complainant including maiming, wounding, disfiguring or endangering the life of the complainant. Aggravated assault is the most serious assault charge and comes with maximum penalties ranging from two years less a day in prison and/or a $5,000 fine to fourteen years in prison.

If you have been charged with an assault offence Donich Law can assist you in developing the best strategy to defend your case. We regularly represent individuals charged with a variety of assault offences and resolve cases with positive outcomes for our clients.

Quick Facts

What is section 266 Assault?

Section 266 of the Criminal Code outlines the penalties for those convicted of simple assault. The Code indicated that assault is a hybrid offence, with maximum penalties ranging from two years less a day in prison and/or a $5,000 fine to five years in prison for the most serious offences.

Can I go to Jail for Assault?

Yes. The maximum penalty for an individual convicted of simple assault is five years in prison. This sentence, however, is only handed down in the most serious cases. Whether or not an offender will be incarcerated as a result of an assault conviction will depend on the severity and nature of the allegations, the criminal history of the accused and any other relevant mitigating or aggravating factors presented to the Court.

Can I get my Assault Charges Dropped?

In some cases involving minor assaults or where the Crown does not possess enough evidence to gain a conviction, they will agree to drop the charges. This, however, does not occur often. In most cases, an accused will be required to defend the charges against them or enter into a plea agreement with the Crown.

What if the Victim Does not Want to Press Charges?

In Canada, the complainant in a criminal matter does not have the power to “drop the charges” against the accused. That being said, in cases where the complainant is the main source of evidence and they refuse to cooperate with the Crown, it may be difficult for the Crown to prove their case to the Court which can lead to charges against the accused being withdrawn in some cases.

How does the Crown Prove Assault?

To gain an assault conviction, the Crown must prove, beyond a reasonable doubt, that the accused intentionally applied force to the complainant, either directly or indirectly, without consent. Alternatively, the Crown may also prove that the accused threatened to apply force to the complainant and that the complainant genuinely believed the accused had the present ability to carry out the threat.

What if I was Drunk when I Committed Assault?

Generally, arguing intoxication to defend an assault charge will not be successful. Courts in Ontario are generally reluctant to accept the argument that an individual was so intoxicated that the lacked the necessary intent to be guilty of the offence. This is especially true where the accused became voluntarily intoxicated.

How to Defend an Assault Charge?

For an individual who has been charged with assault, there are generally four defences that may be used. These defences include; consent, reflex action, defence of person and defence of property. Experienced legal counsel can assist you in developing the best legal strategy to defend your case.

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