VIOLENT OFFENCE (All forms of Assault)
At its heart, assault is defined as the intentional touching of another person – whether directly or indirectly (for instance, using an object) without that person’s consent. The more serious types of assault are assault with a weapon, assault causing bodily harm and aggravated assault. The police and Crown will charge someone with those more serious forms of assault if there is evidence that the person not only committed an assault (as define above) but also either used a weapon to do so, or caused injury or harm to the victim’s body. The most serious form of basic assault is called “aggravated assault” and is charged where the evidence shows that there was a more serious injury including wounding, maiming, disfigurement or endangerment of life. Aggravated assault carries a maximum sentence of fourteen years in jail and for non-citizens can lead to automatic deportation following the sentence.
Just because someone uses force against another person without that person’s consent does not automatically mean guilt, however. The most common defences to charges of assault are self-defence and consent.
Self-defence is extremely technical and is often successfully invoked not only in simple assaults but also the most serious forms of violence including assault with a weapon, assault causing bodily harm, aggravated assault, and murder. The Parliament of Canada recently amended the law of self-defence to simplify its application, but in the coming years, those changes, like any to the law, will create opportunities for lawyers to invite the Courts to consider new contexts and circumstances that may justify the defence.
Although it may seem hard to understand at first, it is also possible for what looks to police and other outsiders to be an assault, to actually be a confrontation in which both participants believe they are acting in self-defence. That is because what is going on in the mind of the participants during the incident is critically important. While that might be easy say or understand, getting it across at trial can be difficult and require great skill – and for someone charged with a violent offence, whether that can be done successfully can make a life-changing difference.
Many assault cases turn out not to be assaults at all. Instead, it is common that both participants have engaged in the confrontation voluntarily. This is called the “consent defence”, and while it is straightforward in theory, success in trial requires an effective challenge to the Crown’s case, including cross-examination, to show the Court our client’s side of the story.
Click here to review the results of some our recent work assisting clients charged with assault and other violent offences.
One of the most common, if not the most common form of assault charge is the “domestic” or “spousal” variety. The Canadian Criminal Code does not actually have any special section when there is an assault between spouses. However, in practice, spousal or domestic violence or assault charges are treated differently than other kinds. Police agencies in British Columbia and the provincial Crown have formal policies dictating how to deal with the allegations. As all too many people charged with spousal or domestic assault come to learn, oftentimes the police policy is “Arrest and charge first. Sort it out later.”
Often, these cases come down to a “he said / she said” disagreement about what happened. In many of these cases, we are able to demonstrate to Crown counsel that the evidence is either not strong enough to justify continuing with the prosecution, or that in fact the Client is innocent of the accusation.
In many other cases, we can negotiate with the Crown to drop the assault charge in return for the Client agreeing either to engage in a series of restorative measures to demonstrate that he or she understands and takes responsibility for the incident, or by securing the Crown’s agreement to drop the charge in return for a type of restraining order, called a “recognizance” (or a s. 810 peace bond). When the case is resolved that way, then the client ends up with no criminal record.
Sometimes, however, the case has to go to trial, and in that case, complicated issues of credibility need to be resolved and the client needs effective representation – both to challenge the Crown’s case and to present their own.
CRIMINAL HARASSMENT (Stalking)
Over the past number of years, police in British Columbia have dramatically increased the use of the “stalking” or “criminal harassment” charge to control and punish a person when he or she will allegedly just not leave someone alone. Common features to most criminal harassment cases include evidence that the accused person repeatedly followed or communicated with the victim; watched or loitered near places where the victim lives, works or goes to school; or engaged in threatening conduct or behaviour.
The charge is often preceded by a “warning” that police give to the accused beforehand to leave the victim alone. The purpose of the warning is not entirely based on a desire to give the accused a “head’s up.” It is also designed to be an effective way to build up evidence – how can someone claim ignorance, if the police came and told them to leave the victim alone?
To truly prove the charge, however, the Crown has to prove that the accused knew the behaviour in question was unwanted; that the behaviour caused fear for the victim, and that that fear was reasonable.
The charge looks straightforward on its face, and many police and even some prosecutors look at it as though it is usually “open and shut.” However, there are a number of important technicalities both prosecuting and defending this charge and skilful work at trial often leads to an acquittal.
Because of the charge can be quite technical, criminal defence lawyers will often negotiate a restraining order, called a “recognizance” (or a s. 810 peace bond). When the case is resolved that way, then the client ends up with no criminal record.
