Assault 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.

Section 265 sets out the ways a person commits an assault. The first is that, without the consent of another person, the person applies force intentionally to that other person, directly or indirectly. The second is that the person attempts or threatens, by an act or a gesture, to apply force to another person, if they have, or cause the other person to believe on reasonable grounds that they have, present ability to carry out the purpose. The third is that, while openly wearing or carrying a weapon or an imitation of one, the person accosts or impedes another person or begs.

Consent matters in the first of those. Section 265(3) says that no consent is obtained where the complainant submits or does not resist by reason of the application of force, threats or fear of force, fraud, or the exercise of authority. Section 265(4) deals with an accused who alleges a belief that the complainant consented. If there is sufficient evidence and, if believed by the jury, it would constitute a defence, the judge instructs the jury to consider the presence or absence of reasonable grounds for that belief.

Section 265(2) says the section applies to all forms of assault, including sexual assault, threats to a third party and causing bodily harm. The wording of the definition does not make an injury a part of the basic offence. Injury is the subject of separate charges such as the ones in sections 267 and 268.

Section 266 says that everyone who commits an assault is guilty of an indictable offence and is liable to imprisonment for a term not exceeding five years, or is guilty of an offence punishable on summary conviction. A charge that can go either way is a hybrid offence.

For a summary conviction offence, section 787 sets the general limit unless the law says otherwise: a fine of not more than $5,000, imprisonment of not more than two years less a day, or both.

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

The penalties for the related charges are higher. Assault with a weapon, assault causing bodily harm, and assault by choking, suffocating or strangling carry up to 10 years on indictment under section 267, or they can be prosecuted as summary conviction offences. Aggravated assault under section 268 carries up to 14 years on indictment.

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, whether there were other means available to respond, the person's role in the incident, 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 and that another person is about to enter it, take it or damage it. They must act for the purpose of preventing that, and the act must be reasonable in the circumstances. Whether either defence applies to a particular case is a question for the court.

A peace bond is a different process. Under section 810, a person who fears on reasonable grounds that another person will cause personal injury to them or to their intimate partner or child, or will damage their property, may lay an information before a justice. If the justice or court is satisfied that the fear has reasonable grounds, it may order the defendant to enter into a recognizance to keep the peace and be of good behaviour for up to 12 months. The court may add reasonable conditions.

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.

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.