Assault causing bodily harm Lawyers in Canada

The Crown is the prosecutor. Section 11(d) of the Canadian Charter of Rights and Freedoms gives a person charged with an offence the right to be presumed innocent until proven guilty, so the Crown is the side that has to prove the charge.

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 section also covers an attempt or a threat, by an act or a gesture, to apply force, if the person has present ability to carry it out. Section 265(3) lists situations in which no consent is obtained: where the complainant submits or does not resist by reason of force, threats or fear of force, fraud, or the exercise of authority.

Section 267 then adds the result. In committing an assault, the person causes bodily harm to the complainant. Section 2 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 definition has two parts. The injury must interfere with health or comfort, and it must be more than transient or trifling. Whether the evidence meets it is for the court.

The same section covers other kinds of assault under separate paragraphs: carrying, using or threatening to use a weapon, and choking, suffocating or strangling the complainant. A charge that names bodily harm is about the injury. Aggravated assault under section 268 is a different charge again, with different words: wounds, maims, disfigures or endangers the life of the complainant.

Section 267 makes the offence one that can be prosecuted in two ways. On indictment the maximum is 10 years in prison. The other way is as an offence punishable on summary conviction. The Criminal Code calls an offence that can go either way a hybrid offence.

Unless the law says otherwise, section 787 sets the limit for a summary conviction offence: a fine of not more than $5,000, imprisonment of not more than two years less a day, or both. Section 267 does not set a minimum term.

A maximum is the ceiling the law allows. It does not say what sentence a court would give in any case.

For comparison, assault under section 266 carries up to five years on indictment, or it can be prosecuted as a summary conviction offence. Aggravated assault under section 268 is indictable only, with a maximum of 14 years.

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, including the nature of the force or threat, the person's role in the incident, whether any party used or threatened to use a weapon, and the nature and proportionality of the person's response.

Defence of property is in section 35. It gives a defence where a person believes on reasonable grounds that they are in peaceable possession of property, believes that another person is about to enter or take or damage the property, acts for the purpose of preventing that, and the act is reasonable in the circumstances.

Consent is part of the definition of assault. The force must be applied without the consent of another person. Section 265(4) deals with an accused who alleges a belief that the complainant consented: where there is sufficient evidence, the judge instructs the jury to consider the presence or absence of reasonable grounds for that belief. Whether any of this 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. 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.

Whether the harm fits the definition of bodily harm in section 2 is another question the evidence has to answer.

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, by a judge alone or with a jury.

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 adds that primary consideration goes 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.

What happens on appeal depends on how the charge was prosecuted. A summary conviction appeal in Ontario goes to the Superior Court of Justice in the region, district or county where the case was decided. An appeal from a conviction on indictment goes to the court of appeal. It is as of right on a question of law alone, with leave on questions of fact or mixed law and fact, and with leave 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.