There are a number of forms of assault in the criminal law, including but not limited to simple assault, sexual assault, assault with a weapon and aggravated assault. The sentencing range for those convicted is from an absolute discharge to years in the penitentiary depending on many factors, including the charge, the circumstances of the case, and the court presentation.
Assault is sometimes simply defined as the intentional application of force to another without the consent of the other. However, there is more to the law than this definition. In some circumstances, an assault is committed even where there is no actual contact. Account must also be taken of any available excuse or justification. It is not always enough for the prosecution to prove who struck the first or only blow.
For all criminal investigations or charges, it is wise to consult counsel immediately and to avoid making statements to others at least until that is done.
What is an Assault?
In Canada, an assault includes any intentional, non-consensual, application of force to another person, or threatened application of force. It can also occur if you accost or impede someone or beg while wearing or carrying a weapon or imitation weapon.
What is an "intentional application of force"?
The criminal law is concerned with intentional acts as opposed to accidents. If you walk up to someone on the street and push them, you would be committing an assault. On the other hand, if you trip over something and fall into another person, you would not be committing an assault despite the fact that you applied force to the other person, because it was not intentional.
Is it an assault if I throw something at someone?
Yes. An application of force can be direct or indirect.
Does someone need to be hurt for there to be an assault?
No. Any amount of force is enough to constitute an assault.
But I did not touch the person. Can I still be convicted of assault?
An assault can be committed if someone behaves in such a fashion as to make the other person think they are going to be hit, whether or not there was actually contact.
What is consent?
An application of force will generally not be an assault if there is consent to the force being applied. Consent can be either expressed or implied. Express consent would occur if you tell someone they can go ahead and punch you in the arm. Implied consent would occur if, for example, you climb into a boxing ring while wearing boxing gloves and shorts and walk up to someone else similarly attired with your hands up. You may not have told the other person in the ring that you are okay with them punching you in the arm but your actions would imply you were consenting to being hit.
But what if the other person in the boxing ring is secretly not consenting to being hit?
In Canada, consent is analyzed from the perspective of the person who is accused of committing an assault. If the accused person reasonably believed there was consent, even if that turns out to be a mistake, they will not be guilty of assault.
Can people consent to any kind of an assault?
No. In Canada, there are a number of limitations to consent. In most circumstances, a person cannot consent to serious bodily harm. Even if someone agrees to being shot with a gun, for example, this would not constitute a defence to an assault charge.
Are there different kinds of assault?
Yes. They include:
- “simple” assault
- assault causing bodily harm
- aggravated assault
- assault with a weapon
- sexual assault; and
- assaulting a peace officer
What is assault causing bodily harm?
Assault causing bodily harm is an assault that causes hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely “transient or trifling” in nature.
What is aggravated assault?
An aggravated assault is an assault that wounds, maims, disfigures, or endangers the life of the person assaulted.
What is an assault with a weapon?
An assault with a weapon is any assault committed while carrying a weapon, using a weapon, threatening to use a weapon, or any of these things with an imitation weapon.
What is assault with a deadly weapon?
This is American terminology. In Canada, there is no distinction in the offence whether a weapon is “deadly” or not. However, the nature of the weapon may play a part in sentencing if the person were convicted, and can be important to considerations of self-defence. There are separate offences when dealing with weapons that are firearms, prohibited, or restricted.
What is a sexual assault?
A sexual assault is any assault which was committed for a sexual purpose. There are some special exceptions to the concept of consent that apply in the case of a sexual assault allegation.
What is assaulting a peace officer?
The most common form of assaulting a peace officer involves an assault on a police officer who is engaged in the execution of his or her duty. The issues with this charge can include whether a police officer was, in fact, acting in the execution of their duty and whether the person charged knew that they were, in fact, a police officer.
What defences are available to an assault charge?
It should be remembered that a person accused of committing an assault is presumed to be innocent and that the Crown has the burden of proving all of the elements of an assault including the absence of consent, and that none of the defences are applicable. The most common defences to an assault charge would include self-defence, defence of others, or defence of property.
What is self-defence?
In Canada, self-defence is a surprising complex area of the law. There are several sections of the Criminal Code that afford different versions of self-defence in different circumstances depending on the amount of force used, who assaulted whom first, and what kind of an assault was being defended against. One of the important things to keep in mind, however, is that self-defence is analyzed from the point of view of the accused person. Even if an accused person turned out to be wrong about the need to defend themselves, they may still have a defence if they reasonably believed that they needed to defend themselves at the time of alleged assault. This is an area of the law where an accused person should ensure that they get advice from a lawyer.
If I were hit first, does that mean that self-defence applies?
Not necessarily. The legal analysis will depend on why you applied force to someone else. If you assault someone in order to punish or get back at them, it will not constitute self-defence. On the other hand, even if you strike the first physical blow, you may have been acting in self-defence if you thought it necessary at the time to protect you, or someone else, from an assault.
Is provocation a defence to assault?
No. The fact that someone was provoked does not make them not guilty of assault. However, all else being equal, the element of provocation may make the punishment more lenient.
What if the person I‘m alleged to have assaulted doesn’t want to press charges. Does that mean that they will be dropped?
No. In Canada, Crown Counsel, and not the complainant, decides if criminal charges should be pursued. Even if the complainant does not wish to proceed with a prosecution, Crown Counsel may decide there is a public interest in pursuing the charge.