We are Vancouver Criminal Defense Lawyers who defend assault charges. Whether a domestic assault, or simply a fight that shouldn’t have happened, we defend all cases of assault to protect our clients from a criminal conviction.
Assault in Canadian Law includes almost any intentional act of violence toward another person without their consent. Simply waving your fist may be an assault. Typically, however, the alleged assault includes actual physical contact such as striking another individual.
As in all criminal matters, it is up to the prosecution to prove the elements of the offence beyond a reasonable doubt. If you face an assault charge, an experienced criminal lawyer can help you.
See also: Canada’s self-defence laws: When is it too late to defend yourself?
Spousal and Domestic Assault Allegations
Government Policy
The Attorney General’s office in Victoria has issued a policy directive to prosecutors in BC to prosecute all domestic and spousal assault allegations if it appears that there is a likelihood of successful prosecution. In some cases it may be appropriate to follow this policy. The problem is that a rigid policy may fail to address often complex family dynamics.
Typically domestic allegations are of Assault, Uttering Threats or Criminal Harassment. The policy concerns are the same in all three cases, but every domestic allegation case turns on its own facts and requires a flexible approach.
Defending Spousal/Domestic Allegations – A Flexible Approach
The government policy may be rigid, but a Criminal Lawyer’s approach to defending Assault, Harassment and Threatening allegations in a family context must be flexible to take into account the future needs of the parties and the public interest in preserving family harmony. Consequently, a Criminal Lawyer must assess the merits of the case, the family dynamic and the personalities in order to craft an appropriate solution.
It is essential that your defence be based on a flexible plan that lays the groundwork to deal with unanticipated developments. As Criminal Defence Lawyers with many years of experience dealing with spousal and domestic assault, threats and harassment allegations, we know how to develop a plan to deal with the charges. In over 90% of all domestic cases our clients avoid a criminal record when they follow our advice.
Call our Criminal Law Office for a free no-obligation consultation. We know how to deal with assault, uttering threats and harassment charges.
Assault – Criminal Code Section 265
Elements of the Offence
The prosecution must prove that the accused:
1. applied force either directly or indirectly to someone without their consent,
OR
2. attempted or threatened by act or gesture to apply such force to another person causing that person to reasonably believe the accused had the ability and intention to carry it out;
OR
3. while openly wearing a weapon either begged or impeded another person.
To find a person guilty of assault, the prosecutor must prove each and every element of the offence beyond a reasonable doubt.
The first issue the court must resolve is whether the actions alleged did in fact take place .i.e., whether the accused applied force to the object of the assault (i.e. the complainant) or attempted by act or gesture to apply such force. It is then to the court to determine whether the person assaulted had the capacity to consent and freely consented to the act with an appreciation of the risks involved. In the case of attempted assaults or threatening by act or gesture, the court must assess the information available to the complainant to assess whether they had reasonable grounds to believe that the accused would follow though with the act that had been attempted or threatened.
If the court is not satisfied beyond a reasonable doubt of each and every element of the offence, the accused is entitled to be found not guilty.
Uttering Threats – Criminal Code Section 264.1
The prosecution must prove that the accused knowingly caused the object of the threat, typically the complainant, to receive a threat to:
1. cause death or bodily harm to any person;
OR
2. damage, destroy or burn property,
OR
3. hurt or kill their animals i.e. pets or livestock.
To find a person guilty of uttering threats, the court must find that each and every element of the offence has been proven beyond a reasonable doubt.
The court must first determine whether the alleged threat was in fact made. The next step is to determine whether the accused knowingly uttered the threat. Finally, under this section of the Criminal Code the threat must be contemplated to have been either to cause death or bodily harm to any person, to damage, destroy or burn their property, or to hurt or kill their animals.
The wording of the section creates a defence in that the alleged threat may not be to cause bodily harm. In such case, however, the statement of the accused may constitute a gesture that can be considered an assault.
If the defence raises a reasonable doubt with respect to any of the elements of the offence, the court must acquit the accused.
Criminal Harrassment – Criminal Code Section 264(1)
In most criminal harassment cases, the complainant contacts the police with information about the actions of the accused which triggers an investigation that may lead to charges being laid. A pattern of behaviour must be demonstrated. The conduct prohibited as criminal harassment is:
1. Repeatedly following a person place to place,
OR
2. Repeatedly communicating with a person directly or indirectly,
OR
3. Watching them in either their home or place of work,
OR
4. Watching them in either the home or place of work of someone they know,
OR
5. Engaging in threatening conduct directed at the complainant or their family.
To prove the case beyond a reasonable doubt, the prosecution must show a pattern of behaviour that falls in one of the above-noted categories. They must show that the complainant, as a result of the behaviour of the accused, feared for their own safety or of anyone know to them, and that the accused knew or was reckless or was wilfully blind as to whether the complainant was harassed.
The judge must be satisfied beyond a reasonable doubt that the accused engaged in the prohibited conduct, that the complainant was indeed harassed, that the defendant was at a minimum wilfully blind or reckless as to whether the complainant was harassed, and that the conduct caused the complainant to reasonably fear.
Conduct that the accused is lawfully entitled to conduct does not constitute Criminal Harassment.
If the Criminal Defence Lawyer can raise a reasonable doubt about any of the essential elements of the offence, the accused is entitled to be found not guilty.
