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Straw Buyers and Illegal Car Exports

The trade of vehicles between North America and China has garnered significant attention due to the involvement of illicit practices. Specifically, these practices primarily revolve around exports from North America to China and often entail the use of straw buyers. This blog will shed some light on the legal implications surrounding these car exports, and examine the role of straw buyers, and the legal consequences associated with their involvement.

The Illegal Car Export Market in Vancouver

Many luxury brands and in particular SUVs are sought after in China due to their premium status. Criminal organizations have identified an opportunity for profit by purchasing luxury vehicles in Vancouver with proceeds of crime and exporting those vehicles to foreign markets, such as China, for a substantial profit. Some examples of sought-after brands include but are not limited to:

• BMW,
• Mercedes-Benz,
• Audi,
• Porsche,
• Lexus,
• Land Rover,
• Cadillac, and
• Maserati.

These organizations are sophisticated and employ various people to achieve their ends.

What is a Straw Buyer?

In short, a straw buyer is someone who purchases an asset on behalf of another party. Straw buyers act as intermediaries in the car export trade, purchasing vehicles on behalf of criminal networks. In some cases, the straw buyer is a knowing part of the criminal organization. They will employ fraudulent means, such as providing false identities, falsifying financial information, and engaging in deceptive transactions, to bypass regulations and deceive legitimate sellers.

In other cases, a criminal organization will convince otherwise innocent straw buyers to purchase the target vehicle in their name. Here is a hypothetical scenario:

1. A member of a criminal organization, John, approaches a potential straw buyer, Sam.
2. John offers Sam $5,000 for Sam to lease a fully loaded 2024 BMW X5 and then transfer the BMW to John.
3. John tells Sam that:
   1. John will make the monthly payments;
   2. John will buy the vehicle; or,
   3. in any event, Sam can report the vehicle stolen.
4. Sam agrees.
5. John gives Sam $5,000 and the down payment for the vehicle.
6. Sam goes to the dealership and leases the BMW.
7. Sam takes the BMW to John and hands over the keys.
8. John exports the BMW.
9. Later, John stops giving Sam money for the lease.

In this scenario, Sam is not part of the organization. John is using Sam’s credit to purchase the luxury vehicle, not intending to pay Sam back. This greatly increases the profit the organization makes from the final sale of the car and puts Sam in a challenging and complicated legal situation.

Legal Implications

Straw buyers are frequently left holding the bag and immediately face numerous consequences. First, the seller of the vehicle may sue the straw buyer for breach of contract and the value of the lost vehicle. If the vehicle is not recovered, this amount can be well over $100,000.

Second, the straw buyer will have difficulty suing for the promised lease payments because the courts do not enforce illegal contracts. Generally, a contract made for an illegal purpose, such as defrauding a dealership or smuggling goods, is not enforceable.

Third, the straw buyer may be investigated and charged with Fraud contrary to the Criminal Code of Canada.

Related: The Police Took My Stuff, Can I Get it Back?

Conclusion

If you or someone you know may be involved in acting as a straw buyer, contact the experienced lawyers at Filkow Law for legal assistance.

In Canadian criminal law, sexual cases are common – and complicated. This may be surprising because cases of simple assault, without the sexual component, are not usually complicated. It is the “sexual” component that increases the complexity of these cases by a wide margin. There are a few reasons for this, most of which relate to the special rules of evidence involved.

Reason #1 – Prior Sexual History Evidence

The first reason for the complexity of sexual assault cases is that the defence cannot introduce evidence of any prior sexual history of the complainant without first getting permission from the trial judge. The reason for this is that, in the past, judges and juries would sometimes find an accused not guilty of sexual assault because they thought the complainant’s prior sexual history made them more likely to have consented to sexual activity during the incident or less worthy of belief about how they were sexually assaulted. This is tied to old-fashioned notions that a woman who has had many sexual partners is somehow immoral or a person with a bad reputation.

The idea that a woman consented to sex during an alleged sexual assault because she had previously consented to sex, either with others or the same person, is a discredited myth. Defence lawyers must get permission from judges before they can introduce the prior sexual history of complainants to guard against these erroneous ideas. We call these ideas the “twin myths” of sexual assault.

