Anthony De Marco
Toronto Criminal Lawyer

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Criminal Negligence Causing Death or Bodily Harm, Aggravated Assault and Other Assault Offences Lawyer in Toronto

Mississauga, Brampton, and Newmarket Criminal Negligence Causing Death or Bodily Harm, Aggravated Assault and Other Assault Offences Lawyer

Commonly Asked Questions

1. What is criminal negligence?

2. What is the sentence for criminal negligence causing death or bodily harm?

3. What is aggravated assault?

4. What is the sentence for aggravated assault?

5. What is assault with a weapon and assault causing bodily harm?

6. What is the sentence for assault with a weapon or assault causing bodily harm?

7. What are the possible defences for criminal negligence and aggravated assault?

8. Do assault charges always result in a trial?

9. What are my Charter rights?

10. Can the Charter help my defence?

11. Can I get assistance from Legal Aid Ontario for my case?

Criminal negligence or assault charges can arise from many different types of situations. No matter what the circumstances, it is important to seek out reputable counsel to defend your rights, freedom and reputation.

As a senior criminal defence lawyer, I have the knowledge and the experience to fully understand the charges you are facing. With more than 35 years of experience, I know what is at stake and I know what is needed to defend anyone charged with criminal negligence, aggravated assault or other assault offences.

Call Defence Lawyer Anthony De Marco for a Free Consultation

Contact my Toronto, Ontario, office today to discuss your criminal negligence, aggravated assault or assault case. I offer a free 30-minute consultation. For your convenience, I offer reasonable payment plans. I also accept Legal Aid in some cases. You can reach me by phone at 416-651-2299 or toll free 1-888-399-3164 or by e-mail.

Criminal Negligence Causing Death or Bodily Harm and Assault Charges

Whether you are charged with criminal negligence causing death or bodily harm, aggravated assault, common assault or any other violent offence, I will conduct a thorough review of the evidence against you. I will provide you with an honest and realistic assessment of your case and help you understand what to expect throughout the process.

I will help you explore any legal defence that can be used in your case. I will also see if the police were thorough in their investigation and if the witness statements that have been gathered are credible, reliable and are from reputable witnesses.

If your case requires a jury trial, I have the necessary experience, advocacy skills and confidence to convincingly argue your case to the jury.

What is Criminal Negligence?

Sections 219 and 220 of the Criminal Code of Canada provide as follows:

Sections 219 (1) Every one is criminally negligent who

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do,

shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, duty means a duty imposed by law.

Causing death by criminal negligence

220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

(b) in any other case, to imprisonment for life.

Causing bodily harm by criminal negligence

221 Every person who by criminal negligence causes bodily harm to another person is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or

(b) an offence punishable on summary conviction.

Criminal negligence causing death is also a form of culpable homicide.

For purposes of subsection 219(1)(b), a “duty” may be set out in the Criminal Code of Canada, or other statute, or the duty may arise at common law. Breach of such a duty imposed by law can become the basis of a criminal negligence charge.

Criminal negligence must be distinguished from civil negligence which is a level of negligence that would establish liability, for example, in a civil action arising from a motor vehicle accident where negligence is proven on a balance of probabilities. Criminal negligence must be proven beyond a reasonable doubt. Criminal negligence occurs in circumstances where the accused either recognized and ran an obvious and serious risk to the lives and safety of others or, alternatively, gave no thought to the risk. Criminal negligence requires a level of moral blameworthiness which is at the high end of a continuum of moral blameworthiness. Criminal negligence requires proof beyond a reasonable doubt of a wanton or reckless disregard for the life or safety of others. Whether specific conduct should be categorized as criminal negligence is one of the most difficult and uncertain areas in the criminal law.

More information regarding charges of criminal negligence causing death or bodily harm arising from the operation of a motor vehicle is available here.

Criminal Negligence Causing Death is Culpable Homicide

Section 222 of the Criminal Code of Canada sets out that a person commits homicide when, directly or indirectly, by any means, he causes the death of a human being. Homicide is either culpable or not culpable. Homicide that is not culpable is not a criminal offence. Culpable homicide is murder or manslaughter or infanticide.

Subsection 222(5) of the Criminal Code of Canada provides as follows:

222(5) A person commits culpable homicide when he causes the death of a human being,

(a) by means of an unlawful act;

(b) by criminal negligence;

(c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or

(d) by wilfully frightening that human being, in the case of a child or sick person.

