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Assault

The Charge

Under s. 265 of the Criminal Code a person commits assault when they apply force directly or indirectly to another person without their consent. This includes threatening, by act or gesture, to apply such force to another person. Assault, therefore, covers all acts where force is actually applied (such as a slap, punch or kick) to situations where force is threatened (such as raising a fist). Assault is a hybrid offence, meaning Crown counsel has the option of proceeding by indictment, where the maximum penalty is 5 years imprisonment or, Crown may proceed summarily, where the maximum penalty is two years jail, less a day. There are no mandatory minimum penalties for Assault. We’ve been defending assault charges for more than 25 years. We understand that the majority of people charged with assault had no plan to commit an offence. Rather, people charged with assault usually find themselves in situations that rapidly escalate into a physical altercation. Often, alcohol or other intoxicants are involved. Sometimes serious injury occurs, leading to charges of assault causing bodily harm or aggravated assault. If a weapon, or an object as a weapon, is involved, people can be charged with assault with a weapon.

The Investigation

The nature of when and how a complaint is made to police will determine how the investigation unfolds. In some cases, for example when concerned patrons in a nightclub or pub see a fight break out, police are called and will attend quickly and make an arrest. In other cases, police may not receive a complaint for several days or longer. When this happens, police will contact the suspect by telephone or by attending at their home or workplace. No matter when police deal with the suspect, they will want to hear the suspect’s side of the story. As experienced criminal defence lawyers, this is where we can help clients understand that the Charter of Rights and Freedoms guarantees that people under police investigation have the right to remain silent.

In situations where clients contact us after the alleged assault incident, but before they are arrested, we can be of significant assistance. We will make enquiries to determine who the lead investigator is; we will then contact this officer and discuss the investigation on our client’s behalf. Because of the laws concerning solicitor/client privilege, we can act as a “buffer” between police and our client. We will strive to persuade police to not recommend any charges or, where police do want to pursue charges, we will strive to get police to agree to not arrest our client. Rather, we will endeavor to arrange that our client can appear in court to have the arrest warrant “deemed executed,” without the need for our client to be taken into custody.

Recent Successes

R. vs. J.L. - Vancouver Provincial Court

Charges: Sexual assault; Unlawful Confinement; Assault by Choking.
Issue: Given the impact of the additional evidence that Mr. Johnson provided to Crown counsel, whether there was a substantial likelihood of a conviction.
Result: Crown counsel agreed that the new evidence significantly undermined the strength of the case.  Crown counsel entered a stay of proceedings, bringing the prosecution to an end. No jail. No criminal record.

R. vs. S.D. - Vancouver Provincial Court

Charge: Assault.
Issue: Whether it was appropriate for our client to receive a suspended sentence despite having two prior assault convictions.
Result: After hearing Mr. Mines' submissions, the trial judge granted our client a suspended sentence with 12 months of " non reporting" probation.  No jail.

R. vs. T.L. - Vancouver Provincial Court

Charges: Indecent Act; Mischief (reduced to Peace Bond).
Issue: Whether the Crown could prove that our client intended to commit a criminal offence.
Result: Mr. Mines was able to persuade Crown counsel to enter a stay of proceedings on the the criminal charges upon our client entering into a Peace Bond. No criminal record.

R. vs. B.I. - Vancouver Provincial Court

Charges: Assault.
Issue: Given the Covid-19 pandemic, whether it was appropriate to refer our client into the Alternative Measures Program for this assault by spitting offence.
Result: Mr. Mines was able to provide Crown counsel with compelling information about our client which resulted in Crown allowing our client into Alternative Measures and staying the charge upon our client completing the program. No criminal record.

R. vs. T.F. - Surrey Provincial Court

Charges: Assault with a Weapon; Uttering Threats x2; Unlawful Confinement.
Issues: Whether Crown could prove that a weapon was used or that the complainant was unlawfully confined.
Result: Mr. Mines was able to persuade Crown counsel to accept pleas to the lesser charges of common assault and uttering a threat. After hearing Mr. Mines' submissions on our client's behalf, the trail judge granted our client a conditional discharge. No jail; no permanent criminal record.