Today, few people subscribe to the twin myths of sexual assault, but the rule remains because the law guards against the mere risk that a judge or jury’s thinking might be tainted by the twin myths.

The rule against introducing evidence of a complainant’s prior sexual history is strict. Even if the defence has no intention of bringing up this history to support the twin myths, that is not enough to get permission from the judge to introduce the evidence. The defence must also show that it is relevant to a central issue of the case that is not outweighed by the danger to the proper administration of justice.

The strictness of the rule exists because the courts are also concerned about the privacy rights of complainants. The law wants to prevent a situation where a complainant is reluctant to report that they have been the victim of a sexual assault because their privacy might be invaded during the trial.

Applications to admit the prior sexual history of complainants into evidence are further complicated by the fact they take place in two stages. At the first stage, called the screening stage, the defence must show that the evidence is capable of being admissible. In the second stage, the defence must show that the evidence is relevant to a central issue in the case. At this stage, the government appoints a lawyer to represent the complainant. That means the defence must argue against two lawyers in the second stage: the complainant’s government-appointed lawyer and the Crown prosecutor.

Reason #2 – Complainant Records

The second reason for the complexity of sexual assault cases is that the defence cannot introduce evidence of any prior records of a complainant without getting permission from the judge first. “Records” includes any material over which the complainant has a privacy interest. That means emails, text messages, letters, social media messaging, or diary entries may count as records.

The first question is whether the defence has the records at all. The Crown is not required to disclose any records the complainant has to the defence even if they are relevant to the trial. If the defence wants to even see those records, they must make an application to a judge.

If the defence wants to tender something they have received from the accused (and not the Crown), the question becomes whether what the defence wants to introduce in evidence is a record. Oddly, this is a choice that the defence must make. If they are wrong, then the Crown or judge will object and require the defence to properly apply to introduce the evidence. If this happens during the trial, the defence risks not being allowed to introduce the evidence because the application to do so needs to be made before the trial.

As with an application to admit the prior sexual history of a complainant, an application to admit a complainant’s prior records takes place in two stages. There is a screening stage first, then a hearing if the defence is successful at the screening stage. The complainant has a lawyer appointed to them by the government. Once again, the defence must argue for the admissibility of the complainant’s records against two lawyers: the complainant’s lawyer and the Crown.

Although some cases of sexual assault will not involve pre-trial applications from the defence to introduce evidence of the complainant’s prior sexual history or records, most cases involve at least one of these applications. This is because most sexual assault allegations are made against someone who is known to the complainant, sometimes very well known (e.g., a prior romantic partner). The accused and complainant will commonly have a prior sexual history of consensual sexual activity together and/or a documented history of communications together. Sexual assaults where the victim was randomly attacked on the street by a stranger are very rare.

Related: Sexual Assault and Consent Laws FAQ

Reason #3 – Lack of Consent is a Key Ingredient of Sexual Assault

Yet another reason why sexual assault trials are complicated is that a key ingredient in sexual assault offences is the lack of consent from the complainant. Violence resulting in cuts, bruises or broken bones is evidence of a lack of consent, however, sexual assault allegations frequently occur without any obvious violence.

Sometimes there is no dispute that the complainant and accused had sexual activity together. The only dispute is whether that sexual activity was consensual. In such cases, forensic evidence like matching the DNA of semen with the accused’s DNA might be irrelevant. The question entirely becomes one of credibility and reliability. That means putting a microscope on every little thing that occurred between the complainant and accused before, during, and after the alleged sexual assault.

In some cases, the issue is the complainant’s capacity to consent. This can occur when the complainant was highly intoxicated by drugs or alcohol during the alleged sexual assault. The law says that a complainant is still capable of consenting to sexual activity while intoxicated, but there is a line where the complainant no longer has that capacity. If the accused had sexual activity with the complainant during that time, they are guilty of sexual assault.

