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Assault and Spousal Assault
Assault in Canada is defined as the intentional application of force to
another person, without their consent. This can include a gesture. If
done in self-defence the act is not an offence, provided the degree of
force used is not unreasonable. This means that even a push or a shove
can be an assault under the Criminal Code. Assault causing bodily harm
and assault with a weapon are much more serious.
A lawyer for someone charged with a minor assault may want to explore
the possibility of a common law or s. 810 peace bond. A peace bond does
not result in a criminal record or a finding of guilt or conviction
unless you breach the peace bond.
Domestic violence is entirely unacceptable in Canada. A person who has
allegedly assaulted his or her spouse can expect to be arrested, held
overnight in jail, and brought to court the following working day in
custody for a bail hearing. The person will find it difficult to obtain
release. He or she will need to provide a stable alternative address,
arrange for a relative (other than the spouse) or friend to be a
surety, and undertake to obey certain rigorous conditions including
non?association with the spouse and non?attendance at his or her former
home. Relatives should immediately get themselves both a criminal and
family law lawyer. The spouse who is the alleged victim should also
immediately obtain counsel.
If both spouses are charged they may each need to find alternate
accommodation, surety, and counsel. Sometimes the spouse who phones the
police ends up being charged themselves, for present or past events.
Before you call 911 please remember that you may also be charged and
your 911 conversation will be recorded and perhaps later used against
you in court.
The police will often request that the alleged victim give them a
video-taped statement under oath in the hours just after the incident.
If the victim later changes his or her story, the video will be used as
part of the Crown's case. The victim is under no obligation to give
such a statement and, in fact, it would be best for him or her to get
legal advice before doing so. If you are a victim, do not be afraid to
ask to call a lawyer before giving any statement to the police. If
police talk about you giving a "KGB statement", ask for independent
legal advice, just like the witnesses received in the case of R. v.
K.G.B..
Once you report something to the police you cannot withdraw it later.
Nor can the victim withdraw or refuse to "press charges". The police
and Crown Attorney make those decisions. It is often a good idea to
attend at a doctor's office or emergency clinic immediately following
the incident so that your injuries (alleged perpetrator or victim) can
be documented. Photographs of injuries may also be helpful.
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