Aggravated assault Lawyers in Canada

The Crown is the prosecutor. A person charged with an offence is presumed innocent until proven guilty, so the Crown is the side that has to prove the charge. That presumption is part of section 11(d) of the Canadian Charter of Rights and Freedoms.

The charge starts with an assault. Under section 265, a person commits an assault when, without the consent of another person, they apply force intentionally to that other person, directly or indirectly. The same section also covers an attempt or a threat, by an act or a gesture, to apply force to another person, if the person has present ability to carry it out.

Section 268 then adds a result. A person commits aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. The section joins those four results with the word or, so each one is a different way to meet it. Which result is alleged, and what evidence is offered for it, is part of the case.

Section 267 is a separate charge. It covers an assault in which the person carries, uses or threatens to use a weapon, causes bodily harm to the complainant, or chokes, suffocates or strangles the complainant. Section 2 of the Criminal Code defines bodily harm as any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature. The words in section 268 are different: wounds, maims, disfigures or endangers life.

Section 268(2) makes aggravated assault an indictable offence with a maximum of 14 years in prison. The section sets a maximum and no minimum term. A maximum is the ceiling the law allows. It does not say what sentence a court would give in any case.

The nearby sections set lower maximums. Assault under section 266 carries up to five years on indictment, or it can be prosecuted as a summary conviction offence. Assault with a weapon, causing bodily harm, or by choking, suffocating or strangling under section 267 carries up to 10 years on indictment, or it can be prosecuted as a summary conviction offence. Section 268 has no summary conviction option.

A conviction can also bring a firearms and weapons prohibition. Section 109(1)(a) applies to an indictable offence in the commission of which violence against a person was used, threatened or attempted, and for which the person may be sentenced to imprisonment for ten years or more. Aggravated assault carries up to 14 years. Where section 109 applies, the court shall make an order prohibiting the person from possessing firearms, weapons and ammunition for the period that the section sets.

Self-defence is in section 34. It gives a defence where a person believes on reasonable grounds that force is being used against them or another person, or that a threat of force is being made. The act must be committed for the purpose of defending or protecting themselves or the other person, and it must be reasonable in the circumstances.

Section 34(2) lists factors the court shall consider. They include the nature of the force or threat, whether there were other means available to respond, the person's role in the incident, whether any party used or threatened to use a weapon, the size, age, gender and physical capabilities of the parties, and the nature and proportionality of the person's response. Whether self-defence applies to a particular case is a question for the court.

Charter rights apply from the start. Section 10 gives everyone on arrest or detention the right to be informed promptly of the reasons and the right to retain and instruct counsel without delay and to be informed of that right. Section 24(1) lets anyone whose Charter rights were infringed apply to a court for a remedy. Under section 24(2), evidence obtained in a manner that infringed Charter rights is excluded if admitting it would bring the administration of justice into disrepute.

Another question in any aggravated assault case is whether the Crown can prove that the injury or danger fits the words of section 268. That is a matter for the evidence at trial.

In Ontario, every charge under the Criminal Code starts in the Ontario Court of Justice, and about 95% of charges are completed there. The Superior Court of Justice can try any indictable offence but generally tries only the most serious ones. The court's own description names murder, manslaughter, serious violent offences such as aggravated assault and sexual assault, firearm offences, robberies, home invasions, criminal organization offences and drug trafficking.

A person who is arrested may be taken before a justice for a release decision. Under section 515, the justice shall make a release order without conditions unless the prosecutor shows cause why detention in custody is justified or why another order under that section should be made. Section 493.1 says that the person making the decision gives primary consideration to release at the earliest reasonable opportunity and on the least onerous conditions that are appropriate. Section 11(e) of the Charter protects the right not to be denied reasonable bail without just cause. Section 515 has other rules for particular situations, and a lawyer can explain how they apply.

After a conviction on indictment, an appeal goes to the court of appeal. A person may appeal as of right on a question of law alone. An appeal on a question of fact, or of mixed law and fact, needs leave. So does an appeal against sentence.

Legal Aid Ontario may pay for a lawyer if the person qualifies and is charged with a crime that could mean jail on conviction, or is 12 to 17 and charged under the Youth Criminal Justice Act. Duty counsel is a lawyer at the courthouse for that day. Duty counsel can advise on rights, ask to delay a court date, act at a bail hearing, help with a guilty plea, speak at sentencing, and meet the Crown, for people who qualify and have no lawyer.

A legal aid certificate pays a roster lawyer, one approved to take legal aid clients, for the length of the criminal case. Applications are online or by phone at 1-800-668-8258.

The Law Society of Ontario keeps a public Lawyer and Paralegal Directory, where a lawyer's licence can be looked up. The Ontario lawyers on this site are listed by city. Nothing on this page ranks or recommends any of them.