How to Beat an Assault Charge in Ontario

Assault is one of the most common criminal charges in Ontario and one of the most challenging. There are several different types and fine details to tell them apart. A conviction for the offence of assault can have wide-reaching and long-lasting consequences, making the services of an experienced assault lawyer critical to handling the charge and determining which strategy is best for your case.

What Is Assault in Criminal Law

Section 265(1) of the Criminal Code of Canada defines the offence of assault as such: 

(1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) 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 upon reasonable grounds that he has, present ability to effect his purpose; or

(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

It is important to note that to be charged with assault, the alleged victim does not have to be harmed or even physically touched. As section 265(3) outlines, there is no consent where the complainant submits or does not resist by reason of:

• The application of force to the complainant or someone other than the complainant;
• Threats or fear of the application of force to the complainant or someone other than; the complainant;
• Fraud; or,
• The exercise of authority.

The Different Types of Assault

As mentioned above, there are several types of assault which can make a significant difference in terms of a defence and potential penalties.

Assault

The most general type of assault is also often referred to as simple assault or common assault charge. This type is the most common assault charge and arises in a simple altercation, such as a fistfight or threats uttered. Common assault is a hybrid offence punishable with a maximum of five years imprisonment if prosecuted by indictment or a maximum of six months imprisonment when prosecuted by summary conviction. 

Domestic Assault

Domestic assault charges can include various assault related charges that occur when a partner or former partner is assaulted. Domestic assault cases are taken very seriously because of the nature of the relationship between the parties involved. Many Crown Attorney’s offices have a dedicated team of prosecutors that deal with Intimate Partner Violence or Domestic Violence. These Crowns abide by policies that prohibit them from withdrawing charges solely at the request of the alleged victim. 

Assault with a Weapon or Causing Bodily Harm

Assault with a weapon or causing bodily harm is more severe than a simple assault charge. Assault causing bodily harm occurs when physical harm has been caused to another person. If the assault involves a weapon, then the charge may be upgraded to assault with a weapon.

Section 267 of the Criminal Code of Canada defines assault causing bodily harm as a situation in which applying force to another person without consent results in bodily harm. 

“Bodily harm” is defined under section 2 of the Criminal Code as hurt or an injury to an individual interfering with the health or comfort of that person that is more than transient or trifling in nature. This means that the interference with the victim’s health or comfort and injury must last more than a very short period and is more than a very minor degree, which results in a very minor degree of distress. 

Assault with a weapon or causing bodily harm carries a maximum penalty of up to 10 years in prison.

Aggravated Assault

Aggravated assault is a straight indictable offence and is the most severe assault charge in Canada. Aggravating factors include serious injury, disfigurement, endangerment of life, and use of a weapon. Aggravated assault is an assault that results in significant bodily harm, such as wounding, maiming or disfiguring. 

“Wounding” is defined as “breaking of the skin”. An assault where one bites through the lip of another individual and cuts entirely through the lip to the point where stitches are required may constitute the offence of aggravated assault. 

“Maiming” is defined as an injury whereby a person is less able to fight and defend himself. Maiming essentially deprives a person’s bodily function through injury to a limb or organ. A broken forearm, lost eye and facial bone injuries have been found to meet the legal definition of maiming under the offence of aggravated assault.

“Disfiguring” involves a significant injury with some sense of permanency. While it does not have to be a permanent injury, it must be an injury that does not necessarily heal in a reasonable period and may last for a significant time. Cutting off a finger or ear or causing a permanent scar by throwing acid on one’s face would undoubtedly constitute the offence of aggravated assault by way of disfiguring. 

Aggravated assault is a much more severe offence. Section 268(2) of the Criminal Code states that every one who commits an aggravated assault is guilty of an indictable offence and is liable to imprisonment for a term not exceeding 14 years.

While an absolute or conditional discharge is not an available disposition for aggravated assault, sentences for this type of offence may include one or more of the following: a suspended sentence, probation, a conditional sentence order, or reformatory and penitentiary jail sentences. Sentencing is a very fact-specific analysis that must be assessed on a case-by-case basis. 

The circumstances of the offender and the circumstances of the offence will impact the type of sentence one may receive if found guilty of aggravated assault. 

Ways to Beat an Assault Charge

If you have been charged with assault, there are several defences available, including the following:

• Issues with proving identity
• Raising a reasonable doubt
• Lack of intent
• Consent for the use of force or consensual fight
• Self-defence
• Plea bargain for reduced charges
• Charter Rights violations/other procedural mistakes

Issues with Proving Identity

Like in many criminal cases, the Crown Attorney must prove the identity of an accused person in relation to an assault charge. In some cases, there may be issues proving the identity of the accused, including whether witnesses could properly identify the accused or if there were issues with the quality of surveillance footage. These types of issues are more common in cases involving parties that are unknown to each other, like a bar fight between strangers.

Raising of Reasonable Doubt

Any one charged with assault is presumed to be innocent until proven guilty. The Crown must prove your guilt beyond a reasonable doubt. A skilled assault lawyer can effectively raise a reasonable doubt concerning the charges against you by attacking the credibility and reliability of witnesses and other evidence.

Lack of Intent

One common argument is that the alleged assault was a reflexive response to an external stimulus or an unintentional force. This argument aims at the intent requirement in an assault charge. The touching or application of force that takes place in a crowded bus is an example of accidental or unintentional application of force. 

Consent for the Use of Force

Consent is a critical factor in an assault charge. Section 267 of the Criminal Code of Canada states that force must have been applied without the other party’s consent. In other words, if the accused can prove that the complainant consented to the force, for example, in a mutual fistfight, there was consent given, and therefore, no assault was committed. 

Self Defence

Section 34 of the Criminal Code states that a person is not guilty of an offence if:

(a) There was reasonable grounds to believe force or threat of force was being used against them or another person.

(b) Assault was committed with the purpose of defending themselves or another person.

(c) Act was reasonable in the circumstances.

Several factors are considered by a Court when one puts forward a self defence argument, in order to determine whether the act committed was reasonable including, but not limited to the following: imminence of the force, the nature and history of the relationship, the nature of the force or threat of force, whether any party used a weapon, the size, age and gender of the parties, the proportionality of the person’s response 

De Minimus

The doctrine of de minimus stands for the proposition that the law does not care for small or trifling matters. Non-consensual or incidental touching amounting to a trivial assault can be subject to a de minimus finding. For example, a small push in a small space where the accused does not have any alternative route to exit or minor contact in the midst of a heated argument. 

Plea Bargain for Reduced Charges

Issues in the Crown’s case can be used by a criminal defence lawyer to negotiate a potential resolution with the prosecutor. This can result in reduced charges, an agreement regarding the factual circumstances of the assault, avoiding a criminal record and ultimately resulting in a more favourable outcome. 

Charter Rights Violations

The court takes Charter rights violations very seriously. If a Charter violation is established, such as an unwarranted search or seizure, the Court may exclude evidence which may ultimately lead to an acquittal. 

How Can A Criminal Lawyer Can Help You

Assault charges are serious and carry severe consequences. If you have been charged with either type of assault, please consult with an experienced criminal defence lawyer immediately. 

Just because you have been charged with an offence does not mean you are guilty. The prosecution must prove all elements of your criminal charge beyond a reasonable doubt. 

Farjoud Law has an outstanding track record defending clients charged with criminal offences. We are dedicated to professionalism, client services and passionate advocacy. 

If you or a loved one have been charged with criminal offence, do not hesitate to call Farjoud Law at 647-606-6776 to speak directly to a criminal defence lawyer who personally answers all calls 24 hours a day, 7 days a week or fill out our convenient online form.