assault

Domestic Assault Charges in Canada

Written on Behalf of Affleck & Barrison LLP

In Canada, domestic assault is a very serious offence and the nature of the offence is considered an “aggravating factor” during sentencing for those found guilty.  That is to say that the penalty will be more severe than for those found guilty of an assault not having taken place in a domestic context.

WHAT IS DOMESTIC ASSAULT?

Although domestic assault is not specifically defined in the Criminal Code, it is treated differently than regular assault by the police and the courts. 

Domestic assault is an assault that occurs in the context of a domestic or intimate relationship between two people.  This includes relationships such as boyfriends and girlfriends, spouses or common-law partners, and other family members. 

In Canada, domestic assaults are treated more seriously by police and the courts for the following reasons:

  • Domestic abuse is widespread in Canada;
  • Domestic abuse can devastatingly impact children;
  • There is a high risk that domestic violence will escalate if it is not dealt with quickly and effectively.

The Crown prosecutor has the burden to prove the charges of domestic assault beyond a reasonable doubt, including:

  • That the complainant was in a domestic relationship with the accused (i.e. family member, romantic relationship, spouse or common law partner);
  • That the accused directly or indirectly applied force to the complainant without consent;
  • That the application of force was intentional or through the use of words or actions or threatened to apply force to the complaint and had the ability to carry out the threat or the accused accosted or begged the complainant while holding a weapon or imitation of a weapon.

Thus, domestic abuse does not necessarily involve physical abuse, but can include the threat of assault, coercion, sexual abuse and economic abuse.

WHAT IS THE BURDEN OF PROOF AND WHAT EVIDENCE CAN BE USED IN COURT?

If you are charged with domestic assault, it is up to the Crown prosecutor to prove the charges beyond a reasonable doubt.  The Crown needs to have enough evidence to prove the case.  However, even if the Crown has the evidence to satisfy the burden, there may be other evidence to contradict the Crown’s evidence. 

The main witness in a domestic assault case is the alleged victim, the person who has been allegedly assaulted.  This person is likely the husband or wife, girlfriend or boyfriend of the accused.  This person will provide “viva voca” evidence (spoken words) to tell their side of the story regarding the alleged assault.

If there are alleged physical injuries, medical records or testimony from medical professionals may be used as evidence in court.  There will also be evidence from one or more police officers to testify as to what he/she saw or heard when they arrived on the scene.

WHAT DEFENCES ARE AVAILABLE IN DOMESTIC ASSAULT CASES?

Consent

The Crown prosecutor has the burden to prove that the accused assaulted his/her spouse/partner without his/her consent.  However, if the accused and his/her spouse agreed to take part in rough sex play, for example, the judge may find that the Crown has not proved the essential element of consent. 

Self-Defence

Self-defence is a common defence to any type of assault charge.  However, there have been recent changes in the law and an accused can only use this defence when a number of criteria set out in the Criminal Code are met.  The following are the criteria necessary in order to make a successful self-defence argument:

  • Force is being used against you, or you had reasonable grounds to believe that force would be used against you;
  • Your response to the threat was for the purpose of defending or protecting yourself from the threat or use of force;
  • Your response to the threat was reasonable in the circumstances (i.e. a reasonable person in the same situation would have acted in a similar way).

A court will also consider the following factors in determining what was reasonable in the circumstances, including: 

  • The history of the two parties;
  • Whether either party was intoxicated at the time of the offence;
  • The size, age, gender and physical capabilities of the parties;
  • The nature of the force being used against the accused;
  • Whether there were other ways to respond;
  • Any prior force events;
  • Whether the responding force was proportional to the initial force.

WHAT ARE THE PENALTIES FOR DOMESTIC ASSAULT?

In Canada, the penalties for domestic assault depend upon the circumstances of each case and can range from a peace bond to jail time.  If the Crown is proceeding by summary conviction (less serious offences), the offender may be required to pay restitution to the wronged party or pay for property damage or medical bills.  If the crime does not warrant a jail sentence, the offender may receive a suspended sentence (i.e. remain under probation) or conditional sentence (i.e. house arrest).

However, if the Crown is proceeding by indictment (most serious offences), it is likely that the assault was very serious in nature and the accused will face jail time if convicted.  For charges such as sexual assault or assault causing bodily harm, the accused can face up to 10 years in prison.  However, if the conviction is for aggravated assault, the accused can face up to 14 years in prison.

Offenders who are convicted of more serious forms of domestic assault are also likely to receive ancillary orders, such as a DNA order or firearms prohibition.  A DNA order requires the offender to submit samples of DNA to a national database that can be accessed by police officers across Canada.

