May 20, 2022
Allegations of assault offences are very common. From pushing and shoving to punching and kicking, assault is the most common type of violent crime. This article outlines the different types of assaults recognized in Canadian law and provides some explanation of each.
What is an Assault Offence?
Assault is defined as the intentional application of force to another person, directly or indirectly, without that other person’s consent. Simply put, an assault occurs as soon as person A touches person B without person B’s consent. Any unwanted touching is an assault. There are a few features of assault that are important to understand.
First, the application of force must be intentional. If person A accidentally touches person B, then they have not committed an assault. Tripping and falling into another person, bumping into them while distracted, and being pushed into someone by a third party are not assaults because the application of force was unintentional.
Second, as set out in the definition, the application of force can be indirect. Suppose person A intentionally pushes person B into person C. In this scenario, person A is responsible for assaulting both person B and person C. Person A assaulted person B because he directly applied force to person B, and person A also assaulted person C because he indirectly applied force to person C by pushing person B into person C.
Is tapping someone on the shoulder assault?
Third, any physical contact without consent that is more than trifling is an assault. Only the most minor and trifling physical contact is not an assault. For example, if person A taps person B’s shoulder to get their attention, person A has not committed an assault because the touching is so minor.
Assault is also defined as “an attempt or threat, by any act or a gesture, to apply force to another person, that causes the other person to reasonably believe that the person will apply force to them”. This means an assault can be committed even when there is no physical contact. An act or gesture can be an assault. An example of this occurs when person A raises their fist to person B in a way that makes person B reasonably believe he is about to be punched. In this example, person A has assaulted person B even though there was no physical contact.
A conviction for assault can result in a criminal record, a jail sentence and other consequences.
Assault With a Weapon
Assault with a weapon is defined as an assault where a person “carries, uses or threatens to use a weapon or an imitation thereof”.
Assault with a weapon shares the essential elements of an assault with the addition of a weapon. A “weapon” is defined as “any thing used, designed to be used or intended for use: (a) in causing death or injury to any person, or (b) for the purpose of threatening or intimidating any person”.
The law recognizes some items as weapons. For example, firearms, switch blades, stilettos, butterfly knives and brass knuckles. These are all weapons because they are designed to cause death or injury.
But depending on the context, anything – from a cell phone to a water bottle to a stapler – can become a weapon. Whether a thing is a weapon is defined by its context. Suppose during an argument person A grabs a stapler and hits person B with it. In this scenario, person A assaulted person B with a weapon. The stapler was simply a stapler until it was used in an assault. Once used to hit person B, the stapler became a weapon.
Assault Causing Bodily Harm
An assault causing bodily harm is defined as an assault that results in bodily harm. “Bodily harm” is defined 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 threshold for bodily harm is low. It includes injuries such as bruising and cuts.
Assault causing bodily harm is defined by its outcome and not its intention. For example, suppose person A punches person B and person C at separate times but in an identical manner. Person B is cut by the punch and person C is not. Even though the act of punching was the same in each case, person A committed assault causing bodily harm against person B because person B was cut. It does not matter whether person A intended the cut to happen.
Assault causing bodily harm is more serious than an assault without bodily harm and can result in a more significant sentence on conviction.
Aggravated assault is defined as an assault that “wounds, maims, disfigures or endangers the life of the complainant”. This means that there are effectively four separate kinds of aggravated assaults: those that wound; those that maim; those that disfigure; and, those that endanger life.
A “wound” is defined as “a break in the continuity of the whole skin that constitutes serious bodily harm”. A stabbing meets the definition of a wound.
“Maim” means “the loss of the use of some body part or some bodily function”. Breaking someone’s arm or leg is maiming. The loss of use of this body part or function does not need to be permanent to constitute maiming.
“Disfigurement” is an injury that has a long-lasting and significant effect on the appearance or beauty of a person. Examples include scarring as a result of cuts, acid or burns. A temporary effect on a person’s appearance, such as a bruise or a black eye, is not a disfigurement.
“Endangering” means to endanger a person’s life as a result of a completed assault. The following two examples help illustrate the definition:
- Person A pushes person B on a 4th-floor balcony causing person B to go over the railing. Person B manages to hang on. Person B is not harmed but his life was put in danger as a result of the assault.
