Area of Law: Criminal Law
Answer # 1835
AssaultRegion: Ontario Answer # 1835
What is assault?
Assault, often referred to as simple assault, is where one person does something which is forceful or which threatens force to another person without their consent or permission. Under section 265 of the Criminal Code, assault can occur in any of the following three situations:
- Where one person intentionally applies force (directly or indirectly) to another person, without their consent,
- Where one person attempts to apply force, or threatens to apply force to another person. In these cases, the person making the attempt or threat must have the ability to carry out the threat, or must have caused the complainant to believe that he or she has the ability to do so, and
- Where a person approaches another person while openly wearing or carrying a weapon (even if the weapon is fake) and accosts or impedes another person (approaches them or stops them), or if the person with the weapon begs.
Contrary to what many people believe, to be charged and convicted of assault, there is no requirement of physical contact, or consequently, for the complainant to have sustained physical harm or injury.
There are many different kinds of assault under the Canadian Criminal Code, including assault with a weapon, assault causing bodily harm, aggravated assault, and several types of sexual assault. In addition, assault applies to violence between current or former spouses, common-law partners and dating partners. If you believe that you have been assaulted, you should call the police right away.
What has to be proved for a conviction?
To prove that a person is guilty of assault, the Crown prosecutor (the lawyer representing the government) must prove beyond a reasonable doubt the following elements of assault:
- Force was applied: The complainant had a legitimate, reasonable belief that the person was trying to harm them. Generally, words themselves do not constitute assault until the harm is manifested either physically or can be definitively perceived by the complainant. However, threatening words can result in being charged with the criminal offence of uttering threats.
- The complainant did not consent.
- The accused applied force on purpose: The assaulter intended to harm or create a state of fear in the complainant, and that the event did not occur by accident.
The three most common defences to a charge of assault are consent, self-defence, and accidental assault.
An important factor in determining whether assault has occurred is whether the alleged complainant consented to the force or threat.
If someone is charged with assault, they may be able to show evidence that the other person consented to being in the situation that caused them to be assaulted. In this case, it is up to the Crown prosecutor to prove beyond a reasonable doubt that the person who was assaulted did not consent. For example, in cases where the complainant did not resist the assault, it may not be that they had consented, but their inaction may in fact be due to a number of other reasons, such as the person was:
- traumatized by the force of the assault,
- put into a state of fear due to threats,
- lied to in some way, or
- that the assaulter was exercising their legal authority over the individual, such as in the case of the police.
In law, there are limitations to the defence that consent was given, such as:
- Consent to bodily harm cannot be given (a person cannot legally consent to being stabbed or gravely injured in a fight for example).
- Consent as a defence cannot be used when a person has been charged with other forms of assault, such as assault causing bodily harm, or aggravated assault.
Another defence to a charge of assault is self-defence. To be successful in proving self-defence, the accused must convince the Court that:
- He or she had reasonable grounds to believe that they were being assaulted; and
- Given the circumstances, the accused’s actions were reasonable.
In the case of self-defence, the proof of reasonableness is crucial. The Court will use a number of factors to decide if the actions of the accused were reasonable, such as:
- The nature of the force or threat used by the assaulter;
- The role of the complainant in the incident;
- Whether either the assaulter or the complainant was using or threatening to use a weapon;
- The physical differences between the individuals, such as size, gender, and physical capabilities;
- The relationship between the assaulter and the complainant; and
- Whether the force used in self-defence was proportional to the force used by the assaulter.
There are also situations where the physical contact was, in fact, an accident. Any unintentional application of force is not an assault, whether it is characterized as an accident, or simply the act of bumping into someone in a crowded hallway. In such cases, a person would not be guilty of assault because they did not have the required mental intention (called mens rea) to commit the assault.
It is the Crown Prosecutor’s responsibility to prove, beyond a reasonable doubt, that the accused intentionally applied force. For example, even in the case where an accused bumped into someone in a crowded hallway, and the complainant then suffered bodily harm, the Crown Prosecutor would still have to prove an intentional application of force.
Assault is a hybrid offence as the Crown prosecutor can choose, based on factors such as the seriousness of the actions and the harm caused, to treat the offence as a summary conviction or an indictable offence. If convicted on indictment, a person can be liable to imprisonment for a maximum of up-to five years.
If you have been charged with a crime, a criminal defence lawyer experienced in representing people charged with assault will understand when and how to defend an individual case. The penalties for assault vary widely. If you have been charged with assault, or any other crime, contact our preferred criminal defence experts:
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