In its barest form, an assault can be construed as any unwanted touching; in other words, touching without consent. Assault, therefore, is the application of force applied directly (or indirectly), to a person where there is an intention to apply force, and there was no consent.
The definition of assault also includes acts that precede the application of force; such as an attempt or threat by an act or gesture. For instance, if a husband raises his hand and turns to his wife and says “I’m going to hit you”, the husband has committed an assault IF the wife believes on reasonable grounds that her husband has the ability to follow through with his threat and/or gesture of raising his hand.
DOMESTIC VIOLENCE / DOMESTIC ASSAULT / SPOUSAL ASSAULT
Often referred to as a “spousal assault”, these “types” of assault generally include two parties who are involved in a relationship (such as boyfriend / girlfriend or husband / wife). As there is no Criminal Code provision dealing specifically with domestic assault, a person is charged with the offence of assault, assault causing bodily harm (or whatever the level of assault that allegedly occurred). These matters often involve a “he said/she said” disagreement over the facts.
In the majority of these cases (depending on the circumstances of the offence, history of the relationship, background of the Client, and so forth), Mr. Israels is able to negotiate with the Prosecutor in order to ensure that the Client avoids a criminal record. This can be accomplished in a number of ways, including: having the assault charge dropped (or “stayed”), negotiating Alternative Measures (avoiding the Court process altogether), or through the imposition of a section 810 peace bond. In all three of these options, again, the primary goal is to ensure that the Client avoids a criminal record.
Equally as important when dealing with an assault charge and often the first goal of Mr. Israels when working for a Client who is charged with domestic assault (depending on the wishes of the Client of course), is to make efforts to change the bail conditions in order to allow the Client to return to the family home and to resume contact with one’s partner, as soon as possible. No one wants to be alone. No one wants to incur the financial burden of having to stay in a hotel for months on end. Rather, as a domestic violence lawyer, Mr. Israels begins negotiating with the Prosecutor at a very early opportunity in order to work towards having the Client’s bail changed as soon as possible. Again, this task is often the first step in the process of working towards a favourable resolution for the Client (as outlined above).
ASSAULT CAUSING BODILY HARM OR ASSAULT WITH A WEAPON OR AGGRAVATED ASSAULT
These “types” of assault charges are far more serious than “simple” assault. Rather, these forms of assault generally involve some type of visible and/or lasting injury. Assault causing bodily harm is defined as an assault where the injuries sustained are “more than merely transient or trifling” in nature. In other words, such as an injury that is more than a bruise – which usually involves breaking of the skin, broken bones, and/or a permanent scar. Assault with a weapon is the application of force where a weapon of some sort was used in committing the assault. A weapon can be anything that is used to apply force (it does not have to be a knife or a bat for instance). Rather, a weapon could include everyday household items, such as a chair, glass, or even a cell phone for instance. Aggravated assault is an assault where the injury sustained “wounds, maims, disfigures or endangers the life of the complainant”. Generally speaking, this form of assault involves significant injury; such as a stabbing or shooting.
DEFENCES TO ASSAULT
In essence, there are 3 defences to the charge of assault: First, there may be a complete denial of responsibility – “it wasn’t me”. Second, the defence of consent may arise – an “agreement” between the parties involved to engage in an assault with one another (note: consent can NOT be a defence when bodily harm results). Third, is the defence of self-defence. While self-defence is extremely technical and has a number of different definitions depending on the circumstances, it loosely translates to using force to repel force; that being force that is reasonably necessary under the circumstances to protect oneself and in some cases, one’s property or even defence of a third person.
The defence of self-defence is often successfully raised in not only simple assaults, but also for assault causing bodily harm, assault with a weapon charges, aggravated assault, and of course, manslaughter and murder.
PENALTY FOR ASSAULT
If one is convicted of assault (if prosecuted by Indictment), the maximum penalty is five years imprisonment. The penalty is more severe the more serious the assault that allegedly occurs. In other words, the penalty for assault causing bodily harm is more severe than the penalty for assault, and so forth.