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assault Tag

Edmonton Criminal Lawyer Ziv > Posts tagged "assault"
20 March
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COVID 19

Posted by Rory
in criminal lawyer edmonton

COVID 19 – Paths to Criminal Liability

Introduction

[1]          As we start to practise social distancing – the obvious question emerges – what is our legal obligation to do so?

[2]          Beyond this question – what if you knowingly have Covid 19 and pass it onto someone else? Can you be prosecuted criminally?

[3]          In Canada, there appears, in theory, to be two paths to liability.

(1)    Assault;

(2)    Criminal Negligence;

Assault

[4]            The Canadian definition of assault can be found in s. 265 of the Criminal Code. Basically, an assault is an intentional application of force, direct or indirectly without the person’s consent. Consent cannot be obtained by fraud.

[5]          Let’s hypothetically say X who has been told he/she has the virus, is asymptomatic, kisses Y. If Y knows that X is COVID positive, and assumes the risk, then there is no fraud and no criminal liability under the law of assault.  The trickier question becomes — what if X doesn’t tell Y? Whether Y gets ill or not becomes irrelevant. Was an assault committed? The HIV cases are instructive in answering this question.

[6]          In order to be found guilty of (aggravated sexual) assault in HIV cases the following is required as per R. v. Mabior 2012 SCC 47 at para 104:

To summarize, to obtain a conviction under ss. 265(3)(c) and 273, the Crown must show that the complainant’s consent to sexual intercourse was vitiated by the accused’s fraud as to his HIV status.  Failure to disclose (the dishonest act) amounts to fraud where the complainant would not have consented had he or she known the accused was HIV-positive, and where sexual contact poses a significant risk of or causes actual serious bodily harm (deprivation).  A significant risk of serious bodily harm is established by a realistic possibility of transmission of HIV.  On the evidence before us, a realistic possibility of transmission is negated by evidence that the accused’s viral load was low at the time of intercourse and that condom protection was used.  However, the general proposition that a low viral load combined with condom use negates a realistic possibility of transmission of HIV does not preclude the common law from adapting to future advances in treatment and to circumstances where risk factors other than those considered in the present case are at play. [emphasis added]

[7]          It is not enough, and this is the important point, to simply have the disease and not disclose to your partner. There must be a “significant risk” of bodily harm couple coupled with a “realistic possibility” of transmission.

[8]          In R. v. JTC 2013 NSPC 105 the medical evidence established that there was a 1/million chance of passing on the virus even with unprotected sex (low viral loads). The accused was found not guilty. Likewise, in R. v. CB 2017 ONCJ 545.

[9]          In R. v. WH 2015 ONSC 6121 condom use and low viral load resulted in a finding of not guilty. See a contrary result in R. v. Goodchild 2017 ONSC 6739 were a detectable viral load and condom use resulted in a guilty finding.

[10]        In R. v. Thompson 2016 NSSC 134, condom use only resulted in a finding of not guilty (aff 2018 NCSA 13).

[11]        In theory, if you know you have COVID 19, have been told to self isolate, and have had contact, which includes indirect contact, with another person and therefore have created a “realistic possibility of transmission” you could be liable under the law of assault for transmitting the virus.

Negligence

[12]        In Canada under ss. 219, 220 and 221 of the Criminal Code you could be liable for transmission of the COVID 19. Those sections hold a person liable for doing anything or omitting to do anything they have a duty to do and shows “wanton disregard or reckless disregard” for the lives and safety of other persons.

Conclusion

[13]        I have been careful to frame the question and answer “in theory” because as the HIV cases show there are many factors that must be accounted for in determining whether someone will actually be found guilty and there is so much about Covid-19 we still don’t know.

[14]        I wish everyone well over this difficult time and especially to my fellow criminal lawyers who without work for the foreseeable future are going to struggle.

 

 

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.

08 January
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The Intoxilyzer

Posted by Rory
in Intoxylizer Operation

Operating the Breath Instrument (Intoxilyzer) Correctly

 

An excellent decision was provided by Judge Higgerty in Edson, Alberta. The defence counsel in the case was Alan Pearse.

