What Are The Potential Defences For Assault With A Weapon?
- Factual Innocence:If the Crown is unable to prove the essential elements of the particular offence beyond a reasonable doubt, they will have failed to discharge their burden, and the accused will be acquitted.
- Accused"™s Belief in Consent: The Crown must be able to prove beyond a reasonable doubt that the complainant did not consent to the assault. A defence to an assault charge may be that the "assault" was a consensual fight (i.e. a fight between players during a hockey game or a consensual bar fight). However, a person cannot consent to an assault where a party intended to cause bodily harm. It will be difficult to raise a consent defence where a weapon is alleged to have been used.
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Self-Defence: Self-defence is commonly invoked in assault cases. One"™s actions may be justified in certain circumstances, such as where one has to protect yourself or someone else. In order to successfully argue self-defence, one must be able to demonstrate that:
- there were reasonable grounds believe that he or others were at risk of acts of force or the threat of force;
- the accused"™s actions were committed for the purpose of defending or protecting themselves or someone else; and
- the act committed was reasonable in the circumstances.
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Defence of Property: A person will not be guilty of an offence if they can demonstrate:
- They have reasonable grounds to believe they are in peaceable possession of property or are acting under the authority of a person who has reasonable grounds to believe they have such possession;
- They believe, on reasonable grounds, that someone has or is about to enter the property without authority to do so, is taking/about to take property, or has/is about to damage or destroy the property;
- The accused"™s actions were for the purpose of preventing that person from entering/taking/damaging/destroying the property; and
- The act committed was reasonable in the circumstances.
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Violation of Charter Rights: Under the Canadian Charter of Rights and Freedoms, individuals are afforded specific rights, including:
- the right against unreasonable search and seizure;
- the right to not be arbitrarily detained;
- the right to be informed promptly of the reasons for arrest;
- the right to retain and instruct counsel without delay; and
- the right to be tried within a reasonable time.
A successful Charter challenge may also result in a stay of proceedings, or evidence from your case being excluded.
