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How can my lawyer get my assault charge dismissed or dropped?
If you have been charged with assault one of the first questions you may have is how can this go away without any further legal jeopardy?
Experienced and capable criminal defence lawyers will strategically build a defence on your behalf. It is key to understand your version of the events and then to analyze this based on the law of assault. Criminal assault lies on a spectrum in Canada. There are three types of assault. Simple assault which is reflected in the charging document under section 266 of the Criminal Code.
Simple Assault Contrary to Section 266 of the Code
Simple Assault is committed under any of the following circumstances:
- (a) An assault occurs when a person applies force intentionally to that other person directly or indirectly without consent;
- (b) An assault occurs a person attempts or threatens, by an act or a gesture, to apply force to a person, if she/he/they has, or causes that other person to believe on reasonable grounds that she/he/they has the ability to effect their purpose; or
- (c) An assault occurs when a person confronts another person, prevents another person from moving around freely, or confronts or begs another person while openly wearing or carrying a weapon, or something that looks like a weapon. For example, asking someone for sex while visibly carrying a gun, even if you are not pointing the gun at anyone, or threatening to use the gun, is an assault.
In a nutshell, an assault as defined in the Criminal Code can be anything from a punch, slap, kick to uttering threats or to making a gesture that implies a threat even without physical touch.
Assault with a Weapon and Assault Causing Bodily Harm Contrary to Section 267 of the Code
Assaults under this provision of the Code occur when:
- a) An assault is committed when a person carries, uses, or threatens to use a weapon or an imitation thereof,
- b) An assault is committed when a person causes bodily harm to the complainant, or
- c) An assault is committed when a person chokes, suffocates or strangles the complainant.
Assault allegations under section 267 are considered more serious than simple assault. The penalties under this section can be as much as ten years imprisonment.
It is important to understand that a person can be charged with assault with a weapon for any type of action involving any object that is used in incident. For example, peanut butter jars have been the subject of assault with a weapon allegation.
Aggravated Assault
The Criminal Code defines aggravated assault as an assault that occurs when a person applies force intentionally to another person which causes any of the following:
- wounds,
- maims, or
- disfigures or endangers life.
A wound can range from a broken bone to a break in the skin requiring medical intervention. Maiming or disfigurement refers to causing more than temporary impairment of a person’s figure or appearance, such as a scar. Endangerment of a person’s life means the person faced a real risk, even if no bodily harm was done.
Aggravated assault is the most serious form of assault under the assault provisions in the Code.
The prosecutor must submit admissible evidence which will prove there was an intentional application of force and the knowledge that it could result in bodily harm. Another essential element which must be proven beyond a reasonable doubt is that the injuries that resulted were not trivial or temporary. Furthermore, in some cases, causation may be an issue.
What is domestic assault and is it worse?
Domestic assault is not specifically defined in the Code. This an assault that occurs in a domestic, intimate or familial relationship. These relationships include relationships such as boyfriends and girlfriends, spouses or common-law partners, and other family members.
In Canada, domestic assaults are treated more seriously by police and the courts for the following reasons:
- Domestic abuse is widespread in Canada;
- Domestic abuse can devastatingly impact children;
- Domestic violence will escalate if it is not dealt with quickly and effectively which typically results in more extreme violence.
The prosecutor always has the burden to prove the charges of domestic assault beyond a reasonable doubt, including:
- That the complainant was in a domestic relationship with the accused (i.e. romantic relationship, spouse or common law partner, or familial relationship such as father and child);
- That the accused directly or indirectly applied force to the complainant without consent;
- That the application of force was intentional or through the use of words or actions or threatened to apply force to the complaint and had the ability to carry out the threat or the accused accosted or begged the complainant while holding a weapon or imitation of a weapon.
Domestic assault does not necessarily involve physical abuse, but it can include the threat of assault, coercion, sexual assault, and harassment.
A common issue which arises in domestic assault allegations is that the accused person is temporarily banned from seeing the complainant and possibly any children which were alleged to have been present. The prosecutor typically wants a two week “cooling off period” before considering any variations to this temporary ban. A competent and experienced criminal lawyer can guide you through this period and set you up for success in connecting with the complainant and children.
What do I do if I’m charged with an assault allegation? How will my lawyer defend my case?
It is important to retain an experienced, knowledgeable and diligent lawyer. Our first step in mounting a defence is to examine the allegations closely. If there is no evidence the action was not intentional, the defence starts to take shape from that angle. If there is evidence that supports that element, the next step may be to examine and build the argument that this evidence is not admissible. Another defence angle may be self-defence. This is appropriate in limited circumstances therefore you need a lawyer that is sharp and focused when analyzing the case and building arguments.
It is important to remember that the burden of proof is high and an experienced and capable criminal lawyer will rise to the occasion and present your case with strategy and well-thought out tactics.
What happens if the worst occurs and I am convicted?
Aggravated assault is an indictable offence. The prosecutor will seek a term of imprisonment upon conviction. The potential length of sentence will depend on a number of factors. There is no minimum penalty but in Alberta, the range typically starts around six months imprisonment and goes up from there. The maximum period of incarceration is 14 years.
There are a number of court orders that accompany a sentence. These include DNA and weapons prohibitions. Section 109 of the Code sets out the weapons prohibition and section 491 of the Code sets out a mandatory weapon forfeiture order.
In some cases, the prosecutor decide to bring an application for a dangerous offender application. If this occurs, it can result in a lifelong sentence.