Trying to discern where the line between capacity and incapacity to consent from the complainant, and when that line may have been crossed, can be complicated. In some cases, the Crown and Defence will both choose to call expert witnesses (toxicologists) who offer competing evidence about a complainant’s capacity to consent based on how much intoxicant a complainant consumed and how they reacted to it.

Conclusion

Sexual assault is a complicated and highly specialized area of criminal law. If you are accused of sexual assault, you need expert lawyers at Filkow Law to help you defend yourself from the charge. Call now for a consultation – (604) 558-8778.

Road rage is a significant problem in Canada. The outcomes of road rage include threats, insults, violence, mischief, injuries and even death. This article will explore what road rage is and the legal consequences of road rage in Canada.

What is Road Rage?

Road rage generally refers to aggressive or violent behaviour exhibited by drivers in response to perceived offences or frustrations while on the road. Road rage can involve a number of different behaviours, including:

• aggressive honking;
• gesturing;
• tailgating, or following another driver too closely;
• brake checking;
• throwing objects;
• displaying or brandishing a weapon;
• cutting another driver off;
• chasing another driver;
• speeding excessively;
• running through red lights;
• verbal confrontations, or threatening and exchanging insults with another driver;
• physical altercations, or pushing and striking another driver or their vehicle; and
• deliberately causing a collision.

There are a number of factors that contribute to road rage. These include stress, frustration, and anger. Road rage can also be exacerbated by traffic congestion, bad weather, and long commutes.

Is Road Rage a Crime?

Road rage itself is not explicitly defined as a specific criminal offence under Canadian law. However, many of the aggressive and violent behaviours associated with road rage are crimes. These offences may include:

• Dangerous Driving: Engaging in driving behaviour that poses a significant risk to the safety of others, such as excessive speeding, reckless maneuvers, or deliberately causing collisions.
• Assault: Physically attacking or threatening another person during a road rage incident, which can be charged as assault.
• Assault With A Weapon: Using one’s vehicle as a weapon in the course of an assault is assault with a weapon.
• Assault Causing Bodily Harm: Assaulting someone and causing them any injury is assault causing bodily harm.
• Aggravated Assault: Assaulting someone and causing them serious injury or endangering their life is aggravated assault.
• Hit and Run: Hitting the other driver’s vehicle and then leaving the scene of the accident.
• Mischief: Intentionally damaging or vandalizing another person’s vehicle or property, such as damaging the windshield or side mirror.
• Uttering Threats: Making threats to cause harm or kill another person.
• Criminal Negligence Causing Injury: Driving in a manner that is negligent and injuring someone.
• Criminal Negligence Causing Death: Driving in a negligent way and causing a death, such as striking a third party or pedestrian during a road rage incident.
• Murder/Manslaughter: Dangerous driving where the driver causes death may be charged as murder or manslaughter, depending on the circumstances.

Many provincial statutes also have traffic laws that prohibit driving associated with road rage. In British Columbia, the Motor Vehicle Act (MVA) contains several sections that are applicable to road rage and aggressive driving behaviours. While road rage itself may not be explicitly mentioned, the following sections of the MVA address various actions that can be associated with road rage incidents:

• Section 68 – Hit and Run: Prohibits failing to stop or provide information after an accident.
• Section 125 – Traffic Control Signal: Prohibits failing to follow a traffic control signal.
• Section 128 – Yellow Light: Prohibits failing to stop for a yellow light.
• Section 129 – Red Light: Prohibits failing to stop for a red light.
• Section 144 – Careless Driving: Prohibits driving carelessly and without reasonable consideration for other persons using the road.
• Section 145 – Slow Driving: Prohibits driving a motor vehicle at so slow a speed as to impede or block the normal and reasonable movement of traffic.
• Section 146 – Speeding: Prohibits speeding above a certain limit.
• Section 148 – Excessive Speeding: Prohibits driving a vehicle at speeds greater than 40km/h over the applicable speed limit.
• Section 151 – Illegal Lane Change: Requires drivers to only change lanes when it is safe and to signal their intent to do so.
• Section 162 – Following Too Closely: Prohibits following a vehicle too closely in light of the flow of traffic.
• Section 187 – Stopping on a Highway: Specifies prohibitions on stopping, parking, or leaving a vehicle on a highway.
• Section 214.2 – Use of Electronic Device: Prohibits using an electronic device while driving, including taking pictures or videos.

