Assault

Assault allegations are very serious. If convicted, you will receive a criminal record and the potential consequences are far-reaching, including potential jail time. A criminal record can impact your chances of finding employment, your ability to travel, and other issues. Assault is defined in the Criminal Code under s. 265(1) as being when a person (a) without the consent of another person, applies force intentionally to that other person either directly or indirectly, (b) attempts or threatens, by an act or a gesture, to apply force to another person if they have, or causes the other person to believe on reasonable grounds that they have, present ability to effect their purpose; or (c) while openly wearing or carrying a weapon or an imitation weapon, accosts or impedes another person or begs.

TYPES OF ASSAULT CHARGES

Within the Criminal Code, there are different classifications of assault charges. These include:

1. Simple Assault: Defined under s. 266 of the Criminal Code, this it the most common assault charge. An individual is charged with simple assault when no weapons are used and when there is no bodily harm caused to the victim.
2. Aggravated Assault: Under s. 268(1) of the Criminal Code, this is a more serious form of assault that involves wounding, maiming, disfiguring, or endangering the victim’s life. The application of force goes beyond what is typical and the penalties are therefore more severe if convicted.
3. Assault With A Weapon: This form of assault occurs when a weapon or imitation weapon is used in the commission of the offence. It is included under s. 267 of the Criminal Code. It is important to note that a weapon can include any object, not just a knife or a firearm.
4. Assault Causing Bodily Harm: Also covered under s. 267, this form of assault occurs when physical form causes physical harm to the victim.
5. Assault A Peace Officer: This offence is defined under s. 270(2) and occurs when assault is committed on a peace officer. A peace officer is defined broadly in Canada and includes uniformed police officers and prison guards, as well as members of public office or enforcement groups.
6. Sexual Assault: Sexual assault occurs when there is an application of force in a sexual nature without the consent of the victim. It is defined under s. 271 of the Criminal Code.

WHAT THE CROWN HAS TO PROVE

To be convicted of assault, the Crown Attorney has to prove beyond a reasonable doubtthat you actually did the act you are alleged to have done and that you intended to do that act. If the Crown is able to prove both, you will need to show the court that you had a legal justification for your actions in order to be found innocent.

POTENTIAL DEFENCES

Common defences to assault allegations can include a lack of intent, unproven identity, consent, or acting in self defence. Provocation is not a defence to assault, although it could mitigate the sentence imposed upon conviction. In Canadian law, a defence of provocation is only available with respect to murder charges where the defence could reduce a charge to manslaughter under s. 232(1) of the Criminal Code.

If attempting to invoke a defence of lack of intent, the Crown must prove beyond a reasonable doubt that the actions were not accidental. Any loss or harm caused by the accident must be proven to have been unintended and unexpected by the accused.

When invoking consent as a defence, the Crown must prove beyond a reasonable doubt that the complainant did not consent to the use of force by the accused. Consent may be difficult to prove, especially when there is bodily harm is involved, but it depends on the situation and social circumstances. Consent cannot be used in any of the situations outlined in s. 265 (3) of the Criminal Code. This section states that no consent is obtained where the complainant submits or does not resist by reason of:

• The application of force to the complainant or to a person other than the complainant;
• Threats or fear of the application of force to the complainant or to a person other than the complainant;
• Fraud; or
• The exercise of authority.

SELF-DEFENCE AS A DEFENCE TO ASSAULT

A claim of self-defence may be possible under s. 34 of the Criminal Code if you were acting in self-defence or to protect someone else. The Supreme Court of Canada established the criteria for using this defence in the case of R. v. Khill, 2021 SCC 37. You must be albe to demonstrate the following:

• You reasonably believed that force or the threat of force was being used against  you;
• Your intention in responding to the threat was to safeguard yourself or another person; and
• The actions you took were reasonable considering the circumstances.

When determining whether your actions were reasonable in the circumstances, factors such as the nature of the force or threat applied against you, your role in the incident, the relationship between yourself and those involved, proportionality of the force applied, and the physical capabilities of the aggressor will be considered. As a general rule, this defence will fail if the force used was far greater than what you were attacked with.

HOW WE CAN HELP

Paralegals in Ontario are able to represent you before the Ontario Court of Justice if you are charged with simple assault under s. 266 and/or assault a peace officer under s. 270(2) of the Criminal Code and the Crown elects to proceed summarily. Until the Crown elects to proceed by way of summary conviction, a hybrid offence is deemed to be indictable (Interpretation Act, s. 34(1)(a)). If you are accused of any other form of assault or the Crown is proceeding by way of indictment, you need to seek the advice of a licensed lawyer.

It is important to understand that the available defences are unique dependent on your specific case. Glass Gavel Law has the experience to review your case and work with you to put forward the best possible defence for your case. Contact Us or call 1-833-344-2835 for a free 30 minute consultation today.