Assault

Assault 2020-10-08T19:59:54+00:00

Your Guide to Assault Charges by Assault Lawyers in Kelowna

What is Assault?

Assault covers a wide variety of violent offences. A common assault is the most basic, with the least severe punishments of all assault convictions. Penalties become increasingly severe as the circumstances of the offence become more violent or have more significant consequences. Other forms of assault are:

Assault is not uncommon in British Columbia. According to Statistics Canada, almost 70% of victims of police-reported crime in 2016 were victims of assault, making it the most common police-reported offence among both male and female complainants.

The relevant provision for assault in the Criminal Code of Canada is:

Kelowna Assault Lawyers

By far the most common way to be charged with assault is through the intentional application of force to a person without their consent. This can range from the act of grabbing someone to much more serious actions, such as kicks and punches.  Although it is less common, don’t forget that even gesturing to hit someone or confronting someone while carrying a weapon can constitute an assault.

Assault charges commonly arise out of domestic situations. If your assault charge involves a past or present romantic partner or a family member, please see our Domestic Violence page.

Investigation of Assault Charges in Kelowna

An investigation of an assault allegation in Kelowna is typically initiated by the alleged victim (or relative or witness). They contact the local Kelowna RCMP and report it. The police will request a written statement from the complainant and any witnesses, then they will launch an investigation.

Because assault is a violent offence, it requires a thorough police investigation. Police will typically interview all witnesses to the offence, review surveillance videos, seize any weapons, photograph the scene, and obtain medical documents to prove the type and extent of the alleged victim’s injuries.

After the police have gathered their evidence, they will arrest you if they believe you are the perpetrator. If you are not present at the scene, police will track you down or issue a warrant for your arrest.

Even if a complainant makes an allegation of assault that they later withdraw, it’s up to the Crown Prosecutor to decide whether to pursue the charges against you. The complainant can be subpoenaed to appear in court, even against their wishes.

After you have been charged, police will provide a package with all the evidence they collected, known as the “disclosure package,” to the Crown Prosecutor. You will have the right to access this disclosure package to see the evidence against you. Once you retain one of our lawyers, we will assist you in obtaining the disclosure package, and we will review it with you to assess the strengths and weaknesses of the Crown’s case, as well as any legal defences that may be available to you.

Bail Process and Conditions for Assault Charges in Kelowna

How do I get myself or a loved one out on bail for assault charges in Kelowna?

For most common assaults, it is not uncommon for police to release you at the scene on a release order. Police will provide you with a Promise to Appear document outlining your charges, and any appearances you must make. This document may also include conditions that you are required to follow while on release.

However, a formal bail hearing may be required to secure your release, particularly if you have a criminal record, or if the allegations are more serious (such as arising out of a domestic situation).

The bail hearing must be held within 24 hours, a period that starts from the moment of arrest or detention rather than the time when you are brought to the district office or Courthouse.

On a weekday, you will be transferred from the district office to the Kelowna Courthouse for your bail hearing. The address of the Courthouse is as follows:

Kelowna Courthouse
1355 Water Street
Kelowna BC V1Y 9R3
(250) 470-6900

If you are arrested after approximately 3 p.m., you will be held at the detachment until the following morning, at which time you will be transported to the Courthouse for your bail hearing. Your hearing will be conducted in front of a Provincial Court Judge.

If you are arrested on Friday after approximately 3 p.m., or if you are arrested on a weekend, your bail hearing will be conducted at the detachment via telephone with a Justice of the Peace from the Justice Centre.

Loved ones are not able to contact you while you are detained. The police will not release any information to friends or family due to privacy laws. Your lawyer is the only person allowed to contact you. Once the police have verified your lawyer’s details, they will pass on information about your whereabouts, if requested.

Because of these difficulties, while you are held in custody, it is best to appoint a competent defence lawyer as soon as possible to manage the legal processes and communicate with loved ones. After an arrest, the police must provide you with the opportunity to call a lawyer in private and, if that happens, stop questioning you.

Once you retain one of our experienced criminal defence lawyers, we will begin working to secure your release on bail. We will immediately do the following:

  1. Call into the district office where you are being held, or the Kelowna Courthouse if you have been transported, and speak to you.
  2. Contact the Prosecutor assigned to the bail hearing to start negotiating your release.
  3. Order and secure a copy of the police information package that details the allegations against you in advance of the bail hearing. This allows the lawyer to make meaningful representations to the court about why you should be released on bail.
  4. Conduct either an in-person or teleconference bail hearing to secure your release.

When you attend your bail hearing, the Judge will consider:

  • Is detention necessary to secure your attendance in court?
  • Is detention necessary to protect the public from a substantial risk of re-offence?
  • Is detention necessary in all the circumstances to maintain confidence in the administration of justice?

Although it is unlikely that you will be denied bail for this type of charge, tight restrictions may nevertheless be applied to your release.

