Understanding The Offences
Murder is the most serious criminal offence and if convicted of murder, an accused is liable to a sentence of life imprisonment. An assault case may be more serious if the offence involves assault with a weapon, assault causing bodily harm, or aggravated assault. These charges attract thorough police investigation, rigorous prosecution, and the most punitive penalties of all criminal offences. Rod Gregory can represent you across the full spectrum of murder and assault charges.
Use of Firearms
The Criminal Code defines culpable homicide as causing death by an unlawful act, due to criminal negligence, produced by threats of fear of violence or deception, or, in the case of a child or sick person, willful frightening. By contrast, non-culpable homicide is the killing of another person for reasons that are not criminal, such as by accident or in self-defence.
Section 229 of the Criminal Code refers to murder as the death of a human being where an individual intended to cause death or cause bodily harm that is likely to result in death. Murder is classified as first or second degree. First degree murder involves forethought and the intention to kill; the death is considered “planned and deliberate.” This is not the case with second degree murder.
The penalty for murder is life imprisonment, regardless of whether the verdict is first- or second-degree, although the amount of time served before one is eligible for parole varies. The minimum period of imprisonment for first-degree murder is 25 years and for second-degree murder the minimum is 10 years.
Murder may be reduced to manslaughter under section 232(1) of the Criminal Code when the person who caused the death of another did so in the heat sudden provocation. Provocation refers to a wrongful act or an insult that is sufficient to deprive an ordinary person of self-control. Manslaughter is therefore a type of homicide wherein the accused did not intend to kill.
For a finding of manslaughter, the Crown must prove there was an “objective foreseeability of the risk of bodily harm, which is neither trivial nor transitory, in the contact of a dangerous act,” but there is no need to establish a foreseeability of death. In other words, no premeditated intention needs to exist and instead, the death must occur due to an assault.
For manslaughter, there is no minimum penalty and no minimum period to serve prior to being eligible for parole unless the accused used a firearm in the commission of the offence. If so, the mandatory minimum sentence is 4 years’ imprisonment. From a client’s point of view, the difference in results between a conviction for murder and manslaughter is significant.
There are also significant penalties for attempted murder which requires an intention to kill someone, but they are not ultimately killed as a result of the act.
The Criminal Code establishes three instances in which a person commits assault:
- When without the consent of another, he applies force intentionally to that other person, directly or indirectly;
- By an act or gesture, he attempts or threatens, to apply force to another person, or causes that other person to believe on reasonable grounds that he has the capability to effect his purpose; or
- While openly wearing or carrying a weapon or an imitation weapon, he accosts or impedes another person.
Important to note is that assault may be found even when there is no physical harm or strength exerted on to the victim.
The three most common types of assault charges are: “simple assault”, “assault causing bodily harm” and “aggravated assault.”
“Simple assault” is the application of force from a person’s extremities such as hands, legs or feet. Such charges include fights or conflicts that do not result in serious or permanent injury, such as slapping, pushing, shoving, punching, or threatening behavior.
“Assault causing bodily harm” is a more serious charge that result in serious injury. Bodily harm includes:
- Cuts requiring stitches;
- Broken nose or other bones;
- Permanent damage or injury; or
- Semi-permanent injury requiring significant time to heal.
“Aggravated assault” is stronger form of assault resulting in substantial injury, such as one that is permanent or endangers the life of another. Aggravated assault may include assault with a deadly weapon. For example, if a person stabs another individual and the person suffers from serious injuries, the accused is often charged with aggravated assault.
“Assault with a weapon” refers to an instrument which can inflict bodily harm. Examples of such weapons include a stick, bat, switchblade, knife, gun, a dog ordered to attack a person, or a motor vehicle.
In situations where an accused is found guilty of assault, the type of sentence imposed depends on the degree of harm caused. A “simple assault” charge may not result in jail time, and in exceptional cases, no criminal record.
Defences to Assault Charges
A number of defences to an assault charge may be accepted by the Court as the absence of criminal intention:
- Mistaken belief in consent;
- Self-defence or the protection of others;
- Reflex action, such as in response to a perceived and immediate threat;
- Defence of property (e.g., where one believes another is taking or damaging property or trespassing);
- Prevention of a crime (e.g., when police use force to prevent an armed and dangerous person from firing); or
- Corporal punishment (spanking) of a child, though several exceptions exist. Corporal punishment is permitted only in the course of discipline and not in anger or frustration, not of a child under age two or a mentally challenged child, not of a teenager, not using an object or a slap or blow to the head, and not causing injury.