Assault in Alberta
Legal Guidance by eLaw Alliance - We stand up for you.The content you see here isn’t legal advice. If you want to chat with a lawyer, reach out and we can set up a free consultation!
Want to learn more about how we help clients?
How to navigate an assault charge?
So, you’ve found yourself in the unfortunate situation of facing an assault charge in Alberta. Now you want to know what to do and what to expect. This page is for you. Let me tell you about:
- What constitutes an assault as defined by the Criminal Code of Canada;
- the court process,
- common mistakes to avoid post charge,
- information about possible defenses,
- ways to resolve the allegation of any type of assault.
- what sentences may be available.
Protect Your Rights with Expert Legal Support
Facing assault charges can be overwhelming, but you don’t have to go it alone. Contact eLaw Alliance today for a free, confidential consultation and take the first step toward protecting your future.
Unsure on what to do with an allegation or criminal assault charge?
Definition of Assault
The Criminal Code of Canada defines an assault as:
- the intentional infliction of force (direct or indirect), without someone’s consent; and
- a threat or attempted threat to apply force that one reasonably believes could be carried out; and
- when someone brandishes a weapon, or imitation of, and disrupts another person.
Examples of Assault
- Sexual assaults;
- Assaults causing injuries or bodily harm;
- Simple assaults;
- Assaults with a weapon(s);
- Aggravated assaults;
- Utter threats.
In Canada, when you’re charged with any type of assault, you are presumed innocent until proven guilty. It’s important to understand that being charged with a crime is not the same as being convicted. A charge gives you the benefit of the presumption of innocence, while a conviction does not.
General Court Process in Alberta
Your initial and subsequent pre-trial court appearances are called “docket” court appearances. If you haven’t consulted a lawyer by your first court appearance, you can request an adjournment (more time) from the presiding judge in order to seek legal advice or representation. Courts often grant accused individuals additional time, usually in weekly increments, to seek legal advice and representation. Many judges understand that entering a not guilty or guilty plea on the first court appearance may not be feasible, so they typically allow reasonable time for pleas to be made.
If you’ve already hired a lawyer, they will likely request a copy of your “disclosure” during the pre-trial or docket court stages. This disclosure is obtained directly from the Crown prosecutor, who is obligated to provide it to your lawyer.
Disclosure refers to the collection of information or evidence gathered by law enforcement or provided to prosecutors, detailing the case against you.
Disclosure may include items such as:
- Witness statements;
- Accused person’s statement (if any);
- Video evidence;
- Audio evidence;
- Documentary evidence;
- DNA or fingerprint evidence.
- Expert reports.
After reviewing your disclosure, you’ll typically make a decision about your plea. You can enter a plea of “not guilty” or “guilty.” It’s important to note that a guilty plea is not the same as a finding of guilt; a guilty plea is a voluntary acceptance of responsibility for the allegations and it means you waive your right to a trial. A finding of guilt comes after a trial when a judge or jury delivers a guilty verdict.
During the docket phase of court, it’s common for lawyers to request an early case resolution offer. This is a written proposal from the prosecutor outlining a deal in exchange for a guilty plea. Requesting this offer doesn’t imply guilt or an intention to plead guilty; it simply provides an option for you and your lawyer to consider.
If you plead not guilty, a trial date will be scheduled. At trial you will be given the opportunity to argue any defenses or triable issues. At the conclusion of the trial a Judge or jury may find you not guilty or guilty. Conversely, if you plead guilty, a summary disposition date (also known as a guilty plea date) will be set, leading to a sentencing.
Common Mistakes To Avoid When Dealing With An Assault Charge
Providing Incriminating Statements/Not Exercising Your Right to Remain Silent
If you find yourself dealing with an allegation of any type of assault know that you are not obligated to provide police with your side of the story. You may talk to a lawyer before choosing to speak to police so that you can be informed of the comprehensiveness and purpose of your right to remain silent before you choose to speak to police or not. When you waive your right to silence and choose to provide a statement to police by talking to them, know that what you say may be used against you in future legal proceedings such as at your trial. If you want to preserve your narrative and guard against any misinterpretation of or skewing by police of your side of the story, consider exercising your right to silence. Knowing your rights before choosing to speak to or not speak to police, is very important. So important in fact that police must inform you of your right to remain silent and the consequences of if you choose to talk. Police are required to give you an opportunity to talk to a lawyer before the police interview you.
Not Getting Legal Advice Prior to Entering a Plea
Hiring a lawyer to review your disclosure and provide insight on whether to go to trial or accept a guilty plea can be a smart move. You may not be aware of potential legal defenses or strategies that could affect your case and have serious personal implications. Keep in mind that it’s the prosecutor’s job to prove every element of the offense beyond a reasonable doubt and hiring a lawyer may help you avoid jail or avoid a conviction.
Breaches of No Contact Conditions
No-contact conditions often accompany assault charges, meaning you’re prohibited from contacting the alleged victim, whether directly or indirectly. Indirect contact includes relaying messages through a third party, like a family member, while direct contact refers to initiating communication or contact with the alleged victim or responding to any communication initiated by the alleged victim. It’s a common misconception that if the alleged victim reaches out first, responding wouldn’t violate the no-contact condition. If you are bound by a no contact condition, one way to avoid breaching a no contact condition, is to refrain from communicating or contacting the alleged victim, completely, even if the alleged victim initiates the communication. If you breach a no contact condition by direct or indirect contact with the alleged victim or if you respond to contact from the alleged victim, you may suffer the legal repercussions (such as being charged with breaching a no contact condition) and those legal repercussions could lead to a stint in jail.
