Practice area: Assault
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Spousal and domestic assault allegations:
The Attorney-General has issued a policy directive to Crown Attorneys to prosecute all domestic and spousal assault allegations if it appears there is a likelihood of successful prosecution. In some cases it may be appropriate to follow this policy but the problem is, is that it is a rigid policy that may fail to address often complex family dynamics.
Typically domestic allegations are of:
- uttering threats or
- criminal harassment
Defending spousal/domestic allegations:
The government policy may be rigid but a criminal lawyer’s approach to defending assault, harassment and threatening allegations in a family context must be flexible to take into account the future needs of the parties and the public interest in preserving family harmony. Consequently a criminal lawyer must assess the merits of the case, the family dynamic and the personalities in order to craft an appropriate solution.
It is essential that your defence be based on a flexible plan that lays the groundwork to deal with unanticipated developments. As a criminal defence lawyer with many years of experience dealing with spousal and domestic assault, threats and harassment allegations, we know how to develop a plan to deal with the charges. In many domestic cases, our clients avoid a criminal record when they follow our advice.
Assault – Criminal Code
Elements of the offence:
The prosecution must prove that the accused:
- Applied force, either directly or indirectly to someone without their consent; or
- Attempted or threatened by act or gesture to apply such force to another person causing that person to reasonably believe the accused had the ability and intention to carry it out; or
- While opening wearing a weapon, either begged or impeded another person.
The first issue the Court must resolve is whether the actions alleged did in fact take place but it is then to the Court to determine whether the person assaulted had the capacity to consent and freely consent to the act with an appreciation of the risks involved. In the case of attempted assaults or threatening by act or gesture, the Court will assess the information available to the complainant to assess whether they had reasonable grounds to believe that the accused would follow through with the act that had been attempted or threatened.
If the Court is not satisfied beyond a reasonable doubt of each and every element of the offence, the accused is entitled to be found not guilty.
The prosecution must prove that the accused knowingly caused the object of the threat, typically the complainant, to receive a threat to:
- Cause death or bodily harm to any person; or
- Damage, destroy or burn property; or
- Hurt or kill their animals, pets or livestock.
The Court must first determine whether the alleged threat was in fact made. The next step is to determine whether the accused knowingly uttered the threat. Finally under this section of the Criminal Code, the threat must be contemplated to have been either to cause the death or bodily harm to any person or damage, destroy or burn their property or to hurt or kill their animals.
The wording of this section creates a defence in that the alleged threat may not be to cause “bodily harm”. In such a case, however, the statement of the accused may constitute a gesture that may be considered an assault.
If the defence raises a reasonable doubt with respect to any elements of the offence, a Court must acquit the accused.