The Criminal Code, in section 265, provides the definition of assault. An assault takes
place when an individual intentionally applies direct or indirect force to another person
without obtaining their consent. An assault can also occur if a person attempts or
threatens to intentionally apply direct or indirect force to another individual.
Causing harm to someone is not a prerequisite for an assault to occur. An individual may
commit an assault even without exerting any degree of strength or power while touching
the victim. However, the force applied must be offensive or an affront to an individual's
dignity. In some cases, a push or pinch may be adequate to establish a criminal assault.
How much force is necessary to commit an assault?
Any intentional touching may qualify as an intentional application of "force."
A violent or forceful contact is not essential to support a conviction for assault. Some
cases are dismissed due to the minimal force used. Instances of past assault charges being
dismissed for minimal force include pushing the complainant to exit an office, where there
was minor contact during a heated domestic dispute, or incidental physical contact during
a disagreement with a parking control officer.
The application of force must be intentional. Accidentally hitting someone during an
epileptic seizure, for example, would not constitute an assault. Similarly, touching that
occurs due to the normal jostling in a crowded bus is an example of unintentional or
accidental force application that will not lead to an assault conviction.
A reflex action does not amount to assault.
However, accidentally hitting one person in an attempt to hit another is not a defense to
assault. It does not matter who the intended victim is; as long as the offender intended to
apply force to any individual, it is still considered an assault.
What are some defences to assault?
Consent:
To establish an assault, the Crown must demonstrate that the accused person applied
force without the consent of the affected party. Consent can be either expressly given or
implied, often discerned from the circumstances surrounding the offense.
Social contexts can create instances of "implied consent" to physical contact. For instance,
in longstanding relationships or during sporting events, there may be a degree of implied
consent. It's crucial to note that the doctrine of implied consent does not extend to police
officers investigating an offense, and intentional touching of an officer constitutes an
assault.
In typical social interactions, there is an implied consent for actions like patting a co-
worker on the back or shaking hands with a relative stranger. However, consent obtained
through fraud or forcefully extracted is considered invalid.
Furthermore, consent cannot be given to actions leading to death or serious injury.
Agreeing to engage in a fight does not imply permission to cause significant bodily harm.
Therefore, if the offender intends or causes substantial harm or death, consent is not a
valid defense against assault charges.
Mistaken Belief in Consent:
Even if the Crown proves that consent did not actually exist, it is still available to the
defendant to argue that they honestly believed the aggrieved party had consented to the
application of force. An honest but mistaken belief in consent will 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 their 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.
Consequences of an assault conviction
Being found guilty of an assault charge carries significant consequences, including a
criminal record and the possibility of incarceration. The maximum jail sentence for assault
is either two years less one day (summary conviction) or five years (indictment).
The severity of the harm suffered often influences the penalty. The court may impose a
lesser sentence, such as probation with counseling or a fine, for less serious assault
allegations. It's also possible to be found guilty of assault without receiving a criminal
record by being discharged under the Criminal Code.
GET FREE LEGAL
Consultant
Reach out to us now to schedule a complimentary legal consultation and let our experienced team provide you with the guidance you need.