Burping into the Intoxilyzer

The evidence was that the Accused was taken out of the phone room after speaking with a lawyer and asked to provide a breath sample. Given that 15 minutes had not elapsed between being taken out of the phone room and positive evidence that the accused had not burped the judge had reasonable doubt that the machine was not being operated properly. Here is an excerpt:

Depending on whether one is a defence lawyer or a prosecutor, one tends to refer to an Intoxilyzer as a machine or an instrument; being an ex-prosecutor, I will refer to it as an instrument. Certainly a very precise instrument authorized by Parliament to be the centrepiece, if you will, a tool of great use in weeding out impaired drivers on the road, but the fact remains that in many cases an accused is being convicted by an instrument. And I only say that, and it is perhaps a bit of an exaggeration, a bit of a stretch, but I say that in all seriousness because that underscores that the instrument must be operated correctly in order to bring it within the parameters of the Criminal Code of Canad which essentially allows hearsay evidence, a certificate, to be essentially the entire case against an accused.

The requirement is 15 minutes, as set out by the manufacturer, although it seems to be acknowledged by the case law that in most cases 5 minutes would be sufficient, but the manufacturer says 15 minutes. And there is a very good reason for this, the presence of mouth alcohol can result in an unreliable reading.

I did have a question earlier on, and I can perhaps answer my own question, does the accused have to adduce positive evidence that he burped or belched or chewed on a cough drop, that type of thing, during that 15-minute run-up to the first sample and, indeed, I suppose, prior to the second sample as well? And in the real world, given that Officer Jackson had difficulty on the subject of slurred speech, how could we expect an ordinary accused to remember if he or she burped within the 15 minutes prior to providing a sample? So I find that this 15-minute requirement is just as important for the operator to ensure as flipping the right switch at the right time. The 15-minute requirement is an integral part of the operation of the Intoxilyzer and the manufacturer’s requirement was not complied with. I will not speculate as to, and I am lapsing into the vernacular, aw, shucks, golly, it does not mean that much anyway. I will not go there. The facts, to me, are the instrument was operated incorrectly, the manufacturer required that 15 minutes, that 15 minutes was not observed and, therefore, in my view, the instrument was not operated correctly and the presumption cannot be relied upon. Therefore, on the over 08 charge, I also find the accused not guilty.

For a copy of the decision please contact my office at 780-429-4004.Intoxilyzer

 

19 October
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Detention

Posted by Rory
in detention

Psychological Detention

R. v. Wong 2015 OJ No 5049

The Canadian Charter of Rights and Freedoms says “everyone has the right on arrest or detention  …  to retain and instruct counsel without delay and to be informed of that right;”

The Decision

In a recent Ontario Court of Appeal decision, R. v. Wong [2015] ONCA 657 the Court reaffirmed the proposition that detention includes psychological detention and not only physical detention. In the Wong decision a fully dressed police officer entered into an apartment with the consent of the accused. He started noticing some drug related items but didn’t arrest or formally detain the accused.

The Court concluded that as the interaction between Ms. Wong and the officer continued, the officer’s conduct became “increasingly authoritative”.  The detention in this case crystalized when the officer asked questions like “what’s going on here” “if the scale was for baking where are the baking supplies” “I could arrest you for being in possession of drug paraphernalia” .

The Court then also re-emphasized that “without delay” means “immediately” and therefore at the moment Ms. Wong was detained she was required to be informed of her right to counsel, immediately, and because this did not happen all subsequent evidence found (statements and drugs) were ruled inadmissible.  The Court concluded:

In this case, the officer did not know what the law was. He did not understand the circumstances giving rise to detention and he did not appreciate either his responsibilities or the appellant’s rights. The appellant’s rights were trammelled in his search for evidence. The administration of justice would be brought into disrepute by the admission of the evidence, and, in my view, it should have been excluded.

Conclusion

As a criminal defence lawyer who often utilizes the Charter in defence of clients’ it is sometimes very difficult to analyze when a police interaction with a person has become a de facto detention of arrest.  It is critical to know when this Rubicon has been reached because as Wong demonstrates, if evidence is gathered without proper Charter compliance then evidence could be excluded.