Assault

It is important to hire an experienced criminal defence lawyer to defend an assault charge.

 

Steven Slimovitch consistently achieves top results for his clients facing assault charges by employing a number of effective strategies that often result in his client’s charges being withdrawn by the prosecutor or dismissed in court by the judge.

 

When confronted with allegations of assault, hiring experienced and persuasive legal counsel is vital to a successful defence.  Assaults arise in a variety of contexts, often between law abiding citizens involved in an unexpected heated dispute.  A conviction for assault carries serious employment, travel, immigration, and relationship consequences.  We handle many situations where the alleged assault was completely unintentional.

 

This section will explain the five main types of assault offences as well as their potential consequences:

1. Simple assault

2. Assault with a weapon and assault causing bodily harm

3. Aggravated assault

4. Spousal/Domestic assault charges

5. Sexual assault

 

1 .Simple assault

Section 265 of the Criminal Code provides that a person commits an assault when he or she without the consent of another person, applies force intentionally to that other person, directly or indirectly; he or she attempts or threatens, by an act or a gesture, to apply force to another person, or causes that other person to believe on reasonable grounds that he or she has, the present ability to effect their purpose; or while openly wearing or carrying a weapon or an imitation thereof, he or she accosts or impedes another person or begs.

 

An assault can also occur where a person attempts or threatens to intentionally apply direct or indirect force to another.

 

Is harm an element of an assault charge?

A person need not harm someone for an assault to occur.  A person may commit an assault although he exerts no degree of strength or power when touching the victim.  The force however must be offensive or an affront to an individual’s dignity.  A push or pinch in some cases may be sufficient to establish a criminal assault.

 

What if I accidentally hit someone?

The application of force must be intentional.  Accidentally hitting someone during the course of an epileptic seizure, for example, would not constitute an assault.  However accidentally hitting one person in an attempt to hit another is not a defence to assault.  It does not matter who the intended victim is, as long the offender intended to apply force to any individual, it is still an assault.

 

2. Assault with a weapon and assault causing bodily harm

The difference between an assault and an assault with a weapon is the vehicle used to deliver the force.  Generally an assault or “simple assault” is caused by the application of force from a person’s extremities such as hands, legs, or feet.  An assault with a weapon generally involves the application of force with an inanimate object such as a stick, bat, and knife or object thrown and can even be delivered by something other than an inanimate object including a dog ordered to attack a person.

 

An assault that causes any hurt or injury that is not transient or trifling in nature and interferes with the complainant’s health or comfort will meet the definition of bodily harm.

 

 

3. Aggravated assault

In order for an assault to meet the definition of an aggravated assault, the injury must be much more substantial.  Any injury that wounds, maims, disfigures, or endangers the life of another meets the definition of an aggravated assault.

 

The degree of harm caused by an assault will likely dictate the type of sentence imposed by the judge if the accused is found guilty.  While some “simple assault” charges may not result in any jail time, an aggravated assault charge often results in a jail sentence the length of which depends on the severity of the injuries suffered by the victim.

 

Although the charge is the same (assault, assault with a weapon etc.), the considerations in defending a charge of this nature are very different.  For starters, most people arrested on this charge are being arrested for the first time.  So it can be quite a shock to be booked into custody, spend an uncomfortable night in cells, and then get released the following day on the conditions that you move out of your house and have no contact with your wife or girlfriend and sometimes even your own children.

 

If the couple is planning on staying together, these cases have to be handled delicately and diplomatically so that going through the legal process does not further damage the relationship.  Often the first step in these cases is to try and change the terms of release to permit you to return to the family home.  There are a variety of options apart from going all the way to trial to resolve the case in a way that does not saddle you with a criminal record.  These would include a diversion, a peace bond, or a discharge.  The availability of these options varies depending on the handling of the case, the underlying facts, and the jurisdiction in which you are charged.

 

4. Spousal/Domestic Assault Charges

Being charged with any type of assault allegation is a traumatic and painful experience.  Those charged with domestic assault will face additional challenges due to the fact that the court system will try to prevent accused persons from contacting or residing with their loved ones while their cases slowly negotiate through the maze of the criminal justice system.  Those found guilty of domestic related assaults also potentially face stiffer sentences.