What are the Legal Consequences of Road Rage?

When road rage results in unlawful acts, there can be a number of legal consequences.

First, there can be criminal charges that can lead to a criminal record, fines, driving prohibitions and jail.

Second, the Superintendent of Motor Vehicles may also separately issue administrative driving prohibitions.

Third, there can be civil and insurance consequences. An offender may be sued civilly for property damage or bodily injury.

Fourth, there can be various charges under a provincial or territorial statute. These charges will depend on the nature of the driving behaviour and will carry fines, demerit points and may result in a number of tickets.

Conclusion

If you are being investigated or have been charged with an offence related to road rage, call the experienced lawyers at Filkow Law for legal advice.

How Do Courts Determine Guilt in Cases with Competing Versions of Events?

In criminal cases, it is the Crown’s obligation in every trial to prove the accused is guilty beyond a reasonable doubt considering the credibility. This can be a challenging task for juries, particularly in cases where two competing versions of events, one from the complainant and the other from the accused, exist, and there is little or no supporting evidence for either side.

How should juries determine the accused’s guilt or innocence when two witnesses provide different versions of events?

The Supreme Court of Canada’s Guidance: R v. W.D.

In R v. W.D., [1991] 1 SCR 742, the Supreme Court of Canada guided trial courts about how to assess competing accounts. In that case, the accused, a 42-year-old man, was charged with sexually assaulting his 16-year-old niece. Aside from the niece’s testimony of the event, there was little circumstantial evidence supporting the allegation. The accused denied committing the offence. The trial judge instructed the jury that they must decide whether to believe either the accused or the complainant. As a result, the jury found the accused guilty.

On appeal, the accused took issue with how the trial judge instructed the jury about how to resolve the competing evidence. The Supreme Court of Canada held the instruction was improper and set out a test to apply in these types of situations.

The Test for Assessing Competing Accounts

In the first stage, if the jury believes the evidence of the accused, then the accused must be acquitted (found not guilty).

At the second stage, if the jury does not believe the testimony of the accused, but is left in reasonable doubt by it, then they must acquit the accused. In other words, if the accused’s evidence makes the jury question (to a reasonable degree) whether or not the accused is guilty, then the accused must be acquitted.

In the third stage, even if the jury is not left in doubt by the evidence of the accused, then that does not necessarily mean the accused is guilty. If the accused is not believed and his evidence does not raise a doubt, then the jury must ask themselves whether they accept the evidence of the complainant beyond a reasonable doubt. If the answer is yes, then the accused must be found guilty. If the answer is no, then they have a reasonable doubt based on the complainant’s evidence and the accused must be acquitted. In other words, it is not enough to simply reject the evidence of the accused to convict. It is also necessary that the jury accept the evidence presented by the Crown beyond a reasonable doubt before the accused can be found guilty.

The BC Court of Appeal, in the case of R. v. C.W.H., [1991] BCJ No 2753 (BC CA), provided an additional fourth stage: if after careful consideration the jury cannot decide whom to believe, then they must acquit.

Conclusion: Focus on the Burden of Proof, Not Preference for One Side Over Another

The W.D. and C.W.H. analysis is designed to prevent juries from listening to two competing versions and asking themselves “Which version do I like better?” and picking their preferred version. It is not a question of which version they like better. The instructions outlined by the courts focus the jury on the right question, which in a criminal trial is always whether the Crown has proven the accused is guilty beyond a reasonable doubt.

If you are being investigated or charged with a criminal offence, contact the experienced lawyers at Filkow Law for legal assistance.

What are Crimes of Revenge?

Crimes of revenge are acts of violence or other illegal activities committed by an individual in response to a real or perceived wrong that has been done to them. These acts are often carried out with the intention of seeking retribution or revenge for the real or perceived injustice.