Rest assured, we will work to not only secure your release but also to ensure the least restrictive set of bail conditions (including the minimum cash deposit).

In order for our lawyers to secure less stringent conditions, the Judge will need to be satisfied that you will attend court as required and that you pose no significant risk of harm to the public. This may sometimes be difficult in assault cases, but not impossible.

Our lawyers are often successful at persuading the Prosecutor in charge of bail to let our clients out. If we can’t convince the Crown, we can conduct a formal bail hearing and work to convince the Court. Even if you are ultimately detained, we can appeal that decision on very short notice through a bail review, which is conducted at the Supreme Court of British Columbia

Where can I pay for bail for assault charges in Kelowna?

If you or a loved one are charged with assault in Kelowna and granted bail, you may be required to provide a cash deposit to secure release. The cash deposit can be paid at any bail hearing office (courthouse) in British Columbia. If you live in Vancouver, you can pay bail there for someone detained in Kelowna.

The Kelowna court registry is open from 8:30 – 4:30, Monday to Friday. The contact details of the registry office at the Kelowna Courthouse are as follows:

Kelowna Courthouse
1355 Water Street
Kelowna BC V1Y 9R3
(250) 470-6900

To pay your own bail, you can make a payment after your hearing, assuming you have sufficient funds with you to do so.

How do I change my release conditions for assault charges in Kelowna?

Release on bail with assault charges will almost always require a surety, cash, or no-cash deposit. Furthermore, you can expect tight restrictions, including conditions to refrain from:

  • Interacting with the alleged victim,
  • Attending the alleged victim’s home or place of work,
  • Staying out beyond a certain time (i.e. curfew),
  • Breaking any laws,
  • Using drugs or alcohol,
  • Possessing weapons,
  • Visiting certain places, and/or
  • Travelling.

Some of these conditions can prove to be difficult, especially where an alleged victim or witness is a family member of yours. If you share a home with the alleged victim, you are unlikely to be allowed to return home until the matter is addressed again in court.  Even if you are paying the rent, are on the lease, or own the home outright. A competent defence lawyer will address this challenge immediately.

The Judge may also impose some additional conditions such as:

  • Residing where approved,
  • Reporting to probation,
  • Attending counselling, and/or
  • Maintaining or seeking employment.

A variety of factors will be considered when determining your precise restrictions, including:

  • Your criminal history,
  • Your physical and mental condition,
  • Your history of drug/alcohol usage,
  • The nature of the alleged assault,
  • The likelihood that you will flee,
  • Whether you have stable employment,
  • Whether you have stable living arrangements, and
  • Whether you have ties to the community.

If you have already been released, at least for the short term, it is critical that you make arrangements to abide by your conditions until they can be changed. Breaching the terms of your release can result in further charges or a revocation of your bail, as well as a forfeiture of any cash paid to secure your release. It is important to take these conditions seriously.

Once the matter is in court, we can work with the Crown Prosecutor to alter your conditions. This includes either adding exceptions to some of the conditions or eliminating them altogether.

If your court date is far away and you cannot wait until then, we can arrange to have the matter dealt with sooner. Our first priority is always to stabilize your release conditions. That way, you will not feel pressured to plead guilty because of the restrictive terms of your release. Once the conditions are manageable and minimally intrusive to your daily routine, we can focus 100% of our attention on defending the case.

Kelowna Public Mischief Lawyers

Penalties for Assault Charges in Kelowna

Common assault is a hybrid offence, which means that the Crown can elect to proceed by way of indictment or by summary conviction. This decision is made based on the circumstances of your case and will impact the severity of punishment that you are handed. Indictment is the more severe of the two.

For a common assault conviction, you can expect:

  • Indictment: Up to five years’ imprisonment; or
  • Summary: Up to two years’ less a day imprisonment and/or a $5,000 fine.

In cases of common assault charges, the likelihood of going to jail if convicted is relatively low. The risk of jail time increases dramatically, however, where the assault occurred in a domestic situation, or where you have prior convictions.

In addition to the immediate penalties resulting from a conviction for assault, it can also have negative impacts on your future. You may have trouble securing employment in the field of your choice. This is especially the case for roles that require interacting with children, the elderly, or other vulnerable sectors of society. The lifelong criminal record that results from a conviction can also hinder immigration and travel, and can cause child custody issues.

Therefore, even if you intend on accepting responsibility for this type of offence, it is worthwhile to explore your options and consider all the possible penalties. Often, good representation can result in no criminal record. Furthermore, a community-based sentence may be obtained even where the Crown is seeking jail time.

Rest assured, our lawyers will work hard to defend you so that you are not saddled with the consequences of a criminal conviction for assault. In fact, we can canvass a range of sentencing options with the Prosecutors that will either leave you with no criminal record or impose minimal restrictions on your liberty after sentencing. To learn more about potential non-criminal resolutions, please visit our Resolutions page, or read our FAQ on resolutions and other sentencing options.

