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ASSAULT AND DOMESTIC ASSAULT

Assault and Domestic Assault in Edmonton

Exerting force on another person without their consent is considered criminal assault, as laid out in the Criminal Code of Canada. Assault is one of the most common crimes in Canada.  Spousal or domestic assault is a serious charge and you need to be defended by an experienced lawyer.

There are a number of variations on a common assault charge including:

  • Aggravated assault
  • Assault with intention to resist arrest
  • Assault causing bodily harm
  • Assaulting a police office
  • Assaulting a peace officer
  • Sexual assault
  • Trespasser (deemed assault)
  • Assault with a weapon

What is Assault?

Applying force on another person intentionally without obtaining consent constitutes an assault. Even threatening “by act or gesture” to apply force can be considered assault in the eyes of the law. There is a common misconception that assault can only be charged if a person has actually exerted force on another however this is not strictly the case.

In fact, a person does not even need to harm or injure the victim to be guilty of assault. A person can assault another without applying any force or strength whatsoever.

According to the law, even a pinch or a push can be enough.

Accidental Force

There are times when a person may accidentally apply force on another. For instance, a person who is having an epileptic seizure may be thrashing about and accidentally hit someone. In this case, the person would not be accused of assault. The intent has to be there for a case to be made. If a person didn’t intend to apply force on the other person, they cannot usually be charged with assault.

An exception to this can be if a person accidentally hits another person when trying to hit someone else. As often seen in movies, a person can duck or move away and another person gets hit. Since the person intended to apply force on a person, it could well be considered a case of criminal assault. The fact that the striking of that particular person was accidental would probably not provide a valid defence.

Domestic Assault

When assault happens within the family it is known as domestic or spousal assault. Domestic assault is a crime. All sorts of issues arise in and around domestic assault cases and they are highly emotionally charged situations. Just some of the difficult issues that can arise include:

  • Recanting or hostile witnesses
  • Children as witnesses
  • Traumatized spouses and other family members, as witnesses
  • Criminal proceedings against victims for failing to testify or perjury
  • Bail and terms of bail release issues
  • Criminal harassment (stalking) issues
  • How to re-unite the family
  • How to keep the family apart
  • Children as victims

There are special considerations for sentencing to be taken into account in domestic violence cases. In particular, section 718.2 of the Criminal Code deals with “sentencing principles” to be taking into consideration in certain situations and directly apply in cases of domestic or spousal assault.

A host of aggravating and mitigating factors are to be considered upon sentencing, including such things as:

  • The seriousness of the abuse
  • History of the marriage or relationship
  • Is it an isolated incident or an on-going pattern of behavior?
  • Was the offender in a position of trust?
  • Has there been an admission of guilt and a taking of responsibility?
  • Does the accused have a criminal record?

Domestic assault cases can be among the most difficult matters for all people involved in the criminal justice system, including the parties involved but also including the police, crown prosecutors, court staff, social agencies and everyone. Even more so sometimes in situations where attempts are being made to salvage the family unit.

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Consent and Self-Defense

An accused person can defend themselves on an assault charge by showing that the use of force was with consent. If it can be proved that the victim had consented to the application of force, the accused would not be convicted with assault. Remember however that in Canadian law there is generally no ability to consent to assault with a weapon. This is why you cannot agree say to be in a knife fight with someone – it would still be assault even if you agreed to it. But if two people agree to a boxing fight, or a wrestling match, or “drop the gloves” in a hockey game –there is typically no assault as there is consent.

A case for mistaken consent can also be made out sometimes, although it is rare. This is where an accused can argue that they were led to believe and did believe that the victim had consented to the application of force, even if in fact it is determined that no consent was granted. An honest but mistaken belief is required and one would have to convince the presiding Judge, or the jury, in the truthfulness of the belief. This would likely mean taking the witness stand.

With self-defense, there are special rules which determine whether an accused was justified in resorting to self defence, and if so, whether the force used in the self defence was reasonable taking into account all of the circumstances. Excessive force will not be condoned and again, one would have to convince the Judge or the jury as to the belief.

Section 34 of the Criminal Code is the “self defence” section.  It reads as follows:

34. (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

It then goes on to set out factors for the court to consider in making a determination as to the reasonableness of the act committed.  It reads as follows:

34. (2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

Sentencing For Assault Convictions

Summary conviction offenses carry a maximum penalty of 6 months in prison or a fine of not more than $5,000, or both. In addition, the assaulter might be put on probation for a period of time. There could be other sanctions as well. This would be only for more minor assault cases.

If the crown proceeded by the more serious way of indictment, instead of summarily, then the sentence can be much longer depending on the exact charge and the circumstances of the case.

Jail time, fines, probation, conditional sentences – the full range of sanctions gets used as appropriate in assault sentencing situations. For people who are sentenced to a term of imprisonment of two or more years, the sentence is usually to be served in a federal penitentiary. For less than two years it will be served in a provincial institution.

Assault convictions can look bad on a person’s record. They can affect a person’s reputation and ability to obtain employment, go across the border, obtain certain types of licenses and much more. Things are worse if the conviction is for assault causing bodily harm or sexual assault or assault with a weapon and the other charges. A person should go to great lengths to keep assault convictions off of their record. Once they pile up on a record they really start to influence other areas, such as obtaining release on subsequent charges and sentencing harshness on subsequent charges.

Geoff Green is experienced in all manner of assault charges and help you try to minimize the damage caused by assault charges and convictions. You don’t have to go through this alone – Geoff is a lawyer who can help.

Geoff Green – Criminal Defence Lawyer For Alberta

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