Revenge can be motivated by a variety of different acts, including the following:

● cheating, infidelity or adultery;
● being insulted, especially on the basis of race, gender, religion or sexuality;
● failing to repay a debt;
● economic competition;
● loss of business or clients;
● being treated unfairly at work;
● sabotage by a coworker or business partner;
● disclosure of a secret;
● jealousy or envy; and,
● family disputes over inheritance, property or children.

The type of revenge one takes can vary wildly. Here are some common examples of crimes of revenge:

● physical assault;
● harassment;
● stalking;
● mischief to property or vandalism;
● theft;
● breaking and entering;
● defamation;
● distributing intimate images, also known as “revenge porn”;
● sending false communications;
● making false police reports; and,
● arson.

In some cases, these crimes can escalate into more serious offences, such as murder or sexual assault.

Why do Crimes of Revenge Occur?

Crimes of revenge are often motivated by strong emotions, such as anger, jealousy, or vindictiveness. The offender may feel that the only way to achieve justice is through violent or illegal means.

In some cases, offenders may feel that the legal system has failed to provide them with the justice they seek, and therefore, they believe they must take the law into their own hands.

In other cases, societal and cultural factors may also play a role. For example, in some cultures, honour-based violence is used as a way to restore the family’s honour when it may have been compromised.

Regardless of the motive, there is no legal justification for a crime of revenge.

The Legal Defence of Provocation

There is a defence in the law of provocation, however, it only applies to a charge of first or second-degree murder. Provocation is a defence where the deceased person commits a wrongful act or insult that deprived an ordinary person of the power of self-control. Even then, it is only a partial defence that can reduce a verdict from murder to manslaughter.

Provocation is not a defence for any crime of revenge other than murder. This means that it is not a defence to say that an insult or wrongful act caused the offender to lose self-control and to commit offences of assault, theft or the distribution of intimate images, to cite a few examples. The context of an offence may reduce an offender’s moral culpability and therefore the sentence they receive; however, there is no special defence available for someone who has been accused of a crime of revenge.

Related: What is Aggravated Assault?

Conclusion

Crimes of revenge are taken very seriously by the Canadian legal system, and can result in severe penalties. Depending on the nature and severity of the offence, the offender may face imprisonment, fines, or other penalties.

If you are charged with or investigated for a crime of revenge, it is highly recommended that you hire a lawyer to defend your case. The experienced lawyers at Filkow Law regularly deal with all kinds of crimes of revenge. Contact us today for legal help.

What is Arson?

Arson is a serious offence in Canada, and it is one of the most severe forms of property damage. The Criminal Code of Canada defines arson as intentionally setting fire to property without the owner’s consent. The offence is taken very seriously by law enforcement agencies, and anyone found guilty of this crime can face significant legal consequences. Canadian law has several sections that deal with the offence of arson, each with its own set of circumstances and penalties.

Types of Arson in The Criminal Code of Canada

There are five different types of arson in the Criminal Code of Canada. They are located in sections 433 to 436:

1. Arson with disregard for human life.
2. Arson of property not wholly owned by the accused.
3. Arson of property partially or wholly owned by the accused.
4. Arson with the intent to defraud.
5. Arson by negligence.

Punishment for Arson in Canada

Section 433 of the Criminal Code of Canada outlines the offence of arson with disregard for human life. The section states that anyone who intentionally or recklessly sets fire to property where either:

(a) the person knows that or is reckless with respect to whether the property is inhabited or occupied; or

(b) the fire or explosion causes bodily harm to another person.

is guilty of an indictable offence and can be sentenced to life imprisonment.

Section 434 of the Criminal Code of Canada deals with the offence of arson of property that is not wholly owned by the accused. This section applies where a person sets fire to property that the person themselves does not wholly own. The penalty for this offence is a maximum of 14 years imprisonment.

Section 434.1 of the Criminal Code of Canada creates an offence of arson of property that is owned wholly or in part by the accused. This section applies where a person sets fire to property that they themselves own and seriously threatens the health, safety or property of another person. It does not matter whether the accused knew the fire threatened the health safety or property of others. The maximum penalty for this offence is 14 years imprisonment.