Defending Assault Charges in Kelowna

What are the best defences to assault charges in Kelowna?

With assault charges, the defences that may be available to you depend on the facts of your case. In general, the best defences are:

  • Factual Innocence: This is usually the strongest defence because the facts and the evidence do not support you being there, applying force to the complainant, or other basic elements of the offence. This could include:

Identity: In some circumstances where the offence was not recorded by surveillance footage, or the footage is poor quality, you may be able to raise an identity defence. For example, authorities could have made a mistake in identifying you as the perpetrator based on the poor quality of the footage. In order to effectively raise this defence, you may need corroborative evidence, such as an alibi to where you were at the time of the offence.

  • No mens rea/actus reus: If you can challenge the mental or physical elements of the assault, then you cannot be convicted. For example, if you had consent to apply force, this could challenge the physical element of the offence.
  • Self-defence: If you committed the assault in order to defend yourself against an attacker, this will challenge the conviction. It’s important to note, however, that you must prove that your actions were proportional to the attack you were defending yourself against.
  • Defending Someone Else: Reasonable force or the threat of force can also be used to defend someone else against an unlawful attack, provided there was no intent to cause death or grievous bodily harm.
  • Defending Property: Reasonable force or the threat of force can also be used to defend property, though this may be a weaker defence in many situations.
  • Accident: An accidental assault should not lead to a criminal conviction if it was unforeseeable (which you have to prove).
  • Consent to Fight: If both parties agreed to enter into a minor confrontation, neither can be convicted of assault. For example, if both parties consent to a fistfight to settle a grievance. Consent cannot be granted, however, if it is obtained by force, threats, fear, fraud, or the exercise of authority. It is important to note as well that you cannot consent to the infliction of intentional bodily harm.
  • Violation of Constitutional Rights: The Canadian Charter of Rights and Freedoms sets out your rights before and after your arrest. If the police fail to abide by these rights, it could aid in your defence.

While the Crown must prove the elements of the offence beyond a reasonable doubt, you may bear some responsibility in raising certain defences at trial. The burden of proof remains high for this kind of prosecution. This means that there are many successful defence strategies that our experienced defence lawyers can take, depending on the circumstances of your case.

The availability and strength of any defence depends entirely on the specific facts of your case. Our lawyers have significant experience assessing the availability and strengths of various potential defences in assault cases, as well as presenting any and all available defences to the Court at trial. Even if you believe that you will be found guilty, it is important that you obtain a legal opinion about defences that may be available to you.

How can I help defend assault charges in Kelowna?

If you have been charged with assault in Kelowna, the following can help your lawyer build a strong defence:

  • Provide your lawyer with a statement about what happened;
  • Collect and maintain all documents and records about the event;
  • Gather a list of witnesses that may support your version of events; and
  • Log any relevant texts, emails, phone calls or photographic evidence.

As soon as you are released on bail, you should start to gather any information that may be of use to your lawyer. What information is relevant will depend on the facts in your case. If you are uncertain what information to collect, you should contact one of our lawyers immediately to create a plan of action for gathering information.

If you are truly proactive about the matter, consider doing the following:

  • Secure proof of employment;
  • Secure reference letters;
  • Enroll in counselling (anger management/substance abuse/parenting);
  • Secure a record of prescriptions; and
  • Secure a record of any mental health conditions you suffer from.

These steps can be very helpful for building an effective defence (or convincing the Prosecutor to drop the charges altogether).

What can a lawyer do to help me defend against assault charges in Kelowna?

As we start preparing your defence by examining police actions and the evidence against you, there are certain defence strategies that can be used to aid your cause, including:

  • Assembling documents, photographs, texts, etc. that contradict the allegation and support your defence;
  • Gathering evidence from witnesses that support your version of events;
  • Identifying mistakes in the actions of the police, such as Charter breaches;
  • Uncovering administrative/systemic errors, such as “Jordan delay,” non-disclosure, lost or destroyed evidence, etc.; and
  • Finding weaknesses or “holes” in the Crown’s case that may make it difficult or Impossible for them to establish the elements of the offence.

What’s Next?

Most of the information above relates to simple assault cases, cases, which can still be complex and fact specific. The circumstances of your case will likely further complicate the matter.

We have tried our best to provide a general outline of what you can expect if you find yourself in this situation, but this is just the tip of the iceberg.

To learn more about how we can help, please contact our team of Assault Lawyers. We will conduct a thorough review of your situation and tailor a precise strategy that targets your successful defence.

Assault FAQs

  1. What is assault?
  2. The victim of the assault changed their mind and does not want to press charges. Can they have the charges dropped?
  3. What are the best defences to an assault charge?
  4. How can I get my assault charges dropped?

See More

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