Crimes of Violence & Domestic Assault
What are Crimes of Violence?
Crimes of violence occur where unwanted physical force is threatened or actually inflicted on another person. In Canada, this is commonly referred to as ‘Assault’, and can stem from very minor allegations like a “shot in the arm” to more serious cases involving bodily harm.
The Assault provisions set out in the Criminal Code of Canada contemplate an array of potential charges. These charges have a sliding scale of potential sentences depending on the circumstances and severity of the allegations:
Assault Causing Bodily Harm
This is an assault on another person resulting in bodily harm that is neither ‘trifling or transitory.” This means that the bodily harm caused does not need to be overly serious to make out the charge.
Assault with a Weapon
This mean utilizing a weapon in the course of assaulting someone. The weapon can be an actual weapon (like a knife or a gun) or any object not actually designed to be a weapon but used as one (like a broom or a hockey stick). You don’t actually have to injure the other person to make out the charge. Simply brandishing the weapon in the course of the assault is sufficient to secure a conviction.
A serious assault resulting in serious injuries. The terms set out in the Criminal Code are: wounding, maiming, disfiguring or jeopardizing someone’s life. A stab wound, brain damage, loss of eyesight or hearing, and internal injuries are examples. House arrest is not available for aggravated assault.
Assault on a Police Officer / Resist Arrest
The Criminal Code considers it a special offence to assault a “peace officer” in the execution of his or her duties. This offence most commonly occurs where there is a struggle during the arrest process, and depending on the severity of the allegation, especially if a weapon is used during the course of the assault, a lengthy term of incarceration will likely be sought upon conviction.
Threats to Cause Death or Bodily Harm
It is an offence to knowingly utter or convey a threat to cause death or bodily harm to any person. It is also an offence to threaten to burn, destroy or damage property or threaten to kill, poison or injure an animal that belongs to a person.
Domestic Assaults are assaults against people you are in a relationship with or have a familial connection to. This most often includes current and former partners and family members. If you are charged with a Domestic Assault, the punishment can be more severe than in a normal assault. This is because domestic situations can involve relationships of trust (i.e. parent & child) and because Courts want to deter people from offending again.
Although many cases stem from ‘the heat of the moment’ and are otherwise isolated incidents, it is important to remember that in ALL cases, the Crown Prosecutor decides whether or not to proceed against you. In the Canadian legal system, it is NOT up to the complainant to decide whether the case proceeds. The Crown may still choose to prosecute a case even if the complainant doesn’t want them to.
When deciding whether to proceed against you, the Prosecutor will ask two fundamental questions:
- Is there is a reasonable likelihood of conviction?
- Is it in the public interest to proceed?
When answering those questions, the Prosecutor will consider the following criteria:
- The strength of the case against you
- The history of violence (if any) between the parties and criminal record
- The extent of the injuries sustained (if any)
- The seriousness of the allegation(s)
When considering the seriousness of the allegations, special provisions are set out in the Criminal Code and articulated in the case law to address instances of choking, spitting, and/or visible injuries. In these cases, the Prosecution will consider the allegations more serious.
Domestic cases can be difficult to navigate. It is critical that you obtain the services of a lawyer with the necessary experience and expertise to identify the weaknesses in the prosecution’s case. The right lawyer will be well equipped to advocate effectively on your behalf and fight the charges against you.
Potential Consequences and Resolutions for Assault
The consequences for offences of violence range from out of court diversion programs resulting in no criminal record, to fines, probationary terms, and imprisonment. Certain offences (if committed while using a firearm) carry minimum sentences of jail.
Do I have a Defence?
Going to trial means that the Crown must prove the allegations against you beyond a reasonable doubt. Our lawyers have the experience and expertise to challenge your charge in a number of different ways if your charge proceeds to trial. Effective trial advocacy will almost always establish a defence. These cases most often come down to a “he-said/she-said” test of credibility, where the Crown must rely on the testimony of the complainant to prove the case. This means that your lawyer must have the ability to vigorously defend you through strong and effective cross-examination techniques that will expose the frailties in the Crown’s case, and call into question the credibility and reliability of the complainant(s) or other independent witnesses who are pointing the finger at you. Quite often, these witnesses have ulterior motives (especially in cases where there are other proceedings such as civil lawsuits, family court proceedings, child custody disputes and divorce proceedings).
How can we help?
Through years of combined experience, our lawyers are keenly familiar with every possible scenario that you may confront, and we will zealously defend you by exposing the deficiencies in the Crown’s case. If your case proceeds to trial, we will use unrelenting cross-examination coupled with legal arguments tailored to the facts of your case to give you the best possible defence. Your defence may involve making applications to exclude evidence gathered against you in violation of the Canadian Charter of Rights and Freedoms, and it takes a devoted and experienced lawyer to identify all issues.
Our lawyers understand that it can be difficult to fight the temptation to tell the police your side of the story, but all too often, the Crown will use any statement or incriminating evidence against you. We can identify all of the legal arguments in your case and expose the truth through picking apart the complainant’s story, or the manner in which the police carried out the investigation.
A conviction for a crime of violence can have devastating consequences. Not only do you face a possible jail sentence, but there can also be long term ramifications, including possible restrictions on your ability travel, your immigration status, and the imposition of strict court orders that can be invasive and impede your liberty.
You are entitled to full answer and defence, and it is imperative to leave no stone unturned. Our lawyers will advance the best arguments that can be made on your behalf and will fight tirelessly to make sure that your rights are upheld against the vast resources and superiority of the State that is attempting to convict you.
R v Y.Z.
Y.Z. and a co-accused were charged with failing to provide the necessaries of life after an elderly person under their care sustained injuries during an accident and subsequently died. Ms. Ferg was retained and after securing initial disclosure (which included extensive medical documentation) the matter was set for trial. After numerous discussions with the Crown, Ms. Ferg successfully had the charge against her client completely withdrawn. Y.Z. avoided a criminal record and was able to continue working in her field.
R v A.B.
A.B. was charged with aggravated assault in relation to a jail fight. The complainant had serious injuries and the matter was scheduled for a multi-day trial. While the initial resolution offer from the Crown involved a guilty plea and jail time, after pre-trial negotiations and a defence disclosure request for internal jail records, the matter was stayed.
R v T.C.
T.C. was charged with robbery with a firearm, possession of a weapon for the purpose of committing an indictable offence and breaching a court order. While T.C. was facing several years in jail (particularly in relation to the robbery), Mr. McKay was able to reach a non-custodial resolution prior to trial. T.C. entered a plea to a lesser charge, the original counts were withdrawn and T.C. received a suspended sentence with 12 months of probation.
R v L.C.
L.C. was charged with one count of assault and one count of refusing to provide a breath sample. After negotiations with the Crown, the matter was resolved with a plea to obstruction and the other charges were stayed. L.C. received a conditional discharge which meant that after a successful period of probation, L.C. would not have a criminal record.
R v I.D.
I.D. was charged in two serious prosecutions: one involving charges of robbery and assault causing bodily harm and one involving an alleged break and enter. Both cases involved identification issues. In the first case. Mr. McKay fought the charges at the preliminary inquiry and the accused was discharged (e.g. the charges were dismissed). In the second case, the Crown ran the preliminary inquiry and Mr. McKay cross-examined on the key issue of whether or not the investigator who was trying to identify the accused followed the proper procedures regarding photo line ups. The charges were stayed after the preliminary inquiry before trial dates could be set.