If you are facing domestic assault charges, it is strongly recommended that you contact the experienced criminal defence lawyers at Affleck & Barrison LLP today online or at 905-404-1947 to find out what your options are to achieve the best possible result. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times. 

Ontario Will No Longer Prosecute HIV Non-Disclosure Cases

Written on Behalf of Affleck & Barrison LLP

We have previously blogged about criminal charges being laid against individuals living with HIV who fail to disclose their health status prior to engaging in sexual relations. Given the advancements in science and medicine in terms of treatment of the disease, we are beginning to see that changes are necessary to the criminal justice system.

ONTARIO GOVERNMENT’S ANNOUNCEMENT

On World AIDS Day (December 1, 2017), Ontario Attorney General, Yasir Naqvi, and Health Minister, Eric Hoskins, announced that Crown attorneys in Ontario will no longer prosecute cases of HIV-positive individuals who do not disclose their health status to their sexual partner if they have a suppressed viral load for six months.

World AIDS Day is recognized as a time to consider the impact that HIV/AIDS has had on Canadians and thank those dedicated to preventing the disease and caring for and treating those that the disease has impacted.

Over the years there have been remarkable medical advances and HIV treatment has slowed disease progression so that many HIV-positive individuals can now consider the disease as a chronic, manageable condition. The criminal justice system must now reflect the current reality of this disease.

HIV TRANSMISSION RISKS

Studies have found that sexual activity, whether using a condom or not, with an HIV- positive individual who is receiving prescribed treatment and has maintained a suppressed viral load poses a negligible risk of transmission.

Viral load refers to the amount of HIV virus in a person’s blood. Viral suppression is defined as suppressing or reducing the function and replication of a virus. Reaching viral suppression means that the amount of HIV in an individual is very low. Viral suppression can help HIV positive individuals live healthier and longer lives and can reduce the likelihood of transmitting the virus to another person.

CRIMINAL JUSTICE SYSTEM RESPONSES TO HIV NON-DISCLOSURE CASES

The Supreme Court of Canada in the 2012 R. v. Mabior decision established that HIV-positive individuals have a duty to disclose their HIV status prior to sexual activity that poses a “realistic possibility of transmission”. The Court convicted Mabior on three counts because, although he had a low viral load when he had intercourse with three sexual partners, he did not use a condom. The Court found that Mabior met the test for “a realistic possibility of transmission of HIV” and therefore was convicted. At the time, the law was clear that HIV-positive individuals must disclose their status before engaging in sexual activity that poses a realistic possibility of transmission of HIV in order to avoid criminal liability.

However, the Supreme Court of Canada in the R. v. Mabior decision also recognized that scientific and medical advances regarding HIV/AIDS would progress over time and allowed for the law to evolve in the future as well.

Having reviewed all of the updated medical and scientific evidence, the Ontario government has decided that the criminal law should not apply to individuals living with HIV who have engaged in sexual activity without disclosing their status as long as they have maintained a suppressed viral load as the “realistic possibility of transmission test” is not met in these circumstances. An individual living with HIV who complies with their treatment is viewed as an individual who is acting responsibly.

In general, it is recommended by Canada’s Department of Justice that because the realistic possibility of transmission test is likely not met, the criminal law should not apply to:

  • Individuals living with HIV who are in treatment;
  • Individuals living with HIV who are not in treatment, but use condoms;
  • Individuals living with HIV who only engage in oral sex (unless other risk factors are present and the individual living with HIV is aware of those risks).

We will continue to follow any developments in the provincial and federal review of criminalization of HIV non-disclosure and will blog about updates as they become available.

In the meantime, if you have any questions about your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We offer 24-hour phone service, 7 days a week for your convenience.

HIV Positive Status to Potentially Factor into Sexual Assault Sentencing

Written on Behalf of Affleck & Barrison LLP

Crown prosecutors in Saskatchewan recently clarified that an HIV positive man facing charges for choking a woman unconscious and then sexually assaulting her will not be charged with aggravated sexual assault. However, the Crown has argued that the man’s HIV status and the victim’s subsequent fear of having potentially contracted the virus should be considered during sentencing.

What Happened?

The sexual assault occurred in May 2015. The victim was on her way home after socializing with friends at a pub. She was accompanied by a friend until she was about half block from her apartment. As she cut through a back alley, she was approached by the man in question, who rode his bike alongside her, started making inappropriate comments, and touching her. The man eventually tackled her, choked her unconscious, and forcibly penetrated her before she eventually escaped.

After the man was arrested, the victim learned that he was HIV-positive. She was treated with potent post-exposure antiretroviral drugs and experienced six months of anxiety while she awaited her test results (which were negative).

