If you have been charged with assault there are a number of defences available to you. At Neaman & Company we have years of experience dealing with assault charges. Many assaults involve a domestic dispute where one partner or spouse is charged with assault against the other. This type of offence can be devastating to a husband or wife. In most cases, a spouse who is charged with assault may be released from a jail but is released with conditions of no contact with the complainant spouse and “no go” to the family home. We have compiled a summary of what to expect if you have been charged with assault, how you or your lawyer can apply to get back into the family home and what defences may assist you whether you choose to defend yourself or hire a lawyer for your charges.
I have been charged with assault. What is an assault?
An assault is the intentional use of force against someone without their consent. For example, if Joe hit, punched, or shoved someone at a Vancouver nightclub he could be charged with assault. No observable injuries need to result. In fact, simply threatening to assault someone can result in a charge if you were close enough to the person to carry out the threat.
The Crown lawyer has the burden of proof to prove guilt beyond a reasonable doubt. This means the Crown lawyer must prove a number of elements that constitute an assault to convict an accused.
Assaults – Defences
What are the defences to an assault?
– I acted in self-defence
You are permitted to defend yourself if you are being attacked or a person is threatening to attack you. You are allowed to use as much force as is necessary and reasonable to protect yourself. For example, is someone is attacking you with a bat, you are permitted to strike that person with your fist to stop them from attacking. Of course, the type of force you use depends on the circumstances and a successful defence depends on what kind of force you use to defend yourself. Furthermore, you may not be able to use this defence if you, by words or actions, started the fight. It is up to a judge to decide whether you acted in self-defence – a judge will base his/her decision based mainly on your court testimony and the testimony of the complainant. At Neaman & Company we have dealt with countless assault charges.
– The complainant consented to the fight
This defence is typically used when both parties agree to fight. This agreement may be spoken or implied – that is for a judge to decide. Both parties must have a mutual understanding of the type of fight that is in contemplation. An example of this defence may be where two people are arguing and decide to fight it out at a local Vancouver Symphony of Lights fireworks night. If both parties end up punching each other a few times without seriously injuring each other, a person may use the defence that the other consented to the fight. You cannot use this defence if the other person was injured in a serious way. So if you broke someone’s leg or caused them to bleed excessively, consent is not a defence. It is up to a judge to decide whether you can successfully use the defence of consent – a judge will base his/her decision based mainly on your court testimony and the testimony of the complainant. At Neaman & Company we can determine whether this defence applies to your case.
– I had no intention of assaulting the complainant
If you accidentally hit or touched someone, you are not guilty of assault. For example, if you are pushed into someone in a crowd of people, you have a defence. Similarly, if you slip and fall on someone, you have a defence. It is up to a judge to decide whether you intended to physically contact someone – a judge will base his/her decision based mainly on your court testimony and the testimony of the complainant.
– They have the wrong person – Identification
In some cases, it may be difficult for the Crown lawyer to prove that it was you that committed the crime. For example, someone may have been assaulted at a crowded bar. You may have been charged with assault based on someone who identified you to the police (a victim or an independent witness) at the bar. The Crown lawyer must prove that you are the person who committed the assault. In many cases witnesses who do not know the accused may not be able to adequately identify the accused as the person who committed the assault. This is particularly true in crowded environments where events happened quickly. The witnesses are commonly called to testify at trial to identify the person who committed the crime. A good cross examination of these witnesses can result in an acquittal if the witness’s testimony is not credible.
– Defending property
You are permitted to use as much force as is necessary and reasonable to protect your property. So if someone is trespassing on your property and they will not leave, you can use as much force as is necessary and reasonable to remove them. Or if someone is trying to take something from your hand (for example, your cell phone), you can use force to prevent them from doing so providing the force is reasonable.
Negotiating with the Crown Prosecutor/Guilty Pleas/Peace Bonds
At Neaman & Company, we work with our clients to assess the best direction for the case – to have a charge dropped, to proceed to trial or to negotiate a plea. In some cases we attempt to have a charge dropped against a client where we feel there is little prospect of a successful prosecution by the Crown lawyer. In other cases, we will advise that a trial is the best route for our client. In many cases, we may seek instructions from our client to permit us to negotiate some deal with the Crown lawyer prosecutor. Ideally, we will attempt to ensure that a deal will not result in a criminal record for our client. The following sentences do not result in a criminal record:
A Peace Bond – This is where the assault charge is dropped and the Crown lawyer proceeds under a provision of the Criminal Code that carries no criminal record. The accused must be prepared to admit that the complainant has reason to fear the accused but the accused need not admit the assault. A judge can attach conditions to a Peace Bond including no contact with the complainant or counseling. In some cases a judge will permit contact. A Peace Bond can be particularly useful in cases involving a domestic dispute/assault.
An Absolute Discharge – In cases where the accused has a minimal or no criminal record, a court can grant an absolute discharge. In this situation, the accused gets no criminal record.
A Conditional Discharge – If a judge grants a conditional discharge the accused will not receive a criminal record providing he or she meets the conditions the judge sets.
At Neaman & Company, we will, with our client’s instructions, attempt to negotiate one of these outcomes with the Crown lawyer prosecutor. It is important to note that a judge is not obliged to follow any arrangement that is proposed by the Crown lawyer and accused at a sentencing hearing.