A person may therefore commit culpable homicide if the person causes the death of a human being by criminal negligence. The culpable homicide may be classified as manslaughter. Both criminal negligence causing death and manslaughter are punishable by a maximum penalty of imprisonment for life. If a firearm is used in the commission of criminal negligence or manslaughter, a minimum punishment of imprisonment for a term of 4 years will apply.

Whether a person is charged with criminal negligence causing death or with manslaughter is generally a matter of prosecutorial discretion. A person may be charged with either criminal negligence causing death or manslaughter, or both, and be found guilty of both offences, however, the accused can only be pnished for one of the offences.

What is Aggravated Assault?

Aggravated assault is an extremely serious type of assault. A person charged with this offence may elect to have a preliminary inquiry in the Ontario Court of Justice and then a trial in the Superior Court of Justice before a Court composed of a Judge sitting with a jury.

Section 268 of the Criminal Code reads as follows:

268(1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.

(2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

(3) For greater certainty, in this section, “wounds” or “maims” includes to excise, infibulate or mutilate, in whole or in part, the labia majora, labia minora or clitoris of a person, except where

(a) a surgical procedure is performed, by a person duly qualified by provincial law to practise medicine, for the benefit of the physical health of the person or for the purpose of that person having normal reproductive functions or normal sexual appearance or function; or

(b) the person is at least eighteen years of age and there is no resulting bodily harm.

(4) For the purposes of this section and section 265, no consent to the excision, infibulation or mutilation, in whole or in part, of the labia majora, labia minora or clitoris of a person is valid, except in the cases described in paragraphs (3)(a) and (b).

What is Common Assault?

Section 265(1) of the Criminal Code of Canada reads as follows:

265(1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

What is Assault with a Weapon or Causing Bodily Harm

The use of a weapon in committing an assault or an assault resulting in bodily harm will attract higher penalties. Section 267 of the Criminal Code of Canada reads as follows:

267 Every person is guilty of an Indictable offence and liable to imprisonment for a terms of not more than 10 years or is guilty of an offence punishable on summary conviction who, in committing an assault,

(a) carries, uses or threatens to use a weapon or an imitation thereof,

(b)causes bodily harm to the complainant, or

(c)chokes, suffocates or strangles the complainant.

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Unlawfully Causing Bodily Harm

Section 269 of the Criminal Code of Canada reads as follows:

269 Every one who unlawfully causes bodily harm to any person is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or

(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Do Assault Charges Always Result in a Trial?

If the allegations are not very serious, sometimes the charges can be disposed of by the accused agreeing to participate in remedial programs, such as anger management and addiction counselling, and by agreeing to sign a peace bond stating that the accused promises to keep the peace and be of good behaviour. The accused may also then be allowed to have contact and to cohabit with the complainant with the complainant’s prior written revocable consent. Such a resolution is not automatic; it is the Crown’s decision, and careful negotiation is essential. I have been successful in these negotiations on many occasions for my clients.

The Defence of de minimis non curat lex

Intentionally applying any amount of force to another person is technically a common assault. If the force applied is trivial, or the impact of the force is negligible, it may be possible to advance the common law defence of de minimis non curat lex. This phrase translates to “the law is not concerned with trifles.” The defence argument here is that the assault was so trivial that the court should simply dismiss the charge. There is legal precedent, at least from the lower courts in Canada, recognizing this defence. I argued this defence before the Court of Appeal for Ontario in a case involving a minor assault in which my client was acquitted at trial but the Crown appealed. Unfortunately, the Court of Appeal declined to rule on whether the defence exists in Canadian common law. Instead, the Court of Appeal ruled that even if the defence does exist, it was not available to my client on the facts in my client’s case. The Court did, however, grant my client an absolute discharge.

Self-Defence

A much more common defence in assault cases is self-defence set out in Section 34 of the Criminal Code of Canada which reads as follows:

34 (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

DNA and Other Forensic Evidence

Forensic evidence, such as DNA evidence, is just one type of evidence that the Crown can try to introduce against a person accused of a crime. The defence can challenge the admissibility of forensic evidence on the basis of relevance, prejudice or that there is a lack of a sufficient scientific foundation to make the evidence reliable and worthy of being admitted, in other words, the forensic evidence is inadmissible because it is based on “junk science”.

Over the years, there have been several types of forensic evidence that have been rejected by the courts in the United States and, to a lesser extent, Canada, including voice print identification, comparative bullet lead analysis and several indicators of arson dependent on visual cues.

