In R. v. Wong, a man was charged with three assault offences under the Criminal Code, sections 266, 267 and 268: assault, assault with a weapon or causing bodily harm, and aggravated assault. In a trial by jury, the man was acquitted on the charges of assault and aggravated assault, but convicted on the offence of assault with a weapon or causing bodily harm. He appealed his conviction for assault with a weapon on the basis that the trial judge should not have left this included offence with the jury to consider and therefore, the conviction should not stand. The appellant, Mr. Wong, won his appeal and was acquitted on all assault charges.

The assault charges arose after a man became involved in an altercation in his apartment, with his roommate and his roommate’s co-worker. During their disagreement, the appellant picked up two knives and cut his roommate’s co-worker across his chin, which resulted in a gash requiring eighteen stitches.

As is often the case, the testimony by the various parties all differed on the events that led up to the injury, although no one disputed that the co-worker received his injury when struck by the appellant holding a knife.

The appellant testified that he was only waving the knife around in his own defence, to prevent the co-worker from attacking him. He further stated that he did not intend to cut or hit the co-worker.

When the trial judge gave his instructions to the jury, he left them with a consideration of all three assault charges, and they returned a verdict of guilty only on the offence of assault with a weapon. Immediately after the judge instructed the jury, defence counsel objected to the fact that the judge left the jury with the included offences, assault and assault with a weapon, and defence counsel made the same argument on appeal. Defence counsel’s objection was based on her contention that the included offences are not an issue for the jury; if the jury finds that the assault was intentional, then this action constitutes aggravated assault and there is no point in getting sidetracked by the charge of assault with a weapon or causing bodily harm. On the other hand, if the jury has reasonable doubt whether the appellant cut the co-worker intentionally and/or reasonable doubt whether the appellant was acting in self-defence and thus finds the defendant not guilty on the charge of aggravated assault, it should follow that he is also found not guilty of assault with a weapon.

The offence of assault with a weapon or causing bodily harm is an included offence under aggravated assault by wounding (Criminal Code, section 662(1)). It is generally recognized that guilt or innocence on these charges is an ‘all or nothing’ situation and a jury should be instructed accordingly.

Defence counsel argued that the fact that the jury acquitted the appellant on the main charge but found him guilty on an included charge indicates that they were likely confused as to the elements of aggravated assault.

Defence counsel also submitted that if the jury properly applied the law, it would have acquitted or convicted on the full offence. Counsel for the Crown disagreed that the trial judge erred and further suggested that the jury’s verdict indicates that they clearly rejected the appellant’s defences. However, Crown counsel agreed with defence counsel that an acquittal on the charge of aggravated assault and a conviction for assault causing bodily harm are irreconcilable decisions.

The appeal judge agreed that there is no reasonable assessment of the evidence that would result in an acquittal on aggravated assault by wounding and a conviction on assault with a weapon or causing bodily harm, as the two offences differ only in the kind of injury inflicted. In this case, it was undisputed that the co-worker’s injury constituted a wounding, and the nature of the injury was not a basis for different verdicts on the two assault charges. The judge declared that if any of the appellant’s defences gave the jury reasonable doubt, the appellant was entitled to a full acquittal.

In considering whether the inconsistency in verdicts should most appropriately result in a new trial or an appeal of the conviction, the judge cited R. v. Pittiman, where it was concluded that if an acquittal is allowed to stand on the charge of aggravated assault, any verdict other than acquittal for assault causing bodily harm would amount to an unreasonable and inconsistent verdict. In R. v. Wong, the judge granted that the jury should not have been given instructions on the offence of assault causing bodily harm. Further, as the acquittal verdict on the offence of aggravated assault causing wounding stands, the only proper decision is to also acquit the appellant on assault causing bodily harm. As such, the judge overturned the former conviction.

If you have been charged with any assault offence, contact the skilled criminal defence lawyers at Kruse Law immediately. There are several effective legal defences against assault charges, such as self-defence or a violation of your Charter rights during the arrest process, and we will pursue these to their fullest to achieve the best possible outcome for your case.

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