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Assault

Edmonton Criminal Lawyer Ziv > Assault
23 September
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Past Communications about Present Intention (a thought experiment)

Posted by Andrew
in Assault, Intent

Article by Rory Ziv

Imagine a situation where one person texts another person “meet me at the school playground at 2 pm tomorrow if you want to fight?”. Assume the fight takes place the following day, at the agreed upon location and time, and one person is charged with assaulting the other. 

It should be apparent from this fact pattern that a lawyer would want to explore why a person was charged, since ostensibly, it appears as there was evidence that the fight was consensual.    

Remember, an assault is a non-consensual touching. Ordinarily, consensual fights would not be a crime (there are exceptions like bodily harm intended and caused or actions outside the scope of the agreed upon conduct).

In the realm of the law of assault the text message “meet me at the school playground …” would be admissible evidence as some evidence showing consent. It may not be determinative depending on the facts, but it would certainly be relevant especially if the accused person was suggesting the fight was consensual. 

Enter the topic of sexual assault, which is also a non-consensual touching, the difference is that it is of a sexual nature. Change the text message to the following: “meet me in my bedroom tomorrow night at 8 pm I want to have sex with you”. 

Some arguments, supported by some cases, have taken the position that this type of text message is not relevant because consent must be given at the time of the event in issue and past agreements about consent cannot be relevant to whether there was actual consent at the relevant time. 

In my opinion this type of reasoning is flawed because it bypasses a threshold relevance issue. Some thinkers don’t consider the possibility that some past communications could show proof of present intention. While it is not direct evidence, it is circumstantial evidence.  

A person can agree with having sex in the future, but that sex must still be agreed upon at the relevant time for it to be consensual. That doesn’t make the past communication –irrelevant—the past communication is still a piece of evidence that can be used by the accused person, to show along with other evidence, that there was consent at the relevant time. 

There has in my opinion been a fundamental breakdown or break up of the fundamental building blocks of what is “relevancy” and as a result I am particularly concerned that there are going to be wrongful convictions that flow.   Two recent appeal decisions arrive at different conclusions of a very basic and fundamental issue. See the following cases: R. v. Reimer 2024 ONCA 519 but see R. v. MacMillan 2024 ONCA 115. 

25 May
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Capacity to Consent

Posted by Rory
in Assault, consent, sexual assault

The Cab Driver – Incapacity to Consent

This is a follow-up to a blog I posted concerning a case where a cab driver was found with a highly intoxicated patron who essentially had her pants down when a police officer stumbled upon them parked (click here for old blog).

At the trial, the trial judge felt that he was left with a factual vacuum so that he could not decide whether the complainant consented to sexual activity at the crucial time. His comment “that a drunk can consent” was the subject of a significant amount of media attention and scrutiny.

Ultimately the Court of Appeal, R. v. Al-Rawi 2018 NSCA 10, stated that this statement of the law was correct but that the trial judge failed to consider s a significant amount of circumstantial evidence in the case about the complainant’s inability to consent. The trial judge’s judgment that “the Crown had no evidence to present on the issue of consent prior to Constable Thibault arriving on scene” was held wrong. There was evidence on the issue of consent or lack thereof.

The Court concluded that the test for incapacity, remembering that, it is a codified provision of the Criminal Code that “no consent is obtained [if] the complainant is incapable of consenting to the activity” is:

(1)    A person must understand the nature of the specific sexual act in question;

(2)    A person must understand that he or she has a choice as to whether to participate;

(3)    Know the identity of the person they are engaging in the sexual activity with;

In this case there was evidence that she was incapable of consenting at the relevant time including losing consciousness after the police arrived, having a blood alcohol level in excess of 240 mg, urine soaked pants, being found in the opposite direction of her home and no memory of her time in the taxi. A complete list is found at para 94 of the judgment.

29 September
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Proving Lack of Consent

Posted by Rory
in Assault, consent

The Cab Driver – Failing to Prove Lack of Consent

A controversial case is before an appeal court in Nova Scotia.  When reading the facts please take into account this proposition.

The Crown have to prove beyond a reasonable doubt that the complainant did not consent.

Here are the facts:

On the evening of May 22, 2015, a young woman went to a bar. Her last memory at the bar was drinking two tequila shots and a vodka-and-cranberry mixed drink. Her next memory was speaking to a police officer. She does not recall if this conversation happened in an ambulance or at the hospital.

Other evidence (none of which the complainant remembered) showed that she was prevented from re-entering the bar at one point because of her level of intoxication, she also had a fight with her best friend, sent several text messages to her friends (and therefore was able to carry out a conversation) and hailed a cab.

A police officer came upon the parked cab she was in naked from her breasts down and the cab driver had her urine soaked underwear and pants in his hands.

Based on her alcohol level (220 mg) an expert said her short term and long-term memory would be affected but she would still be able to interact with others.