R. vs. D.D. - Vancouver Provincial Court

Charge: Driving while prohibited.
Issue: Whether it was in the public interest to proceed with the prohibited driving charge.
Result: Mr. Johnson was able to persuade Crown counsel to proceed on the lesser charge of driving without possessing a valid driver's licence. Rather than the 12 month minimum mandatory driving prohibition, our client received a 4 month prohibition.

R. vs. J.L. - Surrey Provincial Court

Charge: Assault (domestic).
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in the public interest to continue with the criminal prosecution.
Result: Mr. Johnson was able to persuade Crown counsel to enter a stay of proceedings on the assault charge upon you entering into a s. 810 peace bond. No criminal record.

R. vs. R.M. - Insurance fraud investigation

Charge: Fraud Under $5000.
Issue: Whether there was a public interest in proceeding with the prosecution in this extended health insurance fraud matter.
Result: Mr. Johnson was able to negotiate a civil settlement and to persuade the investigator to not pursue a prosecution. No criminal record.

R. vs. D.P. - Vancouver provincial Court

Charge: Uttering a Threat (reduced to Peace Bond).
Issues: Whether the words uttered were clearly a threat or not.
Result: Mr. Mines was able to persuade Crown counsel that the words were vague. Crown agreed to end the criminal prosecution upon our client entering into a Peace Bond with a "no contact" condition. No criminal record.

R. vs. B.R. - Port Coquitlam Provincial Court

Charges: Mischief to Property (x2).
Issue: Whether, given our client's circumstances, it was appropriate to continue the criminal prosecution of this matter which involved damage in excess of $5000 to two vehicles.
Result: Mr. Johnson was able to persuade Crown counsel to allow our client into the Alternative Measures Program and to stay both criminal charges upon completion. No criminal record.

R. vs. V. P. - Vancouver Provincial Court

Charges: Assault, Uttering Threats.
Issue: Given the context of this threatening and assault by spitting offence, whether it was appropriate for our client to be convicted.
Result: Mr. Gauthier provided additional information to the Crown and the Court about our client and was able to persuade the judge to grant our client a conditional discharge. No criminal conviction.

R. vs. P. I. - Vancouver Provincial Court

Charges: Sexual Assault (reduced to assault).
Issue: Given our client's mental health issues, whether it was in the public interest for Crown to continue with the sex assault prosecution.
Result: Mr. Johnson was able to provide information top Crown counsel and to persuade Crown to proceed with a charge of common assault. After hearing Mr. Johnson's submissions, the court granted our client a conditional discharge. no criminal conviction. no jail, no sex offender registry.

The Defence

Consent

To prove an assault charge, the Crown must prove that the accused person actually made, or intended to make, contact with the complainant and that the complainant did not consent. Therefore, for example, one possible defence to an assault charge is that the complainant actually consented to the contact. This type of defence may apply to an assault that is alleged in the context of a bar fight.

Another defence that is typically advanced in assault cases is formed under s. 34 of the Criminal Code – the rules of “self-defence.”

Self Defence

The law allows that if a person reasonably believes that force is being used (or threatened to be used) against them, they are allowed to use force to defend themselves, or another person, so long as the force they use is reasonable. In determining whether the force used is reasonable, the court will consider various circumstances, including:

  • The nature of the force or threat;
  • The extent to which there was an alternative to using force;
  • The size, gender and physical capabilities of the parties; and
  • The history and relationship of the parties.

Essentially, self-defence is available to the extent that the accused person objectively had to defend themselves (or another person) and that the force used was not excessive. We have over 25 years of courtroom experience defending assault charges. Our experience allows us to assess cases before they get to trial and, in appropriate cases, we are able to persuade Crown counsel to not proceed with the prosecution. This may result in our client being accepted into the alternative measures program, a peace bond or an outright stay of proceedings.

Start with a free consultation.

If you are being investigated by police or if you’ve been charged with a criminal or driving offence, don’t face the problem alone. Being accused of an offence is stressful. The prospects of a criminal record or jail sentence can be daunting. Even if you think there is no defence, we may be able to help. To schedule a free initial consultation with one of our Vancouver lawyers, contact us now.