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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. v. R.L. – New Westminster Supreme Court

Charge: Sexual Assault.
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to continue with the prosecution in this retrial after a deadlocked jury decision.
Result: upon considering all of Mr. Mines' representations, Crown counsel entered a stay of proceedings. No jail. No criminal record.

R. vs. J.H. – Richmond Provincial Court

Charge: Sexual Assault.
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to continue with the prosecution in this retrial after a deadlocked jury decision.
Result: upon considering all of Mr. Mines' representations, Crown counsel entered a stay of proceedings. No jail. No criminal record.

R. vs. B.J. – Downtown Community Court

Charge: Theft of property of a value not exceeding $5,000
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with the prosecution.
Result: Mr. Johnston identified weaknesses in the available video evidence which persuaded the Crown to direct a stay of proceedings on the charge. No jail. No criminal record.

R. vs. A.M. = Vancouver Provincial Court

Charges: Assault with a Weapon; Assault Causing Bodily Harm.
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with the prosecution.
Result: Mr. Johnston provided Crown counsel with information about our client’s circumstances, including his lack of prior criminal offending, his efforts at rehabilitation, and the fact that a conviction for either offence could result in the client’s deportation, an outcome which Mr. Johnston argued would be disproportionate to the seriousness of alleged offences. At the same time, Mr. Johnston pointed out weaknesses in the evidence against our client. The Crown directed stays of proceedings on both charges. No jail. No criminal record.

R. vs. A.V. – Vancouver Provincial Court

Charges: Uttering Threats x3; Criminal Harassment; Breach of Release Order (domestic).
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with the prosecution of these matters.
Result: Mr. Gauthier was able to persuade Crown counsel that it was more appropriate to deal with these matters in the context of Family Court. Ultimately Crown did not approve the uttering threats and criminal harassment charges and Mr. Gauthier persuaded Crown that there was no public interest in prosecuting the breach charge and to enter a stay of proceedings. No jail. No criminal record.

R. vs. K.L. – Terrace RCMP Investigation

Charges: Assault.
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to proceed with the prosecution.
Result: Mr. Mines presented additional information to Crown counsel which resulted in Crown  declining to approve any charge.  No criminal record.

R. vs. O.P. – Victoria Provincial Court

Charges: Voyeurism; Criminal harassment.
Issue: Whether Crown could prove that our client actually recorded and distributed images without consent of the complainant.
Result: Mr. Gauthier was able to persuade Crown counsel to proceed only on the criminal harassment charge. After hearing Mr. Gauthier's submissions, the trial judge granted our client a conditional sentence order with a curfew for two months. No jail.

R. vs. T.B. – Vancouver Provincial Court

Charges: Indecent Act; Assault With a Weapon; Possessing of a Weapon for Dangerous Purpose (x2); Robbery; Uttering Threats; Theft of Property of a Value not Exceeding $5,000.
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with prosecution of all counts; whether a jail sentence was appropriate.
Result: Mr. Johnston identified weaknesses in the evidence which persuaded the Crown there was no reasonable prospect of conviction on the Indecent Act charge.  Mr. Johnston persuaded Crown counsel  to resolve the case on three of the remaining counts and to stay all remaining charges. After hearing Mr. Johnston's submissions regarding our client's personal circumstances and his significant rehabilitation efforts,  the Court agreed to release our client from custody and to place him on a probation order with conditions supporting his rehabilitation. No further jail time.

R. vs. M.G. – RCMP Investigation

Charges: Possession for the purpose of trafficking.
Issue: Whether there was a substantial likelihood that Crown could establish that our client was a willing participant in the alleged drug trafficking scheme.
Result: Mr. Mines was able to provide information and persuade police to not seek any criminal charges against our client. No No charges were approved. Our client's vehicle was retuned. No criminal record.

R. vs. A.K. – New Westminster Provincial Court

Charges: Assault.
Issue: Whether there was a reasonable likelihood of a conviction and whether it was in the public interest to proceed.
Result: Mr. Mines was able to provide additional information and persuaded Crown counsel stay the charge upon our client completing the Alternative Measures Program. No criminal record.  

R. vs. K.L. – Vancouver Police Investigation

Charge: Assault Peace Officer.
Issue: Whether there was a substantial likelihood of a conviction in this case which involved an alleged assault of a police officer.
Result: Mr. Gauthier provided information and a video to Crown counsel which showed that the police made an unlawful arrest thereby giving our client lawful grounds to defend himself. Mr. Gauthier was able to persuade Crown to not approve any charges. No criminal record.

R. vs. C.D. – Vernon Provincial Court

Charges: Assault with a weapon; Mischief to property.
Issues: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to proceed with the criminal prosecution in this case where our client allegedly intentionally collided with the complainant's vehicle.
Result: Mr. Gauthier provided additional information to Crown counsel and was able to persuade Crown to resolve this matter with a s.810 Recognizance (Peace Bond).    

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.