Criminal Assault in Canada

What is an assault?

The definition of assault is found in the Criminal Code at section 265. Generally an assault occurs when a person directly or indirectly applies force intentionally to another person, or who attempts or threatens to do so without consent.

What degree of force is required to

assault somebody?

A person need not harm someone for an assault to occur. An accused may commit an assault although he exerts no degree of strength or power when touching the victim. The force however must be offensive or an affront to an individual's dignity. A push or pinch may be sufficient to establish an assault.

What if I accidentally hit someone?

The application of force must be intentional. Accidentally hitting someone during the course of an epileptic seizure, for example, would not constitute an assault. However accidentally hitting one person in an attempt to hit another is not a defence to assault. It does not matter who the intended victim is, as long the offender intended to apply force to any individual, it is still an assault.

What is the difference between an assault, an assault with a weapon, an assault causing bodily harm and an aggravated assault?

The difference between an assault and an assault with a weapon is the vehicle used to deliver the force. Generally an assault or "simple assault" is caused by the application of force from a person’s extremities such as hands, legs or feet. An assault with a weapon generally involves the application of force with an inanimate object such as a stick, bat, knife or object thrown and can even be delivered by something other than an inanimate object including a dog ordered to attack a person.

The difference between assault, assault causing bodily harm and aggravated assault is the harm suffered as a result of the application of force.

An assault that causes any hurt or injury that is not transient or trifling in nature and interferes with the complainant’s health or comfort will meet the definition of bodily harm.

In order for an assault to meet the definition of an aggravated assault, the injury must be much more substantial. Any sort of injury that wounds, maims, disfigures or endangers the life of another meets the definition of an aggravated assault.

The amount of harm caused by an assault will likely dictate the type of sentence imposed by the judge. While some "simple assault" charges may not result in any jail time, an aggravated assault charge may result in a sentence amounting to several years in jail depending on the severity of the injuries inflicted on the complainant.

Defences to Assault

Consent

For an assault to have occurred, the Crown must prove that the application of force by the accused person was done without the consent of the party to whom the force was applied.

Consent may be express or implied. It many instances, consent is implied and this may be determined from the circumstances surrounding the offence. Generally there is an implied consent to pat a co-worker on the back or shake hands with a relative stranger. However, fraudulently-obtained or forcefully-extracted consents and are really no consents at all. In addition, no one may consent to being killed or seriously injured. A consent to a fight does not normally imply permission to inflict significant bodily harm. Thus where the offender intends, or actually causes, significant harm or death, consent is not a defence.

Mistake Belief in Consent

Even if the Crown proves that consent did not actually exist, it is still available to the accused to argue that they honestly believed the aggrieved party had consented to the application of force. An honest but mistaken belief in consent will also afford a defence to an assault charge.

Self-Defence

The law recognizes that a person is justified in using force or threatening force in certain circumstances to protect either themselves, close family members or property. The basic rule permits the use of force if the force is reasonable in the circumstances. Whether the use of force is reasonable is entirely fact specific and can depend on a number of different factors.

It is important to remember that every allegation of assault is a fact specific inquiry. Consulting a lawyer will assist you with identifying potential defences to this type of allegation. Call me at 416.297.7200 for a free consultation about your case.