Assault charge: All questions answered and what you should do
How serious is a common assault charge?
An assault is an offence that is punishable by up to 5 years of jail (Section 266 of the Criminal Code of Canada). So it is certainly not a small deal. That being said, good news is that an assault is a charge that has no minimum punishment prescribed by law. It means that, unlike in a case of an illegal firearm charges, child porn or DUIs in which the judge’s hands are tied, when you are properly represented by an experienced lawyer you may receive a “slap on the wrist” even if you are found guilty after a trial or after a plea.
What is simple assault?
An assault means an application of force (such as a slap, push or punch) without consent, a gesture threatening the same, or approaching someone while openly carrying a weapon. The latter scenario may also lead to a so-called “weapon dangerous” charge under section 88(1) of the Criminal Code, which is punishable by up to 10 years of jail.
Can the police let someone off with just a fine or a warning for assault?
A fine is not an option open to police or to the courts. A warning is a possibility if your altercation is very minor and it is not domestic. A domestic assault is when the altercation happened between romantic partners. Police has virtually no discretion when dealing with a domestic situation and they would almost always lay a charge when one of the partners complains of having been assaulted or threatened.
What happens once I am taken to the police station?
Normally the police would access whether you are releasable from the station or whether you should be held for a bail hearing. For example, if the allegations are serious or if you tell police that you have no place to live except where you used to live with the complainant, you will likely be held for a bail hearing.
What happens if I get charged with simple assault?
You will be released either from the station or from the court and given a future court date. You will not be allowed to have contact with the complainant or be anywhere near where the complainant lives, works or happens to be. Now is the time to retain a lawyer who will help you defend your charge,
How do I get the police to drop an assault charge?
After the charge is laid, it is out of the police’s hands. The Crown Attorney’s office will be prosecuting it, and they also have the discretion to ask the judge to withdraw the charge. There are several ways to achieve this result. Often the Crown would want you to enter into a peace bond as a precondition to a withdrawal. Most of the time a peace bond is a very good resolution, although in some cases e.g. involving child custody you may want to avoid it. Speak to your lawyer about how to achieve the best result.
How do I get bail?
You are presumed innocent and are entitled to a reasonable bail. In many cases getting bail is not difficult and you may get bail without lawyer’s help. In more serious cases you would be very well-advised not to begin your bail hearing until you retained a lawyer.
How much does it cost to get out on bail?
More often than not the difficulty with bail is not the amount but rather the plan of supervision. However, in some cases, the amount may become significant. When the allegations involve drug importation or trafficking, or when you are considered a flight risk and the charge carries a probability of a long jail sentence bail amount can reach six figures and more.
Should I talk to the police about the incident? (without a lawyer)
You absolutely should not discuss the incident with the police. They may seem nice and polite, but you should be able to see right through that. They are not your friends. They are trained to gather evidence against you, and this is what they will do if you choose to speak to them.
The police always tell the truth, right? The police say they have evidence against me. Should I talk to them?
The police are allowed to lie to you, subject to certain exceptions. They routinely lie about things like video camera surveillance that captured the offence, DNA evidence or fingerprints. This is done simply to prompt you to make admissions and incriminate yourself. Do not think that you can outsmart them by answering questions. This is their game, and your only way to win it is not to play it. Complete silence is appropriate, as is a request to speak to a lawyer. Do not worry about looking guilty. The judge will never hear that you refused to speak to police, because your right to silence is your constitutional right and your silence cannot be used against you in any shape or form.
The police say I was carrying a weapon… it was a beer bottle. What now?
Do not give a statement, whatever they say. Silence is golden. By speaking, you will only make your situation worse.
Why do I need to have a lawyer present when I am talking to the police?
This is a common misconception. You must have watched too many US shows on TV. In Canada, the lawyer will not be present when you speak to the police. You will speak with a lawyer before the police speaks to you. Your lawyer will tell you to not give a statement. Your job is to keep your mouth shut. If you are not strong enough to do that, you will likely hurt your case. It is that simple.
Will I go to jail for an assault charge?
Usually, a simple assault would not carry a jail sentence, but assault causing injury very easily can result in a jail sentence.
How long can the police hold me?
Usually, you would spend a few hours in custody. The police is supposed to release you as soon as practicable, and not to overhold you. If you are held for a bail hearing, you are supposed to be brought before court within 24 hours from the time of your arrest. Bail courts and jails operate without holidays, and you can be released on a Saturday or on a Sunday.
Who decides if I get bail?
The police is deciding whether to release you from the station or whether to hold you for a bail hearing. If you are held for bail, the Crown attorney will look at your case and take a position. For example, they may agree to release you unconditionally, or under the supervision of your so-called sureties. You may be placed on a house arrest. It all depends on the seriousness of your charges and your personal situation.
What does “flight risk” mean?
Flight risk means that it may make sense to you to leave the jurisdiction and not show up in court to answer to your charge. For example, if you are a recent immigrant and have no roots in the community, and you are facing a cocaine trafficking charges that may lead to a long jail time, you may have money and desire to leave Ontario or Canada and not come back. In that case the amount of your bail may be very high.
Will I have to face trial?
The majority of criminal cases do not go to trial. Trials are expensive and risky, and oftentimes clients ask their assault lawyer to negotiate the best deal possible and to avoid trial. At the same time, there are categories of offences that often go to trial. Sex assaults are a good example. If you are accused of a sex assault, you may be looking at jail time and at having to register as a sex offender, so there is no good deal to be made. Meanwhile a sex assault is a charge that you may well be able to defend successfully with a sexual assault lawyer, in which case you would have to face a trial to achieve that result.