Aggravated Sexual Assault

The Crown initially charged the man with aggravated sexual assault due to his HIV-positive status. Originally, the risk of transmission to the victim was considered the aggravating factor in the assault, however, the Crown reconsidered its original charge after evidence from an infectious disease specialist revealed that the man had regularly been taking antiretroviral drugs which suppressed his virus to a low enough level that transmission was “nearly impossible”. The man’s HIV-positive status, therefore, did not endanger the woman’s life.

He was still convicted of aggravated sexual assault, but it was because he choked the victim, not because of his HIV-positive status.

Prosecutors asked for a minimum sentence of 12 years, arguing that the victim’s fear of contracting HIV had been real, even if the actual risk of doing so was not. They noted that:

However low the risk is, the anxiety for the victim when she found out that this individual was in fact HIV-positive, is an aggravating factor.

HIV Prosecutions in Canada

As we previously blogged about, the majority of HIV-related prosecutions in Canada involve consensual sexual relationships which eventually led to prosecution because an HIV-infected partner did not disclose his or her status.

In 2012, the Supreme Court of Canada clarified that individuals with low-level HIV who use condoms when they engage in sexual relations, cannot be charged with aggravated sexual assault for non-disclosure of their status.

Since then, HIV activists have argued that the SCC’s criteria are too stringent and that medical advances in reducing transmission risk have progressed to the point that it is not necessary for individuals to have both a low viral load and to wear a condom. Experts have said that adding a condom to the situation “negligibly changes the risk” because the risk of transmission is already basically zero.

In this case, experts praised the fact that prosecutors recognized the reduced transmission risk, despite the lack of condom use, to determine that a charge of aggravated sexual assault was not justified.

Perception of Risk as Aggravating Factor

Both the Crown and defence lawyers recognized that, in this case, the victim’s fear of transmission could be considered an aggravating factor. However, the Defence is asking for a five-year sentence. Sentencing was delayed by three weeks in order to provide the Judge time to review a Gladue Report (a special pre-sentencing hearing into an Indigenous perpetrator’s background).

The provincial and federal governments are both currently reviewing the criminalization of HIV non-disclosure. We will continue to follow the developments and will provide updates as they become available.

In the meantime, if you have questions about your rights, contact one of the knowledgeable and well-respected Oshawa criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. Our lawyers have experience successfully defending charges of aggravated assault and sexual assault. We will take the time to understand the particular circumstances of your case and work to achieve the best possible result.

Ontario Goalie Gets 30 Day Jail Sentence for On-Ice Assault

Written on Behalf of Affleck & Barrison LLP

Todd Ball, a goalie who “destroyed” another hockey player’s face with his stick has been sentenced to 30 days in jail (to be served on weekends) and one year of probation for assault causing bodily harm.

Stick to the Face

The incident occurred in May 2016 on the final day of the 3-on-3 Ice Hockey Challenge, a beer-league tournament in Fort Erie.

Ball was intoxicated at the time of the incident. He and some friends had been celebrating his birthday and binge drinking since early in the morning. The victim, Ryan Cox, was on a breakaway near the end of the game. As Cox approached the net, Ball left the goalie crease and, using both hands, violently swung his goalie stick directly into Cox’s face. Cox was immediately taken to hospital where he underwent more than seven hours of surgery to reconstruct his face and repair the significant damage.

http://https://www.youtube.com/watch?v=FX3riOFqdWk

Medical records indicate that Cox suffered a concussion, fractures on both sides of his nose, a shattered nose, and fractured orbital bone. He currently has six plates holding his face together, and his treatment is not yet done. Since the incident which took place more than 11 months ago, he has been unable to return to work. He says that his “life has never been the same”, and that he cannot feel his face, gets bad headaches, and that it is hard for him to sleep.

Assault Charges

Ball originally faced more serious charges of aggravated assault, but struck a plea deal for the more lenient charge of assault. He has reportedly written Cox a letter of apology and is also seeking treatment for alcoholism.

At trial, the Crown prosecutor recommended that Ball be sentenced from anywhere between 30 days to nine months in jail. Ball’s defense counsel requested that Ball be placed on probation or be given a conditional discharge.

Justice Colvin stated that on-ice assaults during a hockey game are a challenge for the legal system. By stepping onto the ice, all players accept that there may be some level of violence in the game, and that they may be injured. The challenge arises in differentiating between the nature of hockey, which involves physical contact, and criminal conduct that occurs outside of this standard context of the game.

Justice Colvin has said:

In my mind, the significant fact is that this was a non-contact, fun tournament…it makes it very different from cases involving competitive play, for instance in the NHL or the AHL. Some violence might be expected in those games, though not so much as to bring criminal law into play.

