Assault and arrest - the Canadian way.

We watch too much American TV.

Just ask any Canuck that you know, what drinking and driving is called and they will say "It's a DUI" No it is not. We are Canadian. It is called "Impaired driving" or "operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood" - or 'over 80' in slang format.

The other day someone I know got a speeding ticket - and they wanted to fight it because they didn't want a 'felony' on their record. I almost choked on my "Tim Horton's Double Double".

In Canada there is no such thing as felonies nor are there misdemeanors. Criminal offences are categorized as 'Indictable', 'Summary Conviction' or 'Hybrid' offences. Each determining the seriousness of the offence and the legal process it follows.

Yes. We watch too much American T.V. Over the last several years there has been an incredible amount of coverage on American television of poor police procedures that resulted in not only injuries and deaths, but sparked protests, riots and other civil unrest. Canada has also had news coverage of issues surrounding police procedures - but the issues are much different.

In Canada, police officers are trained much differently than the USA - and I don't know of one contemporary police officer in Canada that was hired and began working as an officer without a lot of training. Canada is unlike in the USA in this respect - where state by state and jurisdiction by jurisdiction, the requirements for hiring and training of police officers is very different. Additionally, none of our 'sheriffs' or chiefs are elected. They must have experience - not popularity. It's a much different system.

​Which brings me to 'arrest', the Canadian way.

To be arrested in Canada by a police officer - the officer must have reasonable and probable grounds to believe that the person they are arresting committed an offence. For example if the police receive a complaint of assault - they do not just hop in the car - activate the siren, race to the accused's home, bust down the door and drag the 'perp' out kicking and screaming all while playing "bad boys, bad boys" in the background.

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If someone calls the police or visits the local station to file a complaint of assault - the officer taking the complaint will generate an occurrence or report number, and write down the details of the complaint.  They may ask for a written and signed statement to include with the report and may start an investigation.

If however, the officer listened to the story and does not believe the account of the complainant - or investigates the complaint and finds that there was no assault, the complainant will be told that there has not been an assault and the report will be closed.

Either way, there is always a paper trail of the complaint and the disposition.

An arrest only occurs once an officer forms reasonable an probable grounds to believe that an assault has occured.

If the officer determines after the investigation there has been no assault - there will be no arrest for assault.

To meet the definition of assault, force has to be applied intentionally and without consent of the person complaining of the assault.  

​Black's Law Dictionary describes force as "Power, violence, compulsion, or constraint exercised upon or against a person or thing."

So for example, touching a person with a paper, or a ticket could never be considered assault - as there is no force applied.  

Was I just assaulted?

The definition of Assault under the Criminal Code of Canada is as follows:

Assault

• 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.

The key to determining if an assault has occurred is by following the criminal code and determining if all the criteria has been met.  In subsection (1)(a) it says "applies force intentionally".  Other criteria is "without consent".  There are other subsections - but this subsection covers simple assault.

​Read the Criminal code about assault here.

When you consider the definiton of 'force' and you apply it to say, "being given a ticket that the officer slides between the arm and the torso" - this cannot be called assault as no force was applied.  Especially if the ticket then falls to the ground. Clearly at this point it is safe to assume no force was applied - as the ticket did not remain in the place the officer inserted it.

Other things an officer may consider is the consistency of the complaint that the complainant gave the officer.  If at first the complainant says "the officer shoved it into my man-bag" and then changed the story to "the officer shoved it into my armpit" - the police agency receiving the report may not find the complaint credible.

Either way - if there was no intentional force applied - there was no assault.

How then, can spitting on someone be considered assault?  There was 'force applied intentionally'.  However, if the victim does not complain to the police about the assault - there would be no arrest.  There always has to be a victim in a simple assault.

In closing - if an assault complaint has been investigated and determined not to have occurred by the police - then the  person complained of has not committed assault.  The end.  

Saying, or writing repeatedly in a blog or any other publication that that person has commited assault, or that you had them charged with assault when you KNOW the police determined no assault occurred, is CRIMNAL LIBEL. 

 It is not free speech.  (Read more about that here)

Which is another blog post all together.

Punishment of libel known to be false (under the Criminal Code of Canada)

Section 300 Every person who publishes a defamatory libel that they know is false is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than five years; or
(b) an offence punishable on summary conviction.