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Tom Rees | Criminal Defence Lawyer Winnipeg
10
Jun

Criminal Law: How to Prove the Charge of Assault

 

You are innocent until proven guilty. That means that the Crown must prove that you are guilty of an offence beyond a reasonable doubt in order for you to be convicted. The list of things the Crown must prove are called the Elements of the Offence.

In order for you to be found guilty of the charge of Assault, the Crown must prove the following elements:

  1. You applied force to someone;
  2. They did not consent to having the force applied to them; and
  3. The force was applied on purpose.

In order to prove those elements, the Crown must call Witnesses to the incident. The witnesses generally must have seen the assault with their own eyes in order to be allowed to testify about it.

In cases where there were no witnesses, the court will usually hear from the complainant and the accused and then determine guilt of innocence. In those instances, the court uses the rule from a case called R. v. W.(D) to determine guilt.

First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

 

One common issue that sometimes arises in assault cases is Self Defence. The accused has the burden of proving self defence on a balance of probabilities. The self defence provisions of the Criminal Code of Canada have changed over the past few years. The newest version of the section is reproduced below:

  •  (1) A person is not guilty of an offence if

    • (a) 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;

    • (b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

    • (c) the act committed is reasonable in the circumstances.

  • (2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

    • (a) the nature of the force or threat;

    • (b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

    • (c) the person’s role in the incident;

    • (d) whether any party to the incident used or threatened to use a weapon;

    • (e) the size, age, gender and physical capabilities of the parties to the incident;

    • (f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

    • (f.1) any history of interaction or communication between the parties to the incident;

    • (g) the nature and proportionality of the person’s response to the use or threat of force; and

    • (h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

 

The Crown must prove the elements of the offence beyond a reasonable doubt for you to be convicted of a crime. In the case of assault, there are only three elements to be proved. If you are asserting you acted in self defence, then the burden is on you to show it is more likely that you applied force to another person to protect yourself.

If you’ve been charged with assault you should get advice from a lawyer. The Criminal Justice System can be tricky, and isn’t always logical in its application. Your best bet is to seek the assistance of a criminal lawyer to ensure you have the best defence, and your rights are protected.
*note: the information on this page is not legal advice.

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