Assault in the Criminal Code of Canada

Assault is defined in the Criminal Code of Canada as applying force to another person without their consent, or attempting or threatening to do so.

The charges vary in seriousness. They can range from common assault (Section 265 of the Criminal Code) to aggravated assault (Section 268 of the Criminal Code). The severity depends on the amount of harm caused, the accused person’s intention, and the situation of the event.

The type of assault you are charged with determines the potential legal jeopardy you face.

Charges of assault can be laid even if there is no physical violence involved. All you need is the intent to use force.

To charge someone with assault, you need to demonstrate that they are capable and willing to carry out a threat. The victim should also expect that you will actually use physical force as you intended.

The classic definition in criminal law specifies that for an offence of assault to be established the court must find beyond a reasonable doubt:

• That the accused applied force directly or indirectly to the complainant  AND
• That the accused intended to apply force  AND
• That the complainant did not consent to the application of force by the accused

If the court is not convinced beyond a reasonable doubt of each of these factors, the accused will be found not guilty.

Types of Assault

Assault can come in different forms, varying from minor incidents to serious physical harm, which can result in summary or indictable convictions in Canada.

The basic definition of assault applies to the subcategories of assault including Sexual Assault, Assault with a Weapon, Assault Causing Bodily Harm, and Aggravated Sexual Assault. The lawyers at Mickelson & Whysall can assist you on these more serious versions of assault.

Recognizing the type of assault is essential in assessing potential legal consequences.

Simple Assault

This is the least serious type of assault charge. It involves intentionally applying force to another person without their consent.

This crime doesn’t need physical harm. Charges can happen even if there’s an attempt or threat to use force, without actually using force.

Assault with a Weapon

This charge involves using a weapon or an imitation of a weapon to commit an assault. A “weapon” can mean anything used to cause harm, from a knife to a baseball bat.

Using a weapon in an assault has worse consequences than a regular assault, and can result in a longer prison term.

Assault Causing Bodily Harm

This charge applies when the attack causes harm or injury to the victim. The harm or injury must affect the victim’s well-being or comfort. You must also consider it as more than just temporary and insignificant.

These injuries can include physical discomfort that is long lasting, significant bruising, or fractures.

Assault causing bodily harm can lead to either a summary conviction, carrying a maximum penalty of 18 months’ imprisonment, or an indictable conviction, with a potential maximum sentence of ten years.

Aggravated Assault

This is the most severe type of attack. It occurs when an attack causes harm, damage, alters appearance, or endangers the victim’s life.

Aggravated assault often can result in severe legal consequences, including lengthy prison sentences.

Domestic Assault

Domestic assault involves the use of force within the same household or among current or former intimate partners. Domestic assault is not its own crime, but it can make punishments worse than regular assault when sentencing occurs.

It’s important to note that the Crown rarely withdraws domestic assault charges, even if the victim wishes to do so.

– Read the article on what to do when you face charges of domestic assault

Assaulting a Peace Officer

In cases involving assaults on Peace Officers, the basics of assault (simple, weaponed, violent, or aggravated) remain unchanged. Charges occur when the victim is a Peace Officer or someone aiding them in their lawful duties.

To be charged with assaulting a Peace Officer, the officer must have been acting within their authority. For example, if someone assaults an Officer during an unlawful arrest, the act is not considered as assaulting a Peace Officer.

Assaulting a Peace Officer can be treated as a summary or indictable offense, depending on the severity. Summary convictions can lead to up to 18 months in prison, while indictable convictions can result in up to five years.

Attacking a police officer with a weapon or causing injury is a hybrid offense. The punishment can be up to 18 months if charged less seriously, or up to 10 years if charged more seriously. The worst charge, attacking a police officer, is very serious and can lead to a maximum jail term of 14 years.

Sexual Assault

Sexual assault is any non-consensual sexual contact, that can range from unwanted sexual touching to forced sexual intercourse. Sexual assault encompasses any form of assault that violates the sexual integrity of the victim.

– Read about the consequences of being charged with sexual assault.

– Have you been charged with Sexual Assault charges? Read how Mickelson and Whysall defend them.

– Do you want to know more? We wrote a separate artcle on the sexual assault and consent. You can read it here.

The definition of Assault in the Criminal Code has been expanded by Parliament to include acts that typically precede the application of force and could otherwise be viewed as Uttering Threats.

The expanded definition of assault includes an attempt or threat by act or gesture to apply force. The lawyers at Mickelson & Whysall can assist you with understanding whether the circumstances of your case amount to an assault.

Words without a gesture will not constitute an assault. However, if proven that the complainant reasonably believed that the accused had the ability to follow through on the gesture, that constitutes an assault. For example, a person who raises their hand at another and says “I’m going to smack you” will have committed an assault only if the complainant believed on reasonable grounds that the accused had the ability to follow through. An assault has also been committed when an accused either accosts or impedes a person while openly wearing a weapon or imitation weapon. The lawyers at Mickelson & Whysall will help you find the best defence for your case.

Conviction of assault

On a conviction for assault prosecuted by indictment, the maximum penalty is five years imprisonment. When prosecuted summarily, the maximum punishment for assault is six months imprisonment and a fine of five thousand dollars. The lawyers at Mickelson & Whysall can explain to you whether you are being prosecuted summarily or by indictment and assist you with understanding the jeopardy you face.

Our lawyers are well equipped to represent you both in trial as well as advocate for you to have your charges dropped pre-trial.

Ways our firm can assist you include

Assessing the Evidence:

We will carefully review the prosecution’s evidence, identifying weaknesses and inconsistencies for a strong defense.

Challenging Evidence:

If needed, your assault lawyer can dispute evidence by filing motions to exclude illegal or improper information.

Building a Strong Defense:

We will use their legal expertise to create a solid defense, which may include countering the prosecution’s case, presenting evidence, and making legal arguments.

Negotiating for Options:

If the evidence is strong, our lawyers may negotiate with the Crown Prosecutor for reduced charges or alternative sentencing.

Providing Support:

Your assult lawyer will guide you through the legal process, ensuring you understand your rights and stay informed about your case.