Toronto Criminal Lawyer

Assault is among the most frequently charged criminal offences in Toronto's courts. The term covers a broad spectrum of conduct, from a push during an argument to serious violence resulting in lasting injury. The Criminal Code classifies assault into several distinct offences, each carrying different maximum penalties, and the specific charge has a significant impact on how the case will proceed through the court system.

This guide provides an overview of the different levels of assault under Canadian law, the potential penalties, available defences, and what to expect if you or someone you know is facing assault charges in Toronto.

Types of Assault Under the Criminal Code

The assault provisions are found in sections 265 through 268 of the Criminal Code. The law recognizes several distinct offences of increasing severity:

Simple assault (s.265). The most basic form of assault occurs when a person intentionally applies force, directly or indirectly, to another person without that person's consent. It also includes attempting or threatening to apply force, or approaching or blocking another person while openly wearing or carrying a weapon. Simple assault is a hybrid offence with a maximum penalty of five years imprisonment if prosecuted by indictment.

Assault with a weapon or causing bodily harm (s.267). This offence applies when the assault involves a weapon, threatens to use a weapon, or results in bodily harm to the complainant. "Bodily harm" is defined under s.2 of the Criminal Code as any hurt or injury that interferes with health or comfort in more than a transient or trifling way. This is a hybrid offence with a maximum of ten years on indictment.

Aggravated assault (s.268). The most serious form of assault charges applies where the accused wounds, maims, disfigures, or endangers the life of the complainant. This is a straight indictable offence carrying a maximum of 14 years imprisonment. Aggravated assault cases are among the most seriously prosecuted matters in Ontario's criminal courts.

How the Crown Decides Which Charge to Lay

The specific assault charge depends primarily on the nature and extent of any injuries. Police typically lay the initial charge based on what they observe at the scene and what the complainant reports. However, the Crown Attorney may later upgrade or reduce the charge based on a fuller review of the evidence, including medical records.

For hybrid offences (simple assault and assault causing bodily harm), the Crown Attorney must elect whether to proceed by summary conviction or by indictment. This decision, known as Crown election, is significant because it determines:

• The maximum penalty the court can impose
• Whether the accused has the right to a preliminary inquiry and jury trial
• The limitation period for commencing the prosecution
• The court where the case will be heard

The Crown considers factors including the severity of the injuries, the accused's criminal record, the relationship between the parties, the use of weapons, and the circumstances of the offence when making this election. Understanding the post-arrest process can help clarify how these decisions unfold.

Penalties for Assault Convictions

Sentencing for assault offences varies widely depending on the type of assault, the circumstances, and the offender's background:

Simple assault:

• Summary conviction: maximum two years less a day imprisonment
• Indictment: maximum five years imprisonment
• First-time offenders with no criminal record may be eligible for a discharge, probation, or a suspended sentence

Assault causing bodily harm:

• Summary conviction: maximum two years less a day imprisonment
• Indictment: maximum ten years imprisonment
• Sentences tend to be more significant, particularly where injuries are serious

Aggravated assault:

• Maximum 14 years imprisonment (indictable only)
• Penitentiary sentences are common, particularly where the injuries are severe or permanent
• Discharges are not available for this offence

The sentencing process in Ontario involves a careful balancing of numerous factors, and outcomes can vary significantly even within the same category of offence.

Self-Defence Under Section 34

Self-defence is one of the most commonly raised defences to assault charges. Section 34 of the Criminal Code provides that a person is not guilty of an offence if:

• They believe on reasonable grounds that force is being used against them or another person, or that a threat of force is being made against them or another person
• The act is committed for the purpose of defending or protecting themselves or another person from that use or threat of force
• The act committed is reasonable in the circumstances

In assessing whether the response was "reasonable in the circumstances," the Criminal Code directs the court to consider a list of factors including: the nature of the force or threat, the extent to which the use of force was imminent, whether there were other means available to respond, the size, age, and physical capabilities of the parties, the nature and proportionality of the response, and any history of interaction between the parties.

Self-defence is a factual defence that depends heavily on the specific circumstances. The burden is on the accused to raise an "air of reality" to the defence, after which the Crown must disprove it beyond a reasonable doubt.

Consent and Assault

Under s.265(2), consent is a defence to some assault charges. If the complainant voluntarily agreed to the application of force, no assault has occurred. However, the law places significant limits on the consent defence:

• Consent obtained by force, threats, fraud, or authority is not valid consent (s.265(3))
• Consent to bodily harm is generally not a valid defence. Canadian law holds that a person cannot consent to the intentional infliction of serious bodily harm, subject to certain recognized exceptions such as contact sports played within the rules
• Mutual fights present complex consent issues. While participants in a consensual fight may have implicitly consented to some level of force, consent does not extend to force that causes serious bodily harm

Consent issues frequently arise in cases involving bar fights, sporting incidents, and situations where the parties had an ongoing relationship. Knowing your rights when speaking to police is important in these situations, as statements made to officers can significantly affect how consent arguments play out at trial.

The Court Process for Assault Charges

Assault cases in Toronto typically proceed through the Ontario Court of Justice, located at Old City Hall (60 Queen Street West) or one of the satellite courthouses. The process generally follows these stages:

• First appearance: The accused appears in court, typically within a few weeks of the charge, and the case is adjourned to allow defence counsel to obtain and review Crown disclosure
• Disclosure review: The Crown provides all relevant evidence to the defence. This is a constitutional right, and the disclosure package often includes police notes, witness statements, medical records, photographs, and any video evidence
• Resolution discussions: Defence counsel and the Crown discuss the case, including any potential for resolution such as withdrawal, peace bond, diversion, or a guilty plea to a lesser charge
• Pre-trial or judicial pre-trial: A meeting with a judge to narrow issues and explore resolution
• Trial: If no resolution is reached, the case proceeds to trial where the Crown must prove the charge beyond a reasonable doubt

In many simple assault cases, the matter may be resolved without a trial. Peace bonds are a common resolution, particularly where the parties had a prior relationship and the conduct was at the less serious end of the spectrum.

Other Defences to Assault Charges

Beyond self-defence and consent, other defences that may arise in assault cases include:

• Defence of property (s.35): Using reasonable force to protect property from being taken, damaged, or trespassed upon
• Accident: The application of force was not intentional
• Identity: The accused was not the person who committed the assault
• Credibility: In cases that turn on conflicting accounts between the complainant and the accused, the court must assess credibility and reliability
• Charter breaches: Violations of the accused's constitutional rights during the investigation may lead to exclusion of evidence

Each case requires a careful analysis of the evidence, the applicable law, and the available defences. What may appear straightforward on the surface often involves nuances that significantly affect the outcome.

Speak with a Criminal Lawyer. Assault charges carry serious consequences including the possibility of a criminal record, imprisonment, and a weapons prohibition order. If you are facing assault charges in Toronto, it is important to obtain legal advice as early as possible. Contact a criminal lawyer to discuss the specifics of your case in a confidential consultation.