Section 435 of the Criminal Code of Canada deals with arson committed with intent to defraud. This section applies when a person sets fire to their property or the property of another person with the intent to obtain insurance money or some other financial benefit. The penalty for this offence is a maximum of 10 years in prison.

Section 436 of the Criminal Code of Canada deals with arson committed by negligence in one’s own property. This section applies when a person negligently causes a fire on their property that damages another person or property. Negligence can be inferred by failing to comply with any law about the prevention or control of fires. The penalty for this offence is a maximum of five years imprisonment.

Use of Incendiary Material

Section 436.1 of the Criminal Code of Canada deals with possessing incendiary material for the purpose of committing arson. This section applies when a person simply possesses incendiary material, such as:

• gasoline;
• propane;
• diesel;
• kerosene;
• butane;
• methane;
• matches;
• lighters;
• gunpowder;
• thermite;
• magnesium; and

The penalties for arson vary depending on the circumstances. In general, the penalties for arson committed with intent to defraud or possessing incendiary material for the purpose of committing arson are less severe than the penalties for arson committed with disregard for human life or arson of another person’s property.

The Criminal Code of Canada has several sections that deal with the offence of arson, each with its own set of circumstances and penalties. Arson is a serious offence in Canada, and anyone found guilty of this crime can face significant legal consequences. If you are being charged with or investigated for a crime, contact the experienced lawyers at our office.

Related reading: check out our blog on the possible outcomes of a criminal charge in Canada.

What is a Police Warrant?

In Canada, police warrants are an important tool used by law enforcement officials to investigate and apprehend suspected criminals. A warrant is a legal document issued by a judge or justice of the peace that authorizes police officers to take certain actions, such as entering a property to search for evidence or to arrest an individual.

To obtain a warrant, police officers must demonstrate to a judge or justice of the peace that there are reasonable grounds to believe that an offense has been committed and that evidence or a person involved in the offense is likely to be found at a particular location. The judge or justice of the peace must be satisfied that the evidence is credible and reliable before issuing a warrant.

Types of Warrants in Canada

There are two types of police warrants in Canada: search warrants and arrest warrants. A search warrant allows police officers to enter a property and search for evidence related to a criminal offense. An arrest warrant authorizes police officers to arrest an individual suspected of committing a crime.

When executing a warrant, police officers must follow strict guidelines to ensure that the warrant is carried out lawfully. For example, they must identify themselves as police officers, provide a copy of the warrant to the person in charge of the property being searched, and provide a detailed inventory of any items seized during the search.

Can the Police Search You Without a Warrant?

It is important to note that police officers are not always required to obtain a warrant before conducting a search or making an arrest. In some circumstances, such as when an individual is caught in the act of committing a crime, police officers may be able to make an arrest without a warrant. Similarly, in emergency situations where there is an imminent threat to public safety, police officers may be able to conduct a search without a warrant.

However, in general, police officers are required to obtain a warrant before conducting a search or making an arrest. This requirement is designed to protect the rights of individuals and ensure that law enforcement activities are carried out in a lawful and appropriate manner.

If an individual believes that their rights have been violated during a police search or arrest, they have the right to challenge the legality of the search or arrest in court. This may involve arguing that the police did not have reasonable grounds to believe that a crime had been committed, that the warrant was obtained unlawfully, or that the police officers did not follow proper procedures when executing the warrant.

Related: Entrapment Law in Canada

Key Takeaways

Overall, police warrants are an important tool used by law enforcement officials in Canada to investigate and apprehend suspected criminals. While there are situations where police officers may be able to conduct a search or arrest without a warrant, the requirement to obtain a warrant in most circumstances helps to protect the rights of individuals and ensure that law enforcement activities are carried out in a lawful and appropriate manner.

If you are being investigated for a crime or believe there is a warrant out for your arrest, call the experienced lawyers at Filkow Law. Click here to contact us.

For more information on warrants in Canada, click here.

Aggravated assault is the most serious assault charge someone can face in Canada. It is an assault where the complainant was wounded, maimed, disfigured, or their life was endangered.

What is the difference between an assault and an aggravated assault?