Threatening is much like criminal harassment, but usually consists of fewer incidents, and more direct evidence that the accused was attempting to intimidate or make a victim feel menaced or fearful. While the Crown does not have to prove that an accused meant to carry out a threat, and while they do not need to prove that the recipient believed he would do so, the Crown does have to prove that the accused meant to instill fear.
Just as with stalking, the offence is not as easy to prove as it looks. Beyond obvious defences like the incident did not take place, or the Crown cannot prove who made the threat, successful and creative criminal defence lawyers will require the Crown to overcome the issue of intent – just what was it that the person meant?
KIDNAPPING / UNLAWFUL CONFINEMENT
Taking a person against his or her will, and holding them is either kidnapping or unlawful confinement. Kidnapping has an element of moving the victim from place to place.
These are extremely serious charges and are usually hard fought cases, and the Crown often seeks a lengthy sentence. Mr. Duncan had both prosecuted and defended such cases.
Because of the seriousness of the offence, police will commonly spare no expense, especially in kidnapping cases. Police will use human and automated surveillance, electronic eavesdropping and interception (wiretaps), real-time location evidence (including tracking devices and cell tower data), forensic evidence like DNA and fingerprints, eyewitness evidence and more. The defences are just as varied.
The penalties for these offences (especially kidnapping) are very high. Even first-time offenders are usually looking at very lengthy penitentiary sentences, commonly more than ten years in length. Having skilled and experienced counsel to test the evidence is vital to a successful defence.
EXTORTION & BLACKMAIL
“Or else …” These words are spoken by people as young as kids on the playground, to the most violent organized criminals. Threatening or using violence to obtain something is typically regarded by the legal system as extortion. Using a firearm during the commission of the offence (including simply brandishing one) carries a mandatory minimum sentence of 4 years.
But as many people know, many disputes have a legitimate background, and sometimes people do not express themselves the way they would like. Often, claims of extortion are more complex and less straightforward than the victim tells the police. As with other serious offences, extortion requires an experienced lawyer acting in your defence to make sure you are protected.
Often used almost interchangeably with theft, robbery is actually an extremely serious criminal offence that is only used where an accused combines violence or the threat of violence with stealing or an attempt to steal. The maximum penalty for robbery is life in prison, and the Government recently removed “house arrest” sentences from availability for robbery charges. When robbery is charged, the Crown treats it very seriously and so should anyone accused of it.
As in the example above of spousal or domestic assault, there is no special charge of “home invasion”, but when there is a break and enter of an occupied dwelling house, Courts are required to consider that fact “aggravating,” which may increase the sentence or penalty. Home invasion cases have become more common, particularly in areas that have a higher percentage of marijuana grow operations, which often provide a tempting target for people looking for easy money.
The defences to home invasion are varied, and those accused of it need an aggressive and knowledgeable lawyer to not only defend, but be ready to show courts how there is really no such thing as a run-of-the-mill “home invasion.” Because the consequences can so serious, every single and argument and defence must be prepared.
With the possible exception of the rise of terrorism offences since September 11, 2001 and possibly offences going to the core of the democratic state (such as treason), the most serious criminal offence within the Criminal Code is homicide. The most experienced police officers and Crown counsel are involved in conducting an investigation and, in appropriate circumstances, prosecution of a fatality.
While death is always tragic, it is not always murder or even manslaughter. Anyone accused of causing someone else’s death must have the benefit of legal advice as soon as possible to make sure that their rights are protected. They must also have the benefit of an experienced defence as the long road to the search for truth begins. No expense is spared in the prosecution of people accused of murder, and commonly the state’s resources outpace the individual’s.
Thankfully, the judicial system remains as committed to fair trials for those accused of this most serious offence as it does in relation to any other offence on the books. Indeed, a review of appellate and superior court decisions confirms that the Canadian judiciary works extremely hard to ensure that an accused receives a fair trial.
A fair trial does not always mean a perfect trial, however. Experience and good judgment are essential qualities in the defence lawyer, and when they are present, there is a deep trust between client and lawyer.
For a sampling of recent successes that Vancouver Criminal Defence Lawyer Emmet J. Duncan has enjoyed for his Clients, browse his Recent Successes in Defending Weapons and Violent Offences.
** Please be advised that these definitions and information are not comprehensive legal definitions. They are designed to provide a brief and basic description of some of the most common criminal charges. As with all criminal charges, available defences will vary depending on the individual circumstances of each case. As such, the content of this website is not legal advice. Do not use or otherwise rely on any of the following content without first seeking proper legal advice.**