Assault is an offence under section 265 of the Canadian Criminal Code. In plain language, an assault occurs when a person intentionally applies direct or indirect force to another person without the other person’s consent. An assault can also occur when a person attempts or threatens to intentionally apply direct or indirect force to another person. Accordingly, the threat of an assault is all that is required for an individual to be charged with assault. Actual injury or harm is not required for an act to be considered assault under the Criminal Code in Canada.
TYPES OF ASSAULT
This is the most basic type of assault in Canada. It is commonly referred to as “simple” or “common” assault. This is because it is the most common and the least serious form of assault. It refers to assaults where no weapon is used and no bodily harm is cause to the victim.
Depending on the severity of the incident, this type of assault can be prosecuted as a summary or indictable offence. Less severe forms of assault can be directly processed by a Judge without requiring a jury or a jail sentence. However, in severe cases, it may be treated as an indictable offence that may require a jury and carry a jail sentence.
ASSAULT CAUSING BODILY HARM
When an injury occurs or harm is suffered as a result of the application of force, a charge of assault can be elevated to assault causing bodily harm.
Section 2 of the Criminal Code defines the term “bodily harm” as “any 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”. Courts have held that an assault that causes any harm 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 under the Criminal Code.
Assault causing bodily harm is a hybrid offence, as such it is punishable as either an indictable or summary offence. If prosecuted as an indictable offence, the maximum penalty is 10 years imprisonment. If prosecuted as a summary offence, the maximum penalty is 18 months imprisonment.
ASSAULT WITH A WEAPON
Assault with a weapon requires that a person assault another person while carrying, using, or threatening to use either a weapon or an imitation of a weapon.
The term “weapon” is defined under section 2 of the Criminal Code as “anything used, designed to be used or intended for use; (a) in causing death or injury to any person or (b) for the purpose of threatening or intimidating any person.”
The weapon does not need to be the cause of the injury or harm to the victim for one to be charged with assault with a weapon under the Criminal Code. In Canada the Crown is only required to prove that the weapon was used in course of the offence and that the object was in fact a weapon.
If you are found guilty of this offence you could face up to 10 years in prison, if prosecuted as an indictable offence, or alternatively, a maximum of 18 months in prison if prosecuted summarily.
Aggravated assault is a more serious type of assault. It requires that a person commit an assault that wounds, maims, disfigures, or endangers the life of the complainant. Wounding another person requires only that the complainant’s skin is broken. A person can never consent to being subjected to an aggravated assault.
Given its seriousness, aggravated assault is an indictable offence that carries with it a maximum penalty of 14 years in prison if convicted.
ASSAULTING A PEACE OFFICER
The Criminal Code has a separate category for assaults against a “peace officer”. This considered a particularly serious offence and set out under section 270 of the Criminal Code. Depending on the circumstances, such an offence can be prosecuted as either a summary or indictable offence.
DEFENCES TO ASSAULT
Since every case is different, the best defence for an assault charge will vary depending on the facts surrounding the offence. There are several defences available for assault, but the following is a list of a few common ones:
To prove assault, the Crown must prove beyond a reasonable doubt that the person who claims to have been assaulted did not consent to the application of force by the accused person.
Consent may be expressed or implied. The circumstances of the assault will determine whether there was implied consent to the application of force. For example, in hockey game players’ consent to bodily contact and the risk of injury that is considered acceptable and falls within the rules of the game. As such, contact in hockey is usually not considered “assault”.
It is important to note that an individual cannot consent to bodily harm or aggravated assault. One may consent to a fight, but they cannot consent or give permission to significantly harm them (i.e. kill). Accordingly, if these offences are made out, the defence of consent is not available.
MISTAKEN BELIEF IN CONSENT
In circumstances where the Crown proves consent was not provided, the accused may still argue that they honestly believed the complainant consented to the application of force.
In Canada, individuals are justified in using or threatening a reasonable degree of force to defend oneself, a person under their protection or their property. The degree of force that is considered reasonable in the circumstances will depend on the facts surrounding the incident as well as other factors.
The penalty for assault can vary depending on the circumstances of the offence. The penalty can range anywhere from an absolute discharge to a jail term sentence. It is important to note that discharges, both conditional and absolute, are only available for simple assault.
Simple assault is a hybrid offence, so the Crown can elect to proceed summarily or by indictment. If the crown elects summarily, the maximum sentence for a simple assault is 6 months in jail. If the Crown proceeds by indictment, the maximum sentence is 5 years in jail. The Crown’s decision will depend on the seriousness of the allegations and the accused person’s criminal history.
Assault causing bodily harm or with weapon are generally considered to be more serious and the maximum sentences upon conviction are 18 months in jail if the Crown proceeds summarily and 10 years in jail if the Crown proceeds by indictment.
Aggravated assault is an indictable offences that carries with it a maximum penalty of 14 years imprisonment if convicted.
Assaults against a peace officer are mostly hybrid offences. If the crown elects summarily, the maximum sentence ranges from 6 months in jail and/or a maximum fine of $5000.00 to 18 months in jail depending on the charge. If the Crown proceeds by indictment, the maximum sentence is 5 to 10 years in jail depending on the charge. Aggravated assault against a peace officer is an indictable offence that carries a maximum penalty of 14 years imprisonment if convicted.. The Crown’s decision will depend on the seriousness of the allegations and the accused person’s criminal history.
If you or someone you know has been charged with an assault offence, contact Sack (Q.C.) and Bogle Law today for assistance.