Assault, Sexual Assault and Motor Vehicle OffencesLaw 120

Assault• The most common form of violent crime is

assault (76% of all reported violent crimes). The Criminal Code classifies assault according to three levels.1. Assault2. Assault with a weapon

or causing bodily harm3. Aggravated Assault

• Level one of assault is a hybrid offence and carries a maximum penalty of 5 years’ imprisonment. Ex. Pushing someone or threatening someone with violence.

• Words by themselves cannot be considered an assault; they must be accompanied by an act or gesture. Assault occurs when any one of the following occurs:• Intentionally applying force to another person, either directly or indirectly, without that person’s consent.•Attempting or threatening by act or gesture to apply force.•Accosting or impeding another person, or begging, while opening wearing or carrying a weapon or an imitation of a weapon

Assault

• Level two of assault is assault with a weapon or causing bodily harm. This type of assault is defined as injuring a person in a way that serious consequences for the victim’s health or comfort. It may also involve carrying, using, or threatening to use a weapon. This is a hybrid offence and carries a maximum penalty of 10 years’ imprisonment.

Assault

• Level three of assault is the most violent form and is called aggravated assault. Aggravated assault is defined as wounding, maiming, disfiguring, or endangering the life of the victim. This is an indictable offence and carries a maximum penalty of 14 years in prison.

Assault

Sexual Assault• A number of factors are considered when

determining whether or not the conduct of an accused is sexual in nature:• the part of the body touched• the nature of the contact• the situation in which it occurred• the words or gestures accompanying the act• all other circumstances surrounding the conduct, including threats, which may or may not be accompanied by force.

Level 1 Sexual Assault

Level 2 Sexual Assault

The second level is defined as “Every person…who, in committing a sexual assault, (a) carries, uses or threatens to use a weapon or an imitation of a weapon; (b) threatens to cause bodily harm to the a person other than the complainant; (c) threatens to cause bodily harm to the complainant; (d) is a party to the offence with any other person, is guilty of an indictable offence and liable…to imprisonment for a term not exceeding 14 years.” This is a general intent offence which means that the words “knowingly” or “with intent” are not included. Conviction at this level can lead to up to 14 years in prison

Level 3 Sexual Assault

Level 3 Sexual AssaultThe actus reus of sexual assault is the sexual touching to which the victim does not consent. The mens rea of sexual assault can rest on the knowledge that the victim gave no consent; recklessness; or wilful blindness (the perpetrator avoids asking the victim if consent is being given). Consent is frequently an issue in sexual assault trials, especially since there are usually few witnesses to sexual assault.

Sexual Assault Rulings• A spouse can charge the other spouse for any level

of sexual assault whether or not they are living together.

• Is the past conduct of the complainant relevant in a sexual assault trial? These factors may influence the judge and jury in terming whether or not consent was given or if the accused honestly believed it was. The Criminal Code now prohibits evidence of sexual reputation from being raised in court in order to challenge or support the credibility of the complainant. However, evidence about sexual activity of the complainant can be introduced after a judge has determined its value to the fairness of the trial. Some personal records of the complainant can be entered into evidence at trial. Among the records are: medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records as well as person journals and diaries.

Sexual Assault Rulings• A spouse can charge the other spouse for any level

of sexual assault whether or not they are living together.

• Is the past conduct of the complainant relevant in a sexual assault trial? These factors may influence the judge and jury in terming whether or not consent was given or if the accused honestly believed it was. The Criminal Code now prohibits evidence of sexual reputation from being raised in court in order to challenge or support the credibility of the complainant. However, evidence about sexual activity of the complainant can be introduced after a judge has determined its value to the fairness of the trial. Some personal records of the complainant can be entered into evidence at trial. Among the records are: medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records as well as person journals and diaries.

Motor Vehicle OffencesMost motor vehicle offences, such as speeding or failing to stop at a red light are under provincial jurisdiction. As a result, they are not addressed in the Criminal Code. However, because of their seriousness, the following offences ARE contained in the Criminal Code.

Dangerous Operation of a Motor Vehicle• A ‘motor vehicle’ is defined in the Criminal Code as a vehicle that is drawn, propelled, or driven by any means other than muscular power. Such vehicles include cars, snowmobiles, motorcycles, motor boats and all-terrain vehicles. To convict an accused of dangerous operation of a motor vehicle, the Crown must prove that the safety or lives of others were endangered because the driver failed to exercise the same care a prudent driver would have exercised under the same conditions. This offence can be committed in a number of ways, depending on the manner and circumstances in which the vehicle is operated.

Dangerous Operation of a Motor Vehicle

Ex. Bob is late for work. On his way, he drivesover the speed limit and passes another motorist on the double line, forcing an on-coming car off the road. Dangerous operation of a motor vehicle is a hybrid offence punishable for a term of up to 5 years. Dangerous operation causing bodily harm is an indictable offence with a maximum punishment of 10 years. If someone driving in a dangerous fashion causes a death, the maximum penalty is 14 years in prison.

Failure to Stop at the Scene of an AccidentAccording to the Criminal Code, anyone who is involved in a motor vehicle accident and does not stop, offer assistance, and give his or her name and address is presumed to show intent to escape civil or criminal liability. This person may be charged with failure to stop at the scene of an accident. Commonly known as ‘hit and run’, this is a hybrid offence punishable by a term of up to 5 years. The maximum punishment for a hit-and-run accident causing bodily injury is 10 years. If the accident causes a death, the offender can be sentenced to a maximum of life in prison.

Impaired DrivingThe proof that a driver is impaired, either by drugs or alcohol, can come from a number of sources. A person’s erratic driving, slurred speech, or inability to walk a straight line, or the smell of alcohol on his/her breath can serve as proof of the driver’s impairment. Another source of proof is a breath or blood test, of which measure the amount of alcohol in the person’s bloodstream. Under the Criminal Code, it is an offence to drive or to have ‘care or control’ of a motor vehicle while the amount of alcohol in the bloodstream exceeds 80 milligrams in 100 millilitres of blood.

Impaired DrivingIf the police have reasonable and probable grounds to believe that an impaired person is or has been operating a motor vehicle within the last three hours, they may demand that this person take a Breathalyzer test. Any individual who cannot take the test because of an existing medical problem may be asked to give a blood sample instead. The blood sample may only be taken by a qualified medical practitioner who is satisfied that doing so will not endanger the subject’s health.

Impaired DrivingIf the police have reasonable and probable grounds to believe that an impaired person is or has been operating a motor vehicle within the last three hours, they may demand that this person take a Breathalyzer test. Any individual who cannot take the test because of an existing medical problem may be asked to give a blood sample instead. The blood sample may only be taken by a qualified medical practitioner who is satisfied that doing so will not endanger the subject’s health.

Impaired Driving

Operating a motor vehicle while impaired and refusing to provide a breath or blood sample are both hybrid offences. The severity of the punishment increases for subsequent offences. Impaired driving causing bodily harm is an indictable offence with a maximum penalty of 10 years in prison. If an impaired driver kills someone, the maximum penalty is life in prison.

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