In reaching his final decision, Justice Colvin considered a pre-sentencing report written about Ball. According to the report, Ball had a “troublesome upbringing”, which the judge stated was “an understatement”.

Ball’s father was a violent, abusive biker who had spent 20 years in prison. Over the course of Ball’s childhood, there were a number of police interventions at the family home, including one which ended in a 10-hour standoff with an emergency task unit. Ball’s father was eventually beaten to death by a biker gang when Ball was 12 years old.

Justice Colvin ultimately determined that Ball’s background and drinking problem were an explanation, but not an excuse, for his actions on the ice.

Justice Colvin also commented on the difficult nature of sentencing, stating:

Sentencing must attempt to strike a balance between the offence and its consequences on the one side, and the offender, both good and bad, on the other side. That balance is difficult to find. For the victim, his friends and family, no punishment can be enough. For the accused, his friends and family, no amount of understanding, compassion, and forgiveness is enough.

If you are facing assault charges, contact Durham region assault lawyers Affleck & Barrison LLP. We have a reputation for effective results in defending all manner of assault charges. We offer a variety of payment options, a free initial consultation, and a 24-hour phone service. Contact us at 905-404-1947 or online to speak with an Oshawa lawyer specializing in the defence of assault.

Teens Dressed as Creepy Clowns in Oshawa Face Charges  

Written on Behalf of Affleck & Barrison LLP

The “creepy clown” trend that first emerged in the U.S has moved north of the border and is affecting cities and towns across Ontario. Police in Durham region have responded to more than 30 calls involving “creepy clowns” in less than three weeks.

Recently, three Oshawa teens were charged with causing a nuisance after pulling up to pedestrians in a grey vehicle while dressed as clowns, opening the doors, and trying to scare other drivers. One of the teens was additionally charged with reckless driving.

While the “creepy clown” trend may seem like a harmless prank, or a funny way to bring yourself some fleeting Internet fame, there can be some serious civil and criminal repercussions.

Reckless Driving and Other Driving Offences

Negligence and reckless driving are both civil, not criminal charges. However, if the actions of these three Oshawa pranksters were more serious, and caused bodily harm, for instance, they could potentially have faced more serious criminal charges of criminal negligence or dangerous driving.

We’ve previously blogged about driving offences and their potentially significant consequences. Not only do these offences carry significant financial penalties and substantial implications on car insurance, they can also come with potential jail terms (up to 5 years, or 10-14 years for dangerous driving depending on whether it caused bodily harm). Needless to say, pranking someone while operating a motor vehicle (whether or not you’re dressed as a clown) is not advisable, and can have serious implications.

Other Potential Criminal Implications of “Creepy Clowning”

After receiving more than a dozen calls about creepy clown sightings in the area, police in Kitchener-Waterloo had to issue warnings to the public stating that while it is not illegal to dress like a clown, it is a crime to intimidate, threaten or harass people, even if it done just as a prank.

A Waterloo Region police spokesperson stated that police become concerned and potential criminal charges are possible where people dressed as clowns “…start to chase young children, start to try to scare young adults, or, in some cases carry replica weapons and try to intimidate individuals”.

There were multiple such incidents in the Kitchener-Waterloo area recently. In one case a clown was seen carrying an imitation sword and a plastic gun. In another, two clowns chased a pair of girls, and in yet another three clowns (one carrying a large stick) followed a pedestrian. Nobody was physically injured in any of these cases, but this does not mean that criminal charges would not have been laid had police found the pranksters. The perpetrators may have, for instance, faced assault charges.

Section 265(1) of the Criminal Code provides that a person commits an assault where he/she “attempts or threatens, by an act or 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/her] purposes.”

It is not difficult to see how someone dressed as a clown and acting menacingly/chasing someone down the street could be viewed as threatening to apply force to another person through their act or gesture, therefore facing possible assault charges.

Such charges would be even more likely where the person dressed as a clown was carrying a “weapon”, even if it was plastic given that under s. 265(1), it is also assault to “accost or impede another person” while “openly wearing or carrying a weapon or an imitation thereof.”

What Does This Mean?

As funny as it may seem to terrify someone while dressed as a clown, it is noteworthy that any such actions could lead to criminal charges, particularly as communities, schools, and parents have become very sensitive to such actions in recent weeks.

Lessons to learn from all of this? Be smart this Halloween.

The lawyers at Affleck & Barrison are extremely knowledgeable and are experienced at fighting a wide range of assault offences. Call us at 905-404-1947 or contact us online for a free consultation. We offer 24-hour phone service for your convenience, and a variety of payment options, including Legal Aid. Whatever the nature of your offence, we can help.