Likewise, there are various other types of forensic evidence which are possibly unreliable, such as microscopic hair comparison, and “pattern comparison” evidence such as bite marks, tire marks and handwriting.

Even in cases where the forensic evidence is ruled admissible, the defence can still try to weaken the impact of the evidence by arguing, for example, that the results of the forensic testing were the subject of “motivated perception”. In other words, the scientist who did the testing interpreted the results so as to support his or her expectations or the expectations of the police or Crown prosecutors. The defence can argue, or call evidence to show, that the forensic examiner should have first tested the evidence blindly without knowing anything about the case in order to avoid a subconscious bias. Studies have shown that even the opinion of fingerprint analysts can be affected by the analysts’ preconceived notions about the case. Also, there is always a risk of a false positive. Moreover, if the laboratory that completed the testing, such as the Centre of Forensic Sciences, is known to have made errors on occasion in the past, the defence can argue that the error rates should also be entered in evidence.

In appropriate cases, and where funds permit, the evidence can be re-tested by an independent laboratory for verification.

A good defence lawyer should know the weaknesses of specific scientific techniques or seek out an appropriate defence consulting expert to learn about and present evidence regarding those weaknesses.

Pre-Trial Charter Applications

Often, the best defence to a criminal charge involves a challenge to the investigation that resulted in the arrest of the accused or the collection of evidence against the accused. The police are not allowed to breach the rights that are guaranteed to the accused by the Canadian Charter of Rights and Freedoms.

I will investigate any possible Charter breaches by carefully reviewing the Crown disclosure documents, including the documents used by the police to obtain search warrants for the home, car or other property of the accused, and the documents used by the police to obtain production orders, such as for cell phone records and wiretap authorizations.

If I detect any violation of the Charter rights of the accused or violation of acceptable investigative procedures established by the courts, I will proceed with an application asking for the exclusion of evidence from the trial of the accused obtained illegally by the police, including the statements of the accused and other evidence seized during the investigation.

I have an established reputation for success in pre-trial applications. Winning a Charter application will result in the exclusion of evidence if the court determines that not excluding the evidence will bring the administration of justice into disrepute. The exclusion of evidence often results in a finding of not guilty if the Crown’s remaining evidence is insufficient to prove that the accused committed the offence beyond a reasonable doubt.

I have the necessary experience, research skills, writing skills, and advocacy skills to prepare and effectively argue pre-trial Charter applications. The value of legal writing skills cannot be overstated since proceeding with pre-trial Charter applications will require the preparation of several documents including a Notice of Application, an Affidavit, and a Factum setting out the relevant facts and summarizing the relevant case law.

Electing to Have a Preliminary Inquiry

In cases in which a Defendant is exposed to a possible period of 14 years or more in jail, the Defendant will have the right to proceed with a preliminary inquiry in the Ontario Court of Justice and then a trial in the Superior Court of Justice before a court composed of a Judge sitting with a jury or without a jury. In the past, this level of court was referred to as “High Court”.

The completion of a preliminary inquiry is not mandatory. The Defendant has the right to waive the preliminary inquiry and to proceed directly to trial in either the Ontario Court of Justice or the Superior Court of Justice. If the trial is to be completed in the Superior Court of Justice, the waiver of the preliminary inquiry will require the consent of the Crown.

At a preliminary inquiry, the Crown is required to call some evidence upon which a properly instructed jury, acting reasonably, may return a verdict of guilt. This is an easy test for the Crown to meet in the vast majority of cases. Accordingly, it is relatively rare for someone who proceeds with a preliminary inquiry to be discharged with respect to all of the charges which he or she is facing. The real value in having a preliminary inquiry is not in the hope of being entirely discharged, thereby bringing the entire criminal proceedings to an end, but in being able to better prepare the case for trial. The defence lawyer will have an opportunity to cross-examine and test the evidence of the primary Crown witnesses. An experienced and skilled defence lawyer can discover the strengths and weaknesses of the Crown witnesses and commence building an effective defence strategy. A preliminary inquiry is especially valuable for the defence in cases involving young, infirm, unreliable or unsavory Crown witnesses.

Call Defence Lawyer Anthony De Marco for a Free Consultation

Contact my Toronto, Ontario, office today to discuss your criminal negligence, aggravated assault or assault case. I offer a free 30-minute consultation. For your convenience, I offer reasonable payment plans. I also accept Legal Aid in some cases. You can reach me by phone at 416-651-2299 or toll free 1-888-399-3164 or by e-mail.