Facing assault charges in Calgary can be overwhelming and life-changing. Assault charges carry significant legal consequences, and a conviction can affect your personal and professional life. Understanding the types of assault charges and how a skilled Calgary assault lawyer can help you navigate the legal process is crucial.
In this article, we break down the common types of assault charges under the Criminal Code of Canada and explore potential defences your lawyer may use.
Types of Assault Charges in Calgary
1. Simple Assault (Section 265 of the Criminal Code)
Definition:
Simple assault involves applying force, or threatening to apply force, to another person without their consent. Even the mere threat of violence can constitute an assault if the victim believes you can carry out the threat.
Legal Implications:
- Simple assault is typically prosecuted as a summary conviction offence, though it can be treated as an indictable offence depending on the severity.
- Penalties can include fines, probation, or up to 5 years of imprisonment if prosecuted as an indictable offence.
2. Assault with a Weapon (Section 267)
Definition:
This type of assault occurs when a weapon or object is used, or threatened to be used, to cause harm. The weapon doesn’t have to be a conventional one — any object used to intimidate or harm can qualify.
Legal Implications:
- This offence is considered more serious than simple assault.
- If convicted, you may face up to 10 years of imprisonment if prosecuted as an indictable offence.
3. Aggravated Assault (Section 268)
Definition:
Aggravated assault is the most serious form of non-lethal assault. It involves wounding, maiming, disfiguring, or endangering the life of the victim.
Legal Implications:
- This charge is always prosecuted as an indictable offence.
- The penalty can be severe, with a maximum sentence of 14 years in prison.
4. Domestic Assault
Definition:
Domestic assault refers to assault committed within a domestic or intimate relationship. This can include spouses, common-law partners, or dating partners. Courts in Calgary treat these cases with added scrutiny due to the breach of trust.
Legal Implications:
- Depending on the severity, charges can range from summary conviction to indictable offences.
- Convictions often result in strict conditions, such as no-contact orders, mandatory counselling, and potential jail time.
5. Sexual Assault (Section 271)
Definition:
Sexual assault involves any unwanted sexual contact or activity without consent. This category covers a wide range of behaviours, from unwanted touching to violent sexual attacks.
Legal Implications:
- The penalties are serious, ranging from 18 months (for summary offences) to 10 years of imprisonment (for indictable offences).
- If the victim is under 16 years of age, the penalties increase significantly.
How a Calgary Assault Lawyer Can Defend You
1. Challenging the Evidence
Your lawyer will scrutinize the prosecution’s evidence, identifying inconsistencies, lack of credibility, or procedural errors. This can weaken the Crown’s case or lead to charges being dismissed.
2. Self-Defence
If you acted to protect yourself or someone else, your lawyer can argue self-defence. Under Section 34 of the Criminal Code of Canada, self-defence is a valid legal defence if the force used was reasonable in the circumstances.
3. Consent
In cases of simple assault or sexual assault, your lawyer may argue that the alleged victim consented to the interaction. Proving consent can be complex, but it can lead to an acquittal if successfully demonstrated.
4. Mistaken Identity
If the evidence against you is based on eyewitness testimony, your lawyer may argue mistaken identity. This defence challenges the reliability of the witness’s account.
5. Violation of Charter Rights
If your rights under the Canadian Charter of Rights and Freedoms were violated — such as unlawful arrest, search, or denial of legal counsel — your lawyer can file a motion to exclude evidence or dismiss charges.
6. Plea Bargaining
An experienced Calgary assault lawyer can negotiate with the Crown for reduced charges or penalties, especially if the evidence against you is strong. This can result in lesser consequences, such as probation instead of jail time.
Legal Defences for Assault Charges
When facing assault charges in Calgary, the right legal defence can make a significant difference in the outcome of your case. An experienced Calgary assault lawyer can explore several potential defences under the Criminal Code of Canada and ensure your rights are protected. Here are the key legal defences often used in assault cases:
1. Self-Defence
What It Means:
Under Section 34 of the Criminal Code, self-defence allows you to use reasonable force to protect yourself or others from imminent harm. The key factor is that your response must be proportionate to the threat you faced.
