TLDR:
When Greater Toronto Clients charged with assault consult with Mass Tsang lawyers, among the first questions they ask is whether they will go to jail if convicted, says the firm’s managing partner, Robbie Tsang . “Our answer typically varies depending on the type of assault, degree of alleged harm, and other extenuating factors,” he notes. “We’re able to assure many of our assault defendants that we believe we’ll be able to avoid conviction altogether. We tell some it’s a possibility, but not likely. With others, we must explain that the Crown has a solid case, but we may be able to negotiate a sentence that doesn’t include jail or prison. With a few of our clients, we must admit that the severity of the charges guarantees a significant prison term if convicted, but we will strive to either negotiate a more favourable outcome or try to beat the charges at trial.”
Robbie’s co-managing partner at the firm, Jeff Mass , says, “Sometimes we have to respond to that question by saying, ‘you’re already in jail.’ Such clients face pre-trial custody due to the severity of the charges, which can significantly impair their ability to help us prepare their defence. So, we tell them it’s imperative to use our bail hearing services to try to secure their freedom during their judicial interim release hearing.”
Jeff adds that based solely on statistics, they can tell their clients that Ontario courts convict less than 35% of assault defendants, and relatively few of those convicted of Level 1, simple assault are sentenced to imprisonment. Let’s look at these statistics and other factors that may determine whether an Ontario court sentences an assault defendant to a jail or prison term.
According to the latest Statistics Canada data on adult criminal court case outcomes, Ontario Courts convicted between 26-35% of Level 1 assault defendants annually between 2016 and 2023. In the majority of assault cases during this time period, the courts either stayed or withdrew the charges. The conviction rate for assault with a weapon or causing bodily harm (Level 2) and aggravated assault (Level 3) for this time frame was even lower, ranging from 21-27%. Again, Ontario courts stayed or withdrew charges in most cases — in the 2022-2023 period of the more than 25,000 major assault cases adjudicated in the province, more than 18,000 resulted in stayed or withdrawn charges.
Perhaps needless to say, but absent a conviction, Ontario courts cannot sentence an assault defendant to jail or prison. Robbie Tsang and Jeff Mass note that many of the stays and withdrawals of assault charges are likely the result of effective defence lawyering. “A court isn’t going to withdraw or stay assault charges without reason, but an effective defence lawyer strives to find such reasons,” says Robbie. “If the police or other reliable witnesses did not witness the assault, and corroborating evidence is skimpy, a skilled defence lawyer will push the Crown to recognize the shortcomings of their case.”
“If we can raise enough reasonable doubt about the Crown’s evidence during pre-trial negotiations, it’s often enough to scuttle their case,” adds Jeff. “The ‘guilty beyond a reasonable doubt’ threshold needed to gain a conviction is a high bar to cross at trial. Therefore, Crown lawyers are not going to expend significant resources if they know we can raise such doubts.”
If you are convicted of assault due to concrete evidence, a negotiated settlement to reduce the charges or mitigate punishment, or because you decided to defend yourself, prison or jail time is a distinct possibility. However, sentencing is essentially a subjective exercise, in which judges must consider whether such punishment will help deter the offender from committing future offences, protect or otherwise serve the community, and is commensurate with the offence committed.
Among the first considerations of a judge sentencing someone convicted of assault is the severity of the offence. The Criminal Code’s definition of assault broadly entails everything from intentional unwanted touching — or attempts or threat thereof — to putting someone in the hospital, via brute force or a weapon, on temporary life support and/or with life-long disabilities.
Thus, the degree of physical or emotional harm experienced by the victim will play a primary role in whether a judge imposes a prison or jail term. Many Level 1 assaults cause minimal physical or emotional harm, and most judges would be reluctant to impose a jail term in the absence of such. However, Section 265 of the Criminal Code grants them the authority to impose a sentence of up to five years imprisonment if convicted as an indictable offence; six months when charged as a summary conviction offence.
Most Level 1 assaults are charged as summary conviction offences, and judges prefer to punish convicted offenders with probation, fines, and other sanctions. However, if charged under indictment, the likelihood of potential imprisonment increases.
The likelihood of a short-term jail or longer-term prison sentence increases significantly for those convicted of assault with a weapon or causing bodily harm and aggravated assault. These offences tend to cause significant harm to victims, which is a primary factor in a judge’s decision-making. Assault with a weapon or causing bodily harm carries a maximum sentence of 10 years’ imprisonment when charged as an indictable offence; two years maximum when charged summarily. Note that government mandates encourage harsh sentencing for firearms-related offences, almost guaranteeing a prison term for assaults involving guns.
Due to the severity of the damage caused to victims, aggravated assault is solely charged as an indictable offence, which carries a maximum 14-year prison sentence upon conviction. Few people convicted of this type of assault escape serving at least some time in prison.
Aggravating factors, including some codified in the Criminal Code, play a significant role in a judge’s sentencing decisions, including the duration of one’s jail or prison term. Section 718.2 of the Code lists over a dozen factors that may influence a judge’s decision to incarcerate someone convicted of assault. Non-codified aggravating factors can also contribute to harsher sentencing. Common aggravating factors that increase the likelihood of incarceration in assault conviction sentencing include:
If Ontario police have charged you with assault, consult an experienced criminal defence lawyer to ensure that you don’t spend any time behind bars. Skilled assault criminal defence lawyers, like those at Mass Tsang, are highly adept at uncovering weaknesses in the Crown’s evidence, securing positive outcomes in pre-trial negotiations, and successfully securing acquittals at trial. In the event of a conviction, a competent defence lawyer can also be instrumental in mitigating possible incarceration terms.
Mass Tsang’s criminal defence assault lawyers are ready to defend you 24/7 against assault charges in the Greater Toronto Area. With an outstanding record of successful defences for assault clients in the GTA, contact us today for a free consultation.