All criminal offences are made up of elements (i.e., ingredients). The elements of an aggravated assault are the same as for a regular assault, but the result of the assault is different. With a regular assault, the complainant suffered no bodily harm and were not wounded, maimed, disfigured, or had their life endangered.

What is the legal definition of an assault?

The elements of an assault are that the accused intentionally or recklessly applied force to the complainant without the complainant’s consent. Assaults where the complainant suffered no bodily harm and were not wounded, maimed, disfigured, or had their life endangered are sometimes also referred to as “simple assaults”. For more information on simple assaults, click here.

What is an assault causing bodily harm?

Assault causing bodily harm is an upgraded version of assault. It has the same elements of assault, except the complainant suffered “bodily harm”. Bodily harm means the complainant suffered harm that was more than transient or trifling.

When does an assault become an assault causing bodily harm?

There is no clear dividing line between harm that is transient or trifling and harm that goes beyond that. In practice, BC prosecutors will charge an accused with assault if the complainant alleges they suffered no more than a few bruises or scratches.

If an assault resulted in bleeding, significant bruising, or lumps, BC prosecutors are more likely to charge the accused with assault causing bodily harm. If the complainant had concussion symptoms, that can also be charged as an assault causing bodily harm. The meaning of “bodily harm” includes brain injuries or psychological damage, as long as they are more than transient or trifling.

What is the difference between assault, assault causing bodily harm, and aggravated assault?

Aggravated assault has the same elements as assault, except the complainant was also wounded, maimed, disfigured, or their life was endangered.

The difference between assault, assault causing bodily harm, and aggravated assault is in the result (i.e., outcome) of the assault. The more the complainant was hurt by the assault, the more likely the accused will be charged with an upgraded version of assault (either assault causing bodily harm or aggravated assault).

Are there other upgraded versions of assault, apart from assault causing bodily harm and aggravated assault?

There are two other upgraded versions of simple assault, but the differences between them and a simple assault do not depend on the result of the assault. Instead, they depend on the circumstances of the assault. These are assault with a weapon and assault by choking.

An assault with a weapon is any assault where the perpetrator carried, used, or threatened to use a weapon. A weapon is any “thing”, as long as it was used to assault someone with. A weapon could be a shoe, a plastic cup, a piece of clothing… anything. If it’s a thing, it can be a weapon and meet the legal definition of “assault with a weapon” provided the thing was used as a weapon.

An assault by choking is any assault where the accused is alleged to have choked the complainant. It does not depend on the result of the assault, but on the act itself.

When do people get charged with aggravated assault?

Although there are four outcomes that meet the definition of aggravated assault (wounding, maiming, disfiguring, or endangering life), the outcome that will most commonly meet the definition of an aggravated assault is wounding. That’s because someone who was maimed, disfigured, or had their life endangered will typically also have been wounded.

In practice, BC prosecutors will charge aggravated assaults where the harm suffered by the complainant is alleged to have been broken bones, broken cartilage, cuts requiring stitches, or worse.

How does the law define “wounding”, “maiming”, and “disfiguring”?

The legal definition of wounding is “a break in the continuity of the whole skin that also constitutes serious bodily harm”. Serious bodily harm means “any hurt or injury that interferes in a substantial way with the integrity, health or well-being of the complainant”.

The legal definition of maiming is “to inflict an injury that deprives a person of the use of a limb or renders the victim less able to defend themselves.” This means that breaking someone’s bones or otherwise making them unable to use their body properly means the harm they suffered was enough to count as an aggravated assault.

The legal definition of disfiguring is “impairing or injuring the beauty, symmetry, or appearance of a person”. Although the word “disfigure” implies an injury to the face, a facial injury is not necessary for its legal definition. The injury must simply be persistent and harmful to a person’s appearance. That means the legal definition of aggravated assault can be met without breaking skin (no wound) or injuring bodily functions (no maiming) if it still harmed the victim’s long-term appearance (i.e., disfigured them).

How does the law define “endangering life” for the purpose of an aggravated assault?

There is no elaborate legal definition of “endangering life” for the purpose of an aggravated assault. This is a fact-specific question that will depend on the circumstances of each case.