How It’s Proven:
Your lawyer will present evidence that:
- You believed you or someone else was at risk of harm.
- The force you used was reasonable and necessary under the circumstances.
Example:
If someone in a Calgary bar physically threatened you, and you acted to protect yourself, self-defence may apply.
2. Defence of Property
What It Means:
Under Section 35 of the Criminal Code, you have the right to defend your property from being taken, damaged, or trespassed upon, provided you use reasonable force.
How It’s Proven:
Your lawyer will demonstrate that:
- You acted to prevent theft or damage to your property.
- The force you used was proportional to the threat posed.
Example:
If someone tried to vandalize your property in your Calgary neighbourhood and you used minimal force to stop them, this defence might apply.
3. Consent
What It Means:
In some cases, the alleged victim may have consented to physical contact. This is often relevant in sports, consensual fights, or situations where contact is expected.
How It’s Proven:
Your lawyer will need to establish:
- The alleged victim voluntarily agreed to the physical interaction.
- The contact did not exceed the level of consent given.
Example:
If an incident occurred during a hockey game in Calgary where physical contact is common, your lawyer may argue consent was implied.
4. Lack of Intent
What It Means:
For an assault conviction, the Crown must prove you intended to apply force or threaten force. If there was no intent, the charge might not stand.
How It’s Proven:
Your lawyer will show that:
- The physical contact was accidental.
- There was no deliberate intention to harm or threaten the alleged victim.
Example:
If you accidentally bumped into someone on a crowded Calgary sidewalk, this defence could apply.
5. Mistaken Identity
What It Means:
Eyewitness accounts are not always accurate. If you were misidentified as the perpetrator, this defence challenges the reliability of the identification.
How It’s Proven:
Your lawyer will investigate:
- Discrepancies in witness testimony.
- Alibis, video footage, or other evidence that support your innocence.
Example:
If a witness in a Calgary street altercation misidentified you, your lawyer can introduce evidence to establish you were elsewhere at the time.
6. Charter Violations
What It Means:
Under the Canadian Charter of Rights and Freedoms, you have rights against unlawful search, seizure, arrest, or detainment. If these rights are violated, your lawyer can seek to have evidence excluded or charges dismissed.
How It’s Proven:
Your lawyer will identify:
- Procedural errors by Calgary police or investigators.
- Violations of your rights, such as being denied access to legal counsel.
Example:
If Calgary police conducted a search without a warrant or arrested you without reading your rights, this defence may apply.
The Assault Case Process in Calgary
Navigating the assault case process in Calgary can be complex and daunting. An experienced Calgary assault lawyer can guide you through each step, protecting your rights and working towards the best possible outcome. Here’s an overview of what to expect during each stage of the process:
1. Arrest and Charges
What Happens During and After the Arrest:
If Calgary police suspect you of assault, they can arrest you on the spot or issue a summons for you to appear in court. During the arrest, you have the right to:
- Be informed of the reason for your arrest.
- Remain silent.
- Speak to a lawyer without delay.
After the arrest, you may be held in custody or released with conditions. The formal charges will be laid, and a court date will be set for your first appearance.
2. Bail Hearing
Securing Your Release with Reasonable Conditions:
If you are held in custody, a bail hearing (or judicial interim release hearing) will typically occur within 24 hours. Your Calgary assault lawyer will advocate for your release by presenting:
- Evidence that you are not a flight risk.
- Proposed conditions that address public safety concerns.
Common conditions may include staying away from the alleged victim, a curfew, or attending counselling. If successful, you will be released until your trial.
3. Disclosure of Evidence
Reviewing the Crown’s Evidence with Your Lawyer:
The Crown Prosecutor is obligated to provide your lawyer with full disclosure of the evidence against you. This includes:
- Police reports.
- Witness statements.
- Surveillance footage.
- Forensic evidence.
Your Calgary assault lawyer will thoroughly review the disclosure to identify weaknesses in the Crown’s case and develop your defence strategy.