Believing the Complainant Controls the Decision of Whether Charges Proceed or Not
Sometimes, alleged victims of assault may regret involving the police and want to reconnect with the accused. There’s a common misconception that it’s the complainant/alleged victim who decides whether the case moves forward. Even if the complainant wishes to drop the charges, they do not have the authority to decide if the case proceeds. The decision to withdraw charges rests with the Crown prosecutor. A prosecutor may choose to proceed with the case even if the complainant no longer wishes to pursue it.
Need Representation From A Lawyer? Contact Today and get a free one hour consultation.
Possible Defences Against an assault charge
Self Defense
The self defense defense requires:
- a reasonably grounded belief that someone is going to use force against you or threatens to use force against you; and
- that any action (such as physical) taken by the person claiming this defense be for the actual purpose of defending themselves. Generally speaking, this means the opposite of instigating or initiating physical contact (but in some rare circumstances an aggressor may argue self defense); and
- that the physical action(s) taken in self defense are reasonable in the circumstances.
For the self defense argument to work, the triggering threat must be assessed by a Judge on a combined subjective and objective basis. The subjective element is what the accused person honestly believed and the objective element is what a reasonable person would have believed in the circumstances.
Lack of Intent
Criminal laws in Canada are not supposed to punish the unblameworthy. Criminal offenses by their nature include intent (meaning the mental state of the accused person). Where there is no specific or general intent to commit an offense, there lies the possible defense of lack of intent.
Flawed Identification
Proving the identity of the accused is an essential element of proving any type of assault and if the crown prosecutor can’t prove identity beyond a reasonable doubt, there will be no conviction. Identification is key to securing a conviction and if identification evidence is flawed or faulty in some way or if its accuracy is being questioned, that could lead to an acquittal or finding of not guilty.
Reflex Action
One situation where reflex action could be used as a defense is when someone is walking on the sidewalk, slips on ice, and instinctively and inconsequently bumps into a nearby stranger. Another example is when riding the subway or LRT and it suddenly stops causing someone to bump the stranger next to them. In such cases, this reflexive or involuntary action might be considered justifiable or not subject to blame
Defense of Property
The following circumstances may not constitute an assault:
- if someone reasonably believes he or she are legitimately in possession of property; and
- if that someone also reasonably believes that another person who is not entitled to be in the property entered or wants to enter the property to take something, or has taken something, or has entered the property to damage or destroy property, or has damaged or destroyed property; and
- if that someone takes action to prevent or stop another person from entering the property or takes action to prevent or stop someone from taking from that property; and
- if the actions taken by that someone are reasonable in the circumstances.
For instance, if a lawful homeowner reasonably and calmly escorts a trespasser who is posing a threat, off their property, this action may be justified.
Necessity
The test for the necessity defense is modified objective and the 3 requirements for the necessity defense are:
- there must be imminent peril; and
- no reasonable legal alternative but to break the law; and
- the harm inflicted by the accused person must be proportional to the threat being avoided.
Get a crash course in criminal law by one of our experienced team members.
Legal issues can be stressful and the Justice System is difficult for the average person to navigate. A conversation with one of our expert lawyers will help alleviate your stress and allow you to make an informed decision about your situation.
How To Resolve An Allegation of Assault in Alberta
A “plea” is the response by an accused person to his or her criminal charge(s). In Canada there are 2 types of pleas, “guilty” or “not guilty”. An accused person has a right to a trial and an accused person also has a right to waive their trial and instead admit guilt. Choosing whether to plead guilty or not guilty is a serious decision with potential serious consequences. So, before you decide to go to trial or waive your right to a trial, talk to a lawyer. An informed lawyer can give you information to help you decide whether to go to trial or not. If you can afford a lawyer consider hiring one. If you can’t afford a lawyer find out if you qualify for legal aid or other community legal clinics. If you are self represented consider seeking out free consultations from lawyers willing to inform you of the general aspects of the trial process or sentencing process, before your court appearance(s).
Not all assault charges end with a “guilty” or “not guilty” finding or a decision to plead guilty. Some of those charges are resolved because the prosecutor withdraws the charge or enters a stay of proceedings. In some cases, when the prosecutor finds it appropriate to do so, certain types of assaults are resolved by the accused person entering into a peace bond and the charges getting withdrawn. A peace bond is like a written contract an accused person signs and in that contract contains terms the accused must follows, such as to keep the peace and be of good behavior for a defined period of time. If the accused person breaches the condition(s) of that peace bond it could lead to additional criminal charges and a stint in jail.
Available Sentences for Assaults
The sentence available for any type of assault is dependant on:
- the type of the assault (ex. Aggravated assault or sexual assault or simple assault); and
- the circumstances of the assault;
- the personal circumstances of the offender.
For example, a first-time offender who pleads guilty early on in the court process and accepts responsibility for a non injurious type of assault, may be sentenced to a fine or term of probation or a conditional or absolute discharge. While an assault with injuries may result in a sentence of a lengthy jail term. Even non serious injury assaults could lead to a stint in jail say if the offender has a prior criminal record or if the victim was a spouse or intimate partner. Some types of assaults, such as sexual assault with an aggravating factor carry automatic prison sentence (called a mandatory minimum sentence).
Call Us
If you would like to speak with someone directly.