The trial judge found the cab driver not guilty of sexual assault. His reasoning was that a drunk person can consent to sexual activity and although she may not remember today what happened at the relevant moment he had no other evidence to help him determine what did happen at the relevant time. “But I do not know whether [cab driver] removed her pants at her consent, at her request, with her consent, without her consent, I don’t know.”

Analysis

Drunkenness is not the same as incapacity and a drunken consent is still a valid consent (see R. v Jensen (1996) 106 CCC3d 430).

It is very frustrating that there is a factual gap in this case and because alcohol can make people “say and do strange things” was implausible for the complainant to have stated or somehow consented to the sexual activity in question?  Let’s try to imagine how that would have transpired.

She hails a cab and immediately says to the cab driver “park the car, I’m horny, I want to have sex with you”. The cab driver obliges.

Is this scenario implausible or impossible? If the scenario is impossible then the trial judge got it wrong. If it is implausible (that is unlikely but still possible) it may be dangerous to convict.

I’ll update this blog on the Appeal outcome of this case.

16 July
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Conditional Discharges in Spousal Assault Cases

Posted by Rory
in Assault, best lawyer in edmonton, Conditional Discharge, criminal lawyer edmonton, Spousal Assault

Conditional Discharges in Spousal and Domestic Assaults

It would seem that Conditional Discharges in Spousal or other domestic assault cases are granted relatively easily.

R. v. A.G. [2005] A.J. No. 1226

is a case where conditional discharge was granted where the accused grabbed stool and threw it, took complainant by the hair and bent her head backwards, and struck her in the face. The accused was only scratched on the face by complainant. The accused was a police officer and the complainant did not want him charged. The parties used to be married, and had reconciled.

Sentence: Conditional discharge; 15 months’ probation; 100 hours community service; $100 victim fine surcharge.

R. v. Aymont [2008] A.J. No. 1150 2008 ABPC 285

A Conditional discharge imposed for 15 months, with accused on probation for that length of time. The couple were married. The nature of the assault is described as follows.

“Specifically, as the complainant Jenna Aymont proceeded upstairs purportedly to get the child and leave the residence, Trevor Aymont followed her, pushed her down onto the stairs, and began choking her. In her statement to the police Jenna Aymont indicated that this caused her to “black out a bit.” She responded to this by punching the accused in the face. The accused then dragged Jenna Aymont down the stairs she was on, but she then broke away and proceeded back up the stairs. The accused followed her to an upstairs bedroom where he again held her by her neck and slapped her several times with an open hand.”

R. v. D.E.D. [2007] A.J. No. 1531 2007 ABQB 508

This is another case where a conditional discharge was granted. This is a case of a father’s assault on his daughter.

“The Appellant put his right hand on D.D.’s neck and pushed her back onto a blanket on the bed where she was sitting, holding her there for a few seconds (without restricting her breathing) and telling her that he would find her and bring her back if she tried to run away again.” The Appellant also cuffed her on the left side of the head earlier.

R. v. Dunn [2013] A.J. No. 418 2013 ABQB 181

HELD: A conditional discharge and 12 months’ probation were imposed.

Sentencing of the accused, 43, for assault. The complainant was the accused’s wife. When she told the accused that the marriage was over, an argument ensued. The accused then pushed the complainant down onto the bed and crawled on top of her, pinning her to the bed. The accused had no prior record and pleaded guilty. Subsequent to this incident he attended counselling. Both spouses were employed as correction officers. The accused sought a conditional discharge.

R. v. Knowlton [2005] A.J. No. 193 2005 ABPC 29

Knowlton received a conditional discharge with a 20 month probationary period.

Sentencing of Knowlton following his guilty plea to a charge of common assault. Knowlton assaulted his estranged common law spouse while intoxicated. The assault involved slapping the complainant, pushing her to the floor, kicking her in the face and slamming her wrist between a door and its frame. The motive for the assault was jealousy. Police noted sizeable bruising and swelling on the complainant’s face, wrist and knee. Knowlton had no recollection of the assault when arrested the following day. Knowlton was an aboriginal man raised in an environment of alcohol abuse and physical violence. He had three children with the complainant with whom he reconciled following the offence. He attributed his difficulties in his life to alcohol, drug abuse, impoverished living conditions and the lack of employment opportunities on his Reserve. A positive presentence report stated that Knowlton abstained from drugs and alcohol following the offence. Knowlton also enrolled in school, attended counselling courses directed at anger management, spousal abuse and family violence prevention. Knowlton had a prior criminal record of two dated convictions.

R. v. Serafinchon [2009] A.J. No. 1139 2009 ABPC 308

A conditional discharge was imposed. The accused was placed on 18 months’ probation

Sentencing of the accused for assault. The accused pleaded guilty. The accused sought a conditional discharge. The complainant was the accused’s common law partner and the mother of his young child. The accused kicked her on the street while she lay at his feet. The complainant’s face was bloodied as a result of the injuries sustained in the assault. The accused, 26, was employed as a trucker. The parties reconciled after the incident and the accused had been taking steps in order to deal with issues of alcohol abuse. The accused has no prior criminal record and had shown remorse for the incident.