4. Plea Negotiations
Exploring Options for Reduced Charges or Alternative Outcomes:
Before the trial, your lawyer may engage in plea negotiations with the Crown. This process involves:
- Discussing potential reductions in charges.
- Exploring alternative outcomes, such as diversion programs or conditional sentences.
- Weighing the risks of going to trial versus accepting a plea deal.
Plea bargaining can result in a more favourable outcome and avoid the uncertainties of a trial.
5. Trial Preparation
Building Your Case, Gathering Witnesses, and Developing Arguments:
If your case proceeds to trial, your Calgary assault lawyer will begin intensive preparation, which may include:
- Interviewing and subpoenaing witnesses.
- Gathering supporting evidence and expert testimony.
- Developing legal arguments and cross-examination strategies.
Effective trial preparation ensures that you are ready to challenge the Crown’s case and present a strong defence.
6. The Trial
What to Expect During the Trial Process in Calgary Courts:
The trial will take place in a Calgary Provincial Court or a Court of King’s Bench, depending on the severity of the charges. The process typically includes:
- Opening Statements: The Crown and defence outline their cases.
- Crown’s Case: The Crown presents evidence and witnesses.
- Defence’s Case: Your lawyer presents your defence and challenges the Crown’s evidence.
- Closing Arguments: Both sides summarize their cases and legal positions.
- Judge or Jury Decision: The judge (or jury in some cases) deliberates and delivers a verdict.
Your lawyer will ensure you understand each stage and advocate for your rights throughout the trial.
7. Verdict and Sentencing
Potential Outcomes and Advocating for Lenient Sentencing:
After the trial, the judge will deliver a verdict:
- Acquittal: If found not guilty, you are free of the charges.
- Conviction: If found guilty, the case proceeds to sentencing.
During sentencing, your Calgary assault lawyer can argue for lenient penalties based on factors such as:
- Your lack of prior criminal record.
- The circumstances of the offence.
- Your personal background and potential for rehabilitation.
Sentences can range from fines and probation to imprisonment, depending on the severity of the assault charge.
Consequences of an Assault Conviction
Being convicted of assault in Calgary can have serious, long-lasting repercussions that extend far beyond the courtroom. The severity of these consequences depends on the nature of the offence, the circumstances surrounding it, and whether it is classified as a summary conviction or an indictable offence under the Criminal Code of Canada. Here’s a detailed look at the potential consequences of an assault conviction:
1. Criminal Record and Its Implications
Permanent Record:
A conviction for assault results in a criminal record, which can have enduring consequences for your personal and professional life. Unlike some misdemeanours, assault charges are viewed seriously under Canadian law.
Impacts of a Criminal Record:
- Employment: Many employers in Calgary and across Canada conduct background checks. A criminal record can disqualify you from certain jobs, especially in industries that require trust or security clearance (e.g., healthcare, education, law enforcement).
- Professional Licensing: Some professions, such as nursing, teaching, and law, may deny or revoke licences based on a criminal conviction.
- Housing: A criminal record can hinder your ability to secure rental housing, as many landlords conduct background checks.
- Volunteer Work: Organizations working with vulnerable groups, such as children or seniors, may bar individuals with assault convictions from volunteering.
Record Suspension:
While you can apply for a record suspension (pardon) after a certain period, the process is complex and time-consuming, and it doesn’t erase the record entirely.
2. Jail Time and Fines Based on the Severity of the Offence
The penalties for assault in Calgary vary depending on the type and severity of the charge. The Criminal Code of Canada outlines the following potential consequences:
- Simple Assault (Section 265):
- Summary Conviction: Up to 6 months in jail and/or fines up to $5,000.
- Indictable Offence: Up to 5 years in prison.
- Assault with a Weapon or Causing Bodily Harm (Section 267):
- Up to 10 years in prison if prosecuted as an indictable offence.
- Aggravated Assault (Section 268):
- Up to 14 years in prison if the victim is severely injured or disfigured.
- Domestic Assault:
- Penalties depend on the severity but can include jail time, fines, probation, and mandatory counselling programs.