One example where someone could be found guilty of aggravated assault despite neither wounding, maiming, or disfiguring the complainant is if they discharged a firearm near the complainant and the bullet missed. There would be no actual harm to the complainant, but the accused would have endangered their life.

Of course, if someone shoots somebody with a firearm, they could also be charged with the offence of discharging a firearm with intent to endanger life. However, for someone to be guilty of that offence the prosecutor must prove they intended to endanger life. An accused could be guilty of aggravated assault for discharging a firearm near a complainant, even if they never intended to endanger the complainant’s life. If the accused was reckless, that is enough. This means it is easier for a prosecutor to prove an aggravated assault than to prove the offence of discharging a firearm with intent to endanger life.

How does intention play a role in aggravated assault?

In general, the law does not criminalize acts that a person does not intend. For someone to be guilty of an assault, they need to have intentionally or recklessly applied force to another person. “Reckless” means they knew they might apply force to another person but took that risk anyway.

Upgraded versions of assault also require some intention with regard to the result of the assault. For someone to be guilty of aggravated assault, the complainant must not only have been wounded, maimed, disfigured, or had their life endangered, but a reasonable person in the accused’s shoes would have also foreseen the risk of inflicting bodily harm to the complainant.

This mental exercise can be confusing, but it is a very common legal test. We call it an “objective test”, which means that instead of asking whether the accused foresaw the risk of harm from their actions, we ask whether a reasonable person in their shoes would have foreseen the risk of harm from their actions. If the legal test were about what the accused actually foresaw (as opposed to a reasonable person in their shoes), then we would call it a “subjective test”.

So, there are two aspects to intention with aggravated assault:

1. Intent regarding the assaultive act; and
2. Intend regarding the result of the act.

For the assaultive act, the accused must have intentionally or recklessly applied force to the complainant. For the result of the act, a reasonable person in the accused’s shoes must have foreseen the risk of bodily harm from applying force to the complainant.

What should I do if I’m being charged with aggravated assault?

You should retain a lawyer right away. All violent offences are serious, but aggravated assault is the most serious assault charge in the Criminal Code that someone can face. The charge carries a maximum punishment of 14 years in jail. If you are guilty of aggravated assault, it is not possible to avoid a criminal record. Lengthy jail sentences are also common.

The lawyers at Filkow Law are experts at criminal law and have vast experience defending assault charges. We can help. Do not hesitate to call us right away.

Filkow Law has the pleasure of being voted a top-three Richmond Criminal Defence Lawyer and top-three DUI Laywer. Filkow Law has been serving a diverse community in the Richmond area for over 20 years. Lawyers and staff at the firm speak Mandarin, Cantonese, Punjabi, Russian, French, Serbian, Polish and German. The lawyers at Filkow Law specialize in criminal charges, driving cases, and ICBC cases.

Over the past decade, Filkow Law Richmond has been recognized for its expertise in multiple practice areas. Filkow Law has been voted the best law firm in Richmond for the past 8 years (2014, 2015, 2016, 2017, 2018, 2019, 2020, 2021 and 2022). Filkow Law has consistently been voted as the top criminal and driving law firm in Richmond. Filkow Law was also rated one of the Top Three Richmond DUI Lawyers in 2021, 2022, and 2023. Filkow Law was also rated one of the Top Three Richmond Criminal Defence Lawyers in 2023.

Need A Criminal Defence Lawyer In Richmond? Call Filkow Law

Filkow Law is a highly regarded law firm with over 25 years of experience. Clients benefit from Filkow Law’s deep and broad knowledge and expertise of criminal law, driving law and the criminal justice and court system. Filkow Law is known for its skilled advocacy, its highly accessible culture, its signature strategic approach to every case, and the exceptional results achieved.

The lawyers at the firm have excellent reputations with the police, prosecutors and the courts across British Columbia. In addition to their courtroom skills, the lawyers at Filkow Law advocate for and achieve decisive victories away from the public eye, often before the criminal or driving case ever sees a day in court.

Filkow Law looks forward to continuing to deliver excellent outcomes for its clients. Please do not hesitate to contact any of the lawyers at the firm for a consultation.