Finding yourself as the accused in an assault case can be scary and disorienting. It is difficult to know what to do or who to trust. That is why you need to stay as informed as possible and do as much as you can to be prepared for the Canadian court process. If you find yourself in a situation where you are being accused of assault or aggravated assault, you must find a reputable lawyer to help you navigate the charge.
Definition of Aggravated Assault
Most people have heard the words “common assault” or “assault” and “aggravated assault.” These legal terms refer to the severity of a particular type of crime. However, there is an important distinction between what is considered common assault and aggravated assault.
Assault or common assault, according to Canadian law, broadly refers to a range of physical interactions that do not involve consent. Simply put, it is any type of unwanted physical contact or touching. This can range from fistfights to domestic disputes to premeditated assault. Even threatening to assault someone can lead to an assault charge in certain cases.
As one may assume, aggravated assault is more serious than simple assault. It implies that a violent act was intended and carried out. This crime has the potential to result in a much longer prison sentence. Injury to the victim is the main criterion that differentiates simple from aggravated assault. Aggravated assault usually involves a serious or life-changing injury, while assault can be any form of unwanted physical contact.
Requirements for Aggravated Assault
Several criteria determine whether a crime is considered aggravated assault.
Under Canadian Criminal Law, aggravated assault occurs when someone “wounds, maims, disfigures or endangers the life of the complainant:”
- Wounding can be defined as gashing someone’s skin in a way that requires medical intervention. Bruises, scrapes, and scratches aren’t typically considered aggravated assault. In order for something to be considered an assault of this calibre, there must be a permanent or severe injury.
- Maiming, in this context, can be defined as intentionally disfiguring someone’s appearance or injuring them to the point where they can’t fight back. It also covers permanent damage to a body part or organ. Female genital mutilation is also considered maiming under Canadian law.
- Endangering, in relation to aggravated assault, refers to putting one’s life at risk with the intent to assault, regardless of whether any injuries are actually carried out. If someone intentionally puts someone else’s life at risk, it can be considered endangering.
It is important to note that accidents are very rarely considered aggravated assaults. Intent is one of the main signifiers that determine whether an assault was aggravated. So, even if a person hurts someone else accidentally or unintentionally, this will likely not be considered aggravated assault under Canadian law.
Other factors to consider when categorizing an assault charge include the following:
- The intended target of an assault must be a person in order for it to be considered aggravated assault. If the target of the assault is property or assets, the assault will likely not be considered aggravated.
- An aggravated assault can negate or vitiate the defence of consent. For example, if two people agree to a bar fight, and one gets hurt, it will likely be considered common assault. In order for it to be considered aggravated, the victim must not, under any circumstances, have consented to the altercation, or that consent may be negated if the assault meets the definition of aggravated assault. That is to say, the bar fight escalated far beyond what the parties initially consented to.
Aggravated Assault vs. Assault Cause Bodily Harm
Although very similar, there is a distinction under Canadian law between Aggravated Assault and Assault Causing Bodily Harm. While they both require that the force applied must have been intentional, without consent, and done either indirectly or directly, the main difference between the two is the severity of the injuries.
According to section 267(b) of the Criminal Code, for an assault, in general, to meet the bodily harm threshold, injuries must be more than merely transient or trifling. This means that while injuries don’t necessarily need to be severe to be considered bodily harm, they must cause some level of pain or discomfort and interfere with the victim’s health. Bodily harm can also include psychological injury. The whole point of classifying the threshold for bodily harm is so that people do not try to claim an injury when there really is none.
Aggravated Assault is a step up in severity from a bodily harm charge. The main difference is how these are tried in court. An aggravated assault charge is always tried as an indictable charge, whereas an assault causing bodily harm charge can be tried as a hybrid charge. An aggravated assault charge will likely be the result of a more serious, longer-lasting injury.
Possible Defences for Aggravated Assault
There are several ways to argue against and defend an assault charge. The right defence lawyer can make all the difference in your case.
Reasonable Doubt
In order for the offender to be convicted of an assault crime, it is necessary for the Crown to prove that the offender did it with intention. If there is any bit of reasonable doubt regarding the crime—whether it be the intention or whether the severity of the injuries constitutes “aggravated assault”—your lawyer can develop a possible defence surrounding any holes or inconsistencies in the evidence.
Self Defence
Self-defence is one of the most common arguments against an aggravated assault charge. In this case, it would be proven that the accused was using reasonable force to defend themselves. In a self-defence argument, it would need to be proven that there was an actual threat of force against the accused or another person, that the assault was committed solely in an attempt for the accused to defend themselves or someone else, and that the level of force used in response to that threat was commensurate with the circumstances. That is to say, it is likely not reasonable to respond to a single shove with a pummeling, and therefore, the defence of self-defence will likely not be available.
Defence of Property
The defence of property is another consideration in an assault case. If the accused can prove that they committed the assault in an attempt to defend their property, it might be a reasonable way for a lawyer to argue against the charge. The defence of property argument also applies to property owners who are trying to remove someone from their property. Once again, the amount or threat of force used in response must be proportionate to the originating threat to the property.
Consent to the Use of Force
While this may seem like a difficult thing to argue, consent to the use of force can be applied to a case where the assault was the result of a fistfight or brawl; in this particular scenario, it can be argued that the victim did consent to participate in a fight. Therefore, there was a certain amount of choice involved in their injury.
Lack of Intent
Because intent is so pivotal when classifying an aggravated assault case, the lack of intent can be used to contest the charge. If, for example, the accused’s attack was reactionary instead of premeditated, it might be a potential argument for the case.
Charter Rights Violations
If it can be proven that any Charter Rights have been violated in the case, your lawyer can use this in your defence. According to Canadian Law, Charter Rights preserve the rights and freedoms established in a just and democratic society. Your lawyer can work with you to establish if any Charter Rights have been violated in your case.
Plea Bargain
In a case with damning evidence, and it’s unlikely that the case will be dismissed or acquitted, a plea bargain might be an option to consider. A good defence lawyer can help to negotiate reduced charges and a reduced sentence.
Penalties for Aggravated Assault
According to Canadian Criminal Codes, the maximum prison term for a person found guilty of aggravated assault is 14 years. There is no minimum sentence. This compares to assault, which has a maximum prison term of 5 years. The classification for the assault charge can make a huge difference in sentencing, immigration consequences and your ability to apply for a record suspension (often referred to as a “pardon”) in the future. That’s why it’s necessary to get a lawyer who is informed and invested in your case.
Contact Bulwark Law Today
Being accused of aggravated assault is stressful and scary. If you’re facing an assault charge in Calgary, the criminal defence lawyers at Bulwark Law can help with your case. With more than two decades of combined experience and 2,000+ successful cases, choosing a Bulwark lawyer can make all the difference.
Call us today at 403-678-7360 or book a free consultation on our website.
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