- Sexual Assault (Section 271):
- Penalties can range from 18 months for a summary conviction to 10 years for an indictable offence. If the victim is under 16 years of age, minimum sentences apply.
In addition to jail time and fines, the court may impose conditions such as:
- Probation Orders
- Restraining Orders
- Mandatory Anger Management or Counselling Programs
3. Impact on Employment, Education, and Travel
Employment:
- Many Calgary employers require a clean background check as part of the hiring process.
- Career opportunities in fields like healthcare, education, law enforcement, and finance may be restricted.
- Existing jobs may be jeopardized if your role requires a clean record or if you’re unable to meet job requirements due to sentencing or probation conditions.
Education:
- Universities and colleges may deny admission to applicants with criminal records.
- Certain professional programs (e.g., law, medicine, education) may exclude candidates with assault convictions.
- Scholarships and financial aid opportunities may also be limited.
Travel Restrictions:
- A criminal record can make it difficult or impossible to travel internationally.
- The United States is particularly strict; a conviction for assault may result in being denied entry.
- Applying for visas, work permits, or residency in other countries can be challenging or require extensive documentation.
FAQs About Assault Charges in Calgary
Facing an assault charge in Calgary can be overwhelming, and you may have many questions about the legal process and potential outcomes. Below are answers to some of the most frequently asked questions about assault charges in Calgary.
1. What Should I Do if I’m Charged with Assault?
Steps to Take Immediately:
- Remain Calm: Do not resist arrest or argue with the police.
- Exercise Your Right to Remain Silent: You have the right not to answer questions without a lawyer present. Anything you say can be used against you.
- Request a Lawyer: Ask to speak to a lawyer as soon as possible. You can contact a Calgary assault lawyer or request duty counsel if you don’t have a lawyer.
- Comply with Conditions: If you are released on bail or with conditions, ensure you follow them strictly to avoid further charges.
- Document Everything: Record details of the incident, including witness names and any relevant information, to share with your lawyer.
2. Can an Assault Charge Be Dropped?
Yes, but it Depends on Several Factors:
- The Crown Prosecutor has the authority to drop charges if there is insufficient evidence or if proceeding with the case is not in the public interest.
- Your Calgary assault lawyer may negotiate with the Crown to have the charges dropped or withdrawn by presenting new evidence, highlighting weaknesses in the case, or agreeing to conditions such as diversion programs or counselling.
- In cases involving domestic assault, the Crown may still proceed even if the complainant wants to drop the charges due to the public interest in preventing domestic violence.
3. How Long Does an Assault Case Take in Calgary?
Typical Timelines:
The length of an assault case can vary based on several factors, including the complexity of the case, court availability, and whether the case goes to trial. Generally:
- Simple Assault Cases: If resolved through a plea or summary conviction, cases may take 3 to 6 months.
- Complex or Indictable Cases: If the case proceeds to trial, it may take 12 months or longer.
- Bail Hearings: Usually occur within 24 to 48 hours after arrest.
- Disclosure and Pre-Trial Motions: Reviewing evidence and preparing for trial can take several weeks to months.
Your Calgary assault lawyer will help manage timelines and ensure you’re prepared for each stage.
4. What Are the Penalties for an Assault Conviction?
Penalties Vary by the Type of Assault:
- Simple Assault (Section 265):
- Summary Conviction: Up to 6 months in jail and/or a fine up to $5,000.
- Indictable Offence: Up to 5 years in prison.
- Assault with a Weapon or Causing Bodily Harm (Section 267):
- Up to 10 years in prison if prosecuted as an indictable offence.
- Aggravated Assault (Section 268):
- Up to 14 years in prison.
- Domestic Assault:
- Sentences vary but may include jail time, probation, mandatory counselling, and no-contact orders.
- Sexual Assault (Section 271):
- Summary Conviction: Up to 18 months in jail.
- Indictable Offence: Up to 10 years in prison.
Additional Consequences:
- Criminal Record
- Employment Restrictions
- Travel Limitations
- Impact on Professional Licences and Reputation
A skilled Calgary assault lawyer can help you understand the potential penalties specific to your case and work towards minimizing these consequences.