Charged with Assault? Our Vancouver Criminal, Trial and Appeal Lawyers can be reached at 604-669-8602
“But I only shook my fist at her because she was in my face. I’d never hit her in a million years… and she knows it.”
Many a client has mistakenly thought that to be convicted they must have actually hit a person or at the very least tried or even intended to hit someone. However, the section clearly contemplates, in the broadest terms, in subsection (b), that a threatening gesture that causes a reasonable person to believe the accused had the ability to carry it out, is a criminal assault. All that is necessary for a conviction is the general intent to make the gesture even if the person has no intention of striking anyone.
Another misconception is that if one is drunk they cannot be found guilty because they had no intent. While alcohol or drugs can be a defence it is very rare. The individual cannot have voluntarily ingested alcohol and the level of intoxication must amount to virtual insanity. That is to say there must be so much alcohol or drug ingested that the individual has lost the capacity to form any intent. So that ” I was drunk and didn’t mean” it doesn’t even come close to a legal excuse or defence. It is the latter part of the scenario where we come in. If it can be demonstrated, or a doubt raised that the alleged “victim” either consented to the altercation or did not believe an assault was possible than there ought to be an acquittal.
Despite misconceptions, a criminal trial is not a contest. An accused is presumed innocent at law and that never changes until the Crown has put a body of evidence before a judge or jury that proves beyond any reasonable doubt that the person has committed an offence. The burden never changes.
We are skilled at cross-examination and it is our primary job to test the Crown’s case and put the Crown to the burden of proving their allegation beyond any reasonable doubt. Often we are able to convince the prosecution that their case has not meet that standard and the charges are dropped. We enjoy an excellent reputation with Court and Crown and our submissions are not taken lightly.
265. (1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
-Terry LaLiberté Q.C.