In our last blog, we wrote about the Court of Appeal decision in R. v. Theriault, a high-profile case involving an off-duty police officer and his younger brother assaulting a young Black man, blinding him in one eye. In our previous post, we examined the aspect of the case pertaining to obstruction of justice. This week, we will be taking a closer look at the charge of aggravated assault, and how it differs from “common” assault. What elements are necessary for an assault to be considered an “aggravated” assault, and what does the Crown need to prove?

Assault vs. Aggravated Assault

Aggravated assault is defined (and prohibited) by Section 268 of the Criminal Code, and can lead to a term of imprisonment of up to 14 years. Section 268(1) defines aggravated assault as:

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

By comparison, the criteria for the charge of assault (often dubbed “common assault”) can be found few sections earlier at Section 265 of the Code. According to this section, assault can occur when:

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

(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 stands out as the biggest difference between the two concepts is that no actual physical harm done to a victim or complainant is required for a charge of assault. If a person throws a punch at another person and misses the target, it would still be subject to a charge of assault. However, that person could not be convicted of aggravated assault because of the lack of physical harm or damage unless the attempted punch somehow endangered the life of the complainant. For example, if the target was standing on the edge of a cliff and in order to avoid the punch, took a step backwards and fell off the cliff. But such scenarios are quite rare.

When it comes to a threat of assault, courts make a distinction between casual utterances and actual threats of harm. For example, someone “threatening” a person with words such as “If you don’t stop talking about the Olympics already, I’m going to stick a javelin down your throat!” is less likely to warrant a conviction of assault. A threat in this case would only warrant charges if the person in question clearly wasn’t joking and actually had a javelin in their possession and was brandishing it menacingly at the time. Note that if the person did assault another person with a javelin, they likely would be subject to another assault charge, “Assault with a weapon or causing bodily harm” under Section 267 of the Code which might be seen as being in between “assault” and “aggravated assault” when it comes to severity.

The Theriault Case

The Theriault case concerned an off duty cop who, along with this brother, caught some teenagers stealing items from their parents’ truck in Whitby, Ontario, including the complainant, Dafonte Miller. Miller ran from the scene and the two brothers chased him down, resulting in a violent altercation that left Miller with serious injuries, including permanent blindness in his left eye.

Given then that aggravated assault occurs when someone “wounds, maims, disfigures or endangers the life of the complainant”, why then did the Court not find Theriault guilty of aggravated assault but instead the lesser charge of assault? The Crown presumably felt the same given that they ended up appealing Theriault’s acquittal for aggravated assault (while Theriault also appealed his conviction of assault).

In a nutshell, the answer is that the Court was not satisfied beyond a reasonable doubt that the assault by Theriault with the pipe caused the eye injury. Due to the medical evidence and evidence relating to the timing of the injury, the Court believed Miller had already suffered the eye injury by that point in the altercation.

The case was made more complex because of the defences put forward by Theriault of both self-defence (a defence to the charge of aggravated assault under Section 34 of the Code) and the legal authority to use reasonable force while making an arrest (authorized under Section 25 of the Code). This made it possible that the injuries could have arisen in the context of either of those two defences. In other words, the Crown had to “disprove beyond a reasonable doubt that the defendants were acting in lawful self-defence and/or used reasonable force in the course of a lawful arrest” when the injuries that “wounds, mains, disfigures or endangers the life of the complainant” occurred.

Even though the lower court had indicated that Theriault “likely” initially intended not to arrest Miller at the outset and this initial physical altercation (a body check by Theriault of Miller against a fence) was “probably an assault” he also noted that “as with all criminal cases, probability” isn’t good enough. As such, Theriault was found guilty of assault (a charge where it’s not necessary to prove that such an injury) and not aggravated assault.

Guilt Beyond a Reasonable Doubt

The Theriault case not only serves as a high-profile reminder of the duty of the Crown to prove guilt beyond a reasonable doubt but also serves to illustrate how complex assault cases can be, and what defences may be available that experienced legal representation can assist with.

Contact Hicks Adams LLP in Toronto for Experienced Defence Against Assault Charges

Our criminal defence lawyers can advise on how best to protect your rights and defend you in court, including for any criminal charges stemming from physical altercations. We defend individuals charged with a variety of offences, including assault and domestic assault. Contact Hicks Adams LLP in downtown Toronto to discuss the options available to help you through this time. Call us at 416-975-1700 or contact us online to schedule a confidential consultation.