If you are charged with an assault pursuant to the Criminal Code of Canada you should contact a lawyer immediately. Below is some general legal information about Assault charges
There are different charges for assault that vary in seriousness.
Common assault (266 of the Criminal Code) is the least egregious form of assault charge. All other things being equal, the sanctions that come with this charge are less severe than Assault Causing Bodily Harm, Assault with a Weapon or Aggravated Assault. The latter three charges generally can justify a period of incarceration even if this was a first offence.
Credibility of Witnesses
The credibility of a witness is always important. With some domestic cases (especially he said she said cases) the credibility of a witness can mean the difference between a finding of guilt and a finding of not guilty.
It is important to have a lawyer discuss how credibility is affected by the many things including the following:
- The motive for the complainant to fabricate or embellish including
- Bargaining power with family court matters;
- Anger or resentment on the part of the complainant and;
- Inconsistent statements (including recant statements) from the complainant
- Criminal record of the complainant
A charge is not a criminal record
Q. Do I have a criminal record now?
A. When you are first charged with a criminal offence (i.e. by the police) you are presumed innocent until proven guilty. A criminal record only comes if you are convicted (i.e. found guilty in court or plead guilty before a court). For people that do not have a criminal record, it is understandable that the number one priority would be to ensure that you avoid a criminal record.
Charges resolved without a trial
Q. Is it possible to get these charges thrown out?
A. There are a number of ways to obtain a withdrawal of your charges without running a trial.
- If your lawyer discusses with the Crown Attorney that there is no realistic prospect of conviction for the case. In these circumstances the Crown Attorney are obliged to withdraw your charges.
- If your lawyer and the Crown Attorney agree to resolve the matter with a Peace Bond (810 recognizance). This means that the Crown is in agreement that you should be left without a criminal record as long as you agree to conditions for a period of time.
Domestic assault charges
Charges are laid by the police and crown not the complainant
Q. If my wife/girlfriend or husband/boyfriend (spouse) wants to drop the charges can they do so?
A. It is not the alleged victim that lays charges under the Criminal Code (unless there is a private prosecution). It is the police that lays charges in Canada and the Crown Attorney then proceeds with the prosecution. Even if the complainant wants the charges dropped, it is not up to them. The Crown Attorney (public prosecution/prosecutor) in Nova Scotia has a policy to proceed even if the complainant does not want to proceed.
Conditions of Recognizance
Q. When I was charged, the police had me sign a recognizance, am I allowed to talk to my spouse?
A. Often the police have an accused sign a recognizance that states that the accused is not allowed to have direct or indirect contact with the complainant. It is very important to comply with these conditions because a failure to do so constitutes a breach of your recognizance (failure to comply pursuant to 145(3) of the criminal code). This would come with a criminal record and potentially a term of imprisonment.
Q2. Can I get these conditions changed?
A2. Through a lawyer, you could get the conditions varied but in order to do this in the provincial court requires crown consent. The crown may want to speak with the complainant prior to determining if they will consent to the variation and therefore it is important to have a lawyer speak with your spouse to ensure that she is desirous of contact and understands the procedure to obtain variation.