 

Right from the start, the police, prosecutors, and the judges all apply a rigorous zero tolerance policy to domestic assault cases, regardless of whether or not the complainant wishes to see the charges prosecuted in court.

 

One of the best ways to ensure that you do not end up as a casualty of these zero tolerance policies is to hire a criminal lawyer familiar with defending domestic assault cases.

 

Mr. Slimovitch can refer clients to family law lawyers who are experienced with high conflict divorces where special expertise is required to fend off false or misleading allegations, and then we are able to work with family law counsel to develop a comprehensive approach to protecting and thus defending our clients.  Any criminal charge changes someone's life in a profound way and causes extreme stress and emotional harm.  We understand this and we work with our clients to provide not just strong defences to criminal charges but also to help provide a support system for our clients to help them through some of the most traumatic times in their lives.

 

Violent offences arising within a domestic context by necessity involve unique issues, such as ongoing family law disputes, high emotions and the effects on other parties (i.e., children, parents, siblings).  These cases may require the use of secondary sources of material family law documents, witness interviews, and medical and related documentation as a means to construct successful cross-examinations.

5. Sexual assault

Commonly, sexual assault and sexual abuse have been used in the same context.  However, the difference depends on the subject.  In law, there is no clear definition of sexual abuse.  This is a more common term among mental health experts.  Sexual assault is defined in law as an assault of sexual nature that infringes the victim’s sexual integrity or as the intentional act of sexual nature that occurs without the consent of the other party.

Some defences to an assault offence:

An experienced criminal lawyer can identify a number of valid defences to an assault allegation.  The following is a non-exhaustive list of potential defences to an assault charge.

 

Consent

For an assault to have occurred, the Crown must prove that the application of force by the accused person was done without the consent of the party to whom the force was applied. Consent may be expressly given or implied.  In many instances, consent is implied and this may be determined from the circumstances surrounding the offence.

 

Generally there is an implied consent to pat a co-worker on the back or shake hands with a relative stranger.  However, fraudulently-obtained or forcefully-extracted consent is really no consent at all.  In addition, no one may consent to being killed or seriously injured.  Consenting to fight does not normally imply permission to inflict significant bodily harm.  Thus where the offender intends, or actually causes, significant harm or death, consent is not a valid defence to the assault.

 

Mistaken Belief in Consent

Even if the Crown proves that consent did not actually exist, it is still available to the accused to argue that they honestly believed the aggrieved party had consented to the application of force.  Even an honest but mistaken belief in consent will also afford a defence to an assault charge.

 

Self-Defence

The law recognizes that a person is justified in using force or threatening force in certain circumstances to protect either themselves, close family members or their property.  The basic rule permits the use of force if the force is reasonable in the circumstances.  Whether the use of force is reasonable is entirely fact specific and can depend on a number of different factors.

 

In terms of self-defence, you can only defend yourself to the point reasonably necessary to prevent an assault or its repetition.  The infliction of grievous bodily harm or death while defending yourself can only be justified under narrow circumstances, requiring that there be a reasonable apprehension of death or grievous bodily harm and no other way to preserve your safety.  Interestingly, if you are relying on the defence of self-defence, you are entitled to adduce evidence of a complainant’s propensity for violence, regardless of whether you were aware of it at the time of the incident.  In other cases, this sort of evidence would generally be held inadmissible as irrelevant, however it is permitted in these cases.  Mr. Slimovitch takes full advantage of that in appropriate cases by requesting disclosure of any information regarding the propensity for violence by the complainant that may have been gathered by the police on other occasions.

 

Consequences of an assault offence conviction

The consequences of being found guilty of an assault charge are significant.  Upon a finding of guilt, one may receive a criminal record and be sentenced to a period of incarceration in jail.  Usually, the greater the harm suffered, the harsher the penalty.  Alternatively, the court may impose a lesser sentence including probation with counselling or a fine without jail for lesser offences.

 

Given the seriousness of an assault offence, it is of the utmost importance to have your case evaluated by a lawyer experienced in defending assault offences.

 

© 2019  Steven Slimovitch   by Cherrydesign

FOLLOW US:

  • w-facebook
  • Google+ App Icon
  • LinkedIn App Icon
  • Twitter Clean