In Canada, the major difference between criminal and civil law is that criminal law deals with acts in violation of the Canadian Criminal Code or other federal statutes while civil law deals with disputes between two or more private parties.

An assault charge can be heard in a criminal case or a civil case. The type of case depends on such factors as the objective, the level of evidence, and the deadlines for taking the legal action. The reason assault charges can be either criminal or civil is that they involve violation of the Canadian Criminal Code and at the same time they involve a dispute between private parties.

Criminal versus Civil Assault CasesCriminal Assault Case

After an assault, the victim should report to the police. The police will then make an arrest, process the alleged assailant, and forward the case to the District Attorney. The D.A. will then prosecute the case in a court of law. The case can be heard by a judge or a judge and a jury of one’s peers.

The state will be in control of the criminal assault charge. The plaintiff has little say on how the case is conducted, although the D.A. may call him/her as a witness. A win for the D.A. results in jail term, a fine, or both.

Civil Assault Case

In a civil assault case, a D.A. is not involved. The case is brought by the plaintiff. The plaintiff has more control in a civil assault case. Note when the plaintiff wins, the defendant will not go to jail but will be required to pay the financial compensation set forth by the court or the jury. Most civil assault cases involve a jury.

Criminal versus Civil Assault CasesThe “Intent” Factor

The level of evidence required in a criminal assault case is the same as that required in an assault personal injury claim. The major difference between the two is intent. Although assault, by definition, must be intentional, in a criminal case, “intentional” means the defendant meant to commit the act of assault and the plaintiff apprehended that they were about to be attacked, hit, or otherwise assaulted.

In a civil case, the defendant need not intend to put the plaintiff in apprehension – but to simply intend to commit the act that he/she should have known would cause apprehension on the part of the plaintiff. The motive of the defendant does not matter when it comes to winning a civil assault injury case, but if there is a particularly evil motive, this can lead to higher punitive damages.

What It Takes to Win

To win a criminal assault case, the D.A. must prove that the defendant intended to assault the victim. The judge or jury must be convinced beyond reasonable doubt that the defendant intended to assault the victim, or recklessly ignored the fact that he/she appeared to be assaulting the victim. In legal terminology, it must be proven the defendant had “mens rea”, which means criminal intent.

Note in most cases, criminal assault charges are a misdemeanor unless the charge is for aggravated assault (an attempt to cause death or serious injury and/or the use of a deadly weapon). A misdemeanor charge does not usually entitle the defendant to trial by a jury of his/her peers and most such cases are heard and decided by a judge.

The defendant cannot be sued in a civil court if the state had already instituted criminal assault proceedings – the criminal case has to be concluded first. If civil proceedings have already commenced and the state decided to institute criminal assault proceedings, the civil case will be “stayed” until the conclusion of the criminal case.

Note that the results of the criminal case (guilt, innocence, or other “findings of fact”) can be used as evidence in the civil case under the “collateral estoppel” doctrine.

Criminal versus Civil Assault CasesWhy Hire a Lawyer for Assault Cases

You should hire a criminal lawyer for civil assault cases because proving intent is difficult for an untrained person. Hiring a lawyer allows you to remove emotions from the case, which can cloud your judgement.

Civil proceedings are more complex than most people imagine. They start by the filing of pleadings in the court, effectively setting out the complaint and the remedy you want. Once the court officer issues the claim and serves the defendant, the defendant must furnish the court with a statement of defense. The process then proceeds to discovery and eventually, trial.

Civil cases are decided on a balance of probability (just like standard of proof is proof beyond reasonable double in a criminal case). This calls for trained and experienced personal injury lawyers.

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Author: AllOntario Team

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