- Person A pushes person B into a busy intersection with many fast-moving vehicles. Person B is fortunate that the drivers see him and avoid a collision.
In both cases, the assault itself did not result in any harm or injury, but the person’s life was put in danger by the assault.
Aggravated assault is more serious than assault causing bodily harm and will usually attract a jail sentence upon conviction.
Domestic or spousal assault refers to any form of assault against an intimate partner or a family member. A domestic assault is an aggravating circumstance on sentence if convicted. An “intimate partner” is defined as a “current or former spouse, common-law partner and dating partner”. Any assault against a girlfriend or boyfriend is a domestic assault.
Domestic assaults require special consideration for a few reasons.
First, an allegation of a domestic assault will routinely result in an accused person being put on conditions not to go to near their partner and not to contact their partner. There are limited exceptions. This can be challenging when a couple lives together or coparents children.
Second, domestic assaults may overlap with family court proceedings. A decision in one case may affect the other. This requires coordination between a family lawyer and a criminal lawyer.
Third, if the couple has children, the Ministry of Children and Family Development may send a social worker to investigate and make decisions about where a child should live or whether a protection order is required. The Ministry has the authority to impose their own conditions separate from the police and the court based on the best interests of the children.
Uttering threats is defined as “knowingly uttering, conveying, or causing any person to receive a threat (a) to cause death or bodily harm to any person; (b) to burn, destroy or damage real or personal property; or (c) to kill, poison or injure an animal or bird that is the property of any person”. In other words, three specific types of threats are prohibited: threats to kill or harm someone; threats to damage property; and threats to injure a pet.
Allegations Of Assault Offences
Allegations of assault and uttering threats can be complex and serious. The lawyers at Filkow Law have extensive experience in defending people from these types of charges. If you find yourself being investigated or charged with this type of offence, call us immediately.
Apr 08, 2020
Cases of domestic violence can happen in any family at any time. Domestic violence is the physical or sexual assault, or the threat thereof, in any family relationship: spousal, intimate partner, parent or child. The full impact of COVID-19 places additional and tremendous stresses on family relationships. These stressors include health and safety concerns, isolation and containment, financial and psychological stresses and increased alcohol consumption.
Reporting Cases On Domestic Violence In BC
Once an allegation of domestic violence is reported to the police or RCMP or other authorities (teacher, social worker, doctor etc.), it is not up to the victim or the accused or any other family member to stop the legal process.
Domestic violence cases are appropriately treated very seriously in the criminal justice system. The police have designated units and resources assigned to domestic cases. The Prosecution has teams specializing in domestic violence cases. There are different charges or criminal code provisions that may apply – Assault, Sexual Assault, Threatening, Harassment, Weapons, Breaches, and Homicide.
Reporting Cases On Domestic Violence In BC: Next Steps
For an individual accused of domestic assault or of family violence, a lawyer should be retained (at the earliest opportunity) to protect an individual’s legal interests and rights in the criminal justice system. An accused person must be informed of the steps in the prosecution, the burden of proof and the presumption of innocence. An individual must understand all his or her rights and options in terms of bail and defences and the various methods domestic violence cases can be resolved
A domestic violence victim may also consider retaining a lawyer to assist with the criminal justice system and the legal issues involved. For victims of domestic violence, there are a number of government and volunteer resources and support. However, accessing these resources is now more difficult given the restrictions on social distancing.
Call Filkow Law Regarding Cases On Domestic Violence In BC
Our firm acts as counsel on a daily basis to individuals who are facing domestic assault charges and who are complainants and family members of domestic assault. We deal with the police and RCMP, Crown prosecutors, victims’ services and other government ministries as necessary. The fact is we are seeing more domestic violence cases in the current heightened circumstances of family pressures.
Every individual and family dynamic is different as is each case and set of circumstances. We are in the middle of a serious global health pandemic with one of its consequences being the stresses on family relationships. In cases where there are criminal charges or legal issues relating to domestic violence, an experienced lawyer should be retained early on to advise in confidence and to assist with the successful legal resolution of the domestic violence case.
Contact Filkow Law today if you need to speak to a lawyer about a domestic violence case.