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Law Enforcement - The Good, The Bad, The Ugly.....
- Thread starter Paul
- Start date
Use case. Then it's effectively a club. Still would likely be charged as simple assault. This woman was grossly over charged.
An assault is an assault. END OF STORY.
If an assault is intentional, meaning there is motive, intent and Mens Rea, THEN it is criminal assault.
Bumping into someone on the subway causing harm to their person IS assault, doing on purpose is criminal assault.
Slapping your child's hand to stop them from putting their hand in the fire... AGAIN... is assault
You're still not getting it.
IF there was an assault, and there was a an instrument involved in the assault, it is assault with a weapon.
That is THE way the law is written, no discussion, no exeptions
Simple assault in this case is mis-charging, it does not describe what happened.
That has been done. So has assault with a weapon by an untrained person using his fists. Can you point me to a case on CanLii that indicates a water gun was considered a weapon for purposes of assault with a weapon? I'm having difficulty finding one.
The implication, under the law and case law, is that the threat is credible.
Can you show me, in the CCC, where "assault" and "criminal assault" are differentiated?
It was an American situation where a person reported a domestic anger issue involving a gun and police showed up. The male caller pointed out that the female had pointed a pistol at him but he took charge of it and chucked it away after realizing it was a BB gun, a fact he didn't originally disclose.
In short the male was arrested as there was a court order against him. The female was arrested over the gun because it had been represented as a firearm. What it looked like was an important factor. It isn't rare for a person to be shot while pointing a fake weapon.
In short the male was arrested as there was a court order against him. The female was arrested over the gun because it had been represented as a firearm. What it looked like was an important factor. It isn't rare for a person to be shot while pointing a fake weapon.
Turn the water pistol case around, and decide to NOT charge the lady... and we'd be here discussing why the police DID NOT charge?
Everybody is down on the cops here.... put yourself in their shoes for a second here. You're damned if you do (charge) and you're damned if you don't.
They followed the law, followed procedure... we don't like it, but it's a valid charge (if it happened as represented in the news)
Charge, as the criminal code provides, and get prosecuted in the media...
or
NOT CHARGE and be brought up on police act charges. I think they made the right decision... so does the officer's superiors (pretty sure the cops on site didn't make the decision to charge, that would come from higher up.
Have you never heard "The law is an ass"? Cases like this is why.
Everybody is down on the cops here.... put yourself in their shoes for a second here. You're damned if you do (charge) and you're damned if you don't.
They followed the law, followed procedure... we don't like it, but it's a valid charge (if it happened as represented in the news)
Charge, as the criminal code provides, and get prosecuted in the media...
or
NOT CHARGE and be brought up on police act charges. I think they made the right decision... so does the officer's superiors (pretty sure the cops on site didn't make the decision to charge, that would come from higher up.
Have you never heard "The law is an ass"? Cases like this is why.
I would be wondering why the woman wasn't charged with Mischief, perhaps, or just thinking that her claim of accidental wetting might be credible.
In Canada, you can be similarly charged with a firearms offence for pointing a replica gun at someone. You are charged with assault with a weapon because of the belief of the victim that you were pointing a firearm at them. What it actually is doesn't matter. The intent is there.
Common criminal law is built on INTENT. The differential is INTENT. You know that.
If not Sections 265,266,267 are a good start when dealing with assault.
For a criminal prosecution there has to be Mens Rea (which roughly translates to "guilty mind"), if there is Mens Rea in an assault, it's criminal.
Because it was NOT mischief, there was harm done (the guy got wet), so it IS assault, not mischief, AND the assault involve a weapon (by CCC definition)
Mischief is when the damage is inconsequential, and in THIS case the aggrieved party does not see the damage as inconsequential. His person WAS assaulted and she got charged for it.
Mischief does not describe the crime, so is the improper charge
Yes, intent is required for assault. You have made a claim that there are two classes; "assault" and "criminal assault." My position is that there is only one class of crime, assault, that has varying degrees based on the means of committing the crime. Unintentional harm might fall under something like Negligence, but unintentional assault does not exist. Quoting back numbers under the CCC doesn't support your position.
NO
There WAS an assault. That is not in dispute. He got wet. That IS assault.
And by CCC, IF an assault is done with an instrument (NO EXCLUSIONS, NOT CREDIBLE THREAT, IF THERE WAS AN INSTRUMENT, THAT INSTRUMENT IS A WEAPON)
There is no way around it. The assault happened, that makes the threat of the weapon credible.
OK, feel free to think that. I'd just like to see some case law regarding water guns.
If I bump into you and knock you down: I have assaulted you. Not crime. Courts have ZERO interest
If I knock you down INTENTIONALLY: that's a crime
Nothing about two classes, just pointing out there is a difference between assault and criminal assault
The word ASSAULT means doing harm to another being, NOTHING in that definition infers criminality
There are no "degrees" of assault, the definition is cut and dry and self explanatory
If you accidentally bump into me and I'm injured, there has still been no assault. I might have a TORT against you for damages, but it's not a criminal matter. If you "accidentally" bump into me when you're running down a crowded sidewalk with your eyes closed then you may have committed an act of criminal negligence, but it's still not assault.
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