Frequently Asked Questions
What are the Ancillary Orders Associated with an Assault Conviction?
When a judgement is entered and the accused is convicted in Oshawa and elsewhere, there are two parts to the judgement. There is the sentence itself and the ancillary orders. Ancillary orders are additional court orders that prohibit or compel certain actions. Ancillary orders are made depending on the facts of the case. Aggravating factors such as committing violence against an intimate partner, a child or a person of the vulnerable sector, or a dependent may result in more ancillary orders. Section 109(1) of the Criminal Code is a weapons prohibition that makes the possession of any “firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance” over a certain period of time. Weapons prohibitions also often includes imitations of weapons.
Another ancillary order is a DNA order. For assault cases, DNA orders are not mandatory, but the Crown may request it. Crimes are separated into primary designated offences and secondary designated offences. Primary designated offences require a mandatory DNA order, while secondary designated offences do not. Assault is considered a secondary designated offence.
Common Types of Disclosure, the Process of getting it, and Why it Takes so Long?
According to the principles of fundamental justice, the Crown must disclose all materials in its possession that is inculpatory or exculpatory as evidence. The complainant statement is usually the main piece of evidence that needs to be disclosed, but there are other types of disclosure as well. Disclosure may include local background checks on the accused, if the accused has any prior criminal history, it may be an aggravating factor. The evidence includes police collected evidence, which may or may not include any photo evidence of any possible injuries or evidence of assault. There may be witnesses and witness statements. Body-camera footage may be included, especially if the altercation was still happening when the police came. When the accused gives a statement, it will be included as well.
When the process begins, the police will collect everything and start a case file. Once the accused has been arrested, they will send the case file along with the accused’s release papers to the Crown’s office. This may take three to four weeks. Then the Crown undertakes two procedures: screening the file, and screening for the Crown’s position on a sentence. After which, the files are vetted, which meant any personal or sensitive information is redacted. Screening and vetting may take up to several months before the Crown finally gives the information to the defense.
It is important to retain a lawyer immediately after the arrest. Getting disclosure is a separate process as well, which requires communication with the Crown’s office. Each jurisdiction and each Crown’s office is different.
What If the Complainant Was Not Injured in Oshawa?
An injury can be an aggravating factor to the case but is not necessary for an assault charge. Section 266 of the Criminal Code defines simple assault as simply applying force to another person without their consent. This can range from a slap on the wrist to a knife wound. However, if the wounds were significant and serious, to the extent that it caused lasting suffering, it would be defined as assault causing bodily harm. Scrapes, bruises, and cuts may be factored into the Court’s analysis, but is often not sufficient enough for an assault causing bodily harm charge.
Often, the Crown will charge both assault and assault causing bodily harm to be decided by the Court. The Court will then analyze the factors of the case before determining whether an injury can be called bodily harm. The worse the injuries are, the more it is considered an aggravating factor.
What If I Did Not Hit the Complainant, Only Touched Them?
Section 265(1) of the Criminal Code qualifies assault as simply intentionally applying force directly or indirectly to another person without their consent. Section 265(1)(c) qualifies assault as accosting or begging while openly wearing or carrying a weapon or an imitation of a weapon. Even a touch on the arm may be considered assault if the receiving party did not consent. Consent is further carefully defined in the Criminal Code. If the complainant submits or does not resist due to the assault happening, the threat of the assault, fraud, or the exercise of authority, they do not consent.
How Long Does a Domestic Assault Charge Stay on Your Record in Oshawa?
As with any criminal record, a domestic assault charge remains permanently on the record. It is possible to apply for a pardon or a records suspension, as per the Criminal Records Act, RSC 1985, c C-47. Any criminal record can be an aggravating factor to a current case. However, a youth record is treated differently: it expires within a certain window of time, then becomes inaccessible without a s. 123 Youth Criminal Justice Act Order of the court.
This is different for absolute discharge and conditional discharges. When granted an absolute discharge, the offence is still recorded, but the record can only be disclosed with the approval of the Minister of Public Safety. A conditional discharge, similar to an absolute discharge, also meant the offence was recorded; however, the record remains for a longer period.