Assault
Criminal Defence
If you have been charged with assault, there are ways that you can defend yourself against them. Our criminal defense paralegals can help you understand what options are available to you and how best to proceed with your case so that you can get the result that's best for your life circumstances.
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Common Assault
If you've been charged with assault in Canada, you may be feeling afraid, confused, and out of your depth. You're not alone. But you can get through this—we'll show you how.
Assault is a criminal code offence under section 265 of the Canadian Criminal Code, with penalties ranging from fines to jail time. It's defined as any act that causes fear of imminent physical harm or death to another person.
But what does that mean exactly? Well, it could mean anything from shoving someone to pointing a gun at them to hitting them with a baseball bat. The key factor is whether or not the offender had the intention of causing bodily harm when doing so. If they didn't intend for bodily harm to occur but accidentally caused it anyway—like if they pushed someone into traffic without realizing it—then there would not be enough evidence for an assault charge.
If you have been charged with assault in Canada, we can help! We will do everything possible to defend your rights and ensure that the evidence against you is presented fairly and accurately so that justice can prevail in your case.
Assault Charges in Canada
There are several different types of assault charges in Canada. They are defined under the Criminal Code, and they can be very serious.
The most common type of assault charge is physical assault. This means that you have caused someone to fear for their safety or well-being, or have caused them to suffer bodily harm. Physical assault can also be called simple assault, which is a less serious offence than aggravated assault.
Aggravated assault is when the victim's injuries are severe or life-threatening. This includes things like broken bones or concussions, but also includes psychological trauma that lasts for months or years after the incident itself takes place (for example, if someone has PTSD from being assaulted).
Sexual assault charges are another type of criminal code offence that you might face if you've been accused of sexual misconduct toward another person without their consent. This can include groping or other unwanted touching; forcing someone into sexual acts against their will; and more serious crimes such as rape or child molestation.
If you've been charged with any kind of assault crime in Canada, it's important to hire an attorney who knows how these cases work so they can help defend you against them in court.
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Our team is here to help you with your legal issues. We have provided an overview of the types of cases we handle. In addition, we have provided a frequently asked questions page on our website.
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Common Assault
Some information that you should know about common assault.
Assault: What the Criminal Code States
Section 265 of the Criminal Code states,
"1. Without the consent of another person, he applies force intentionally to that other person, directly or indirectly.
2. He attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose.
3. While openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs."
Common Assault
People who apply force upon another person but do not injure them or only bruise them are likely to be charged with common assault, which is the lowest grade. Force is typically applied with hands, legs, and feet.
In assault, force is applied to a person intentionally or recklessly without their consent. A charge of assault is not necessary to result in physical injury. There are several different types of assault under Canadian criminal law, including simple assault, domestic assault, aggravated assault, assault with a weapon, and assault causing bodily harm. Our team at Cordaie Paralegal Services can assist you with simple assault and assault on a peace officer.
These elements must be proven beyond a reasonable doubt by the Crown prosecutor to secure a conviction for simple assault:
- How the assault occurred, the use of force, and the threat of force
- The accused can carry out the threat or that the accused has caused the other person to believe it
- The use of force or threat of force was intentional
- The victim did not consent to the assault
- The accused may be acquitted or found not guilty if injuries were alleged to have been sustained by the victim.
Assaulting a Peace Officer
Section 270(1) of the Criminal Code of Canada states,
"Every one commits an offence who
(a) assaults a public officer or peace officer engaged in the execution of his duty or a person acting in aid of such an officer;
(b) assaults a person with intent to resist or prevent the lawful arrest or detention of himself or another person; or
(c) assaults a person
(i) who is engaged in the lawful execution of a process against lands or goods or in making a lawful distress or seizure, or
(ii) with intent to rescue anything taken under lawful process, distress or seizure."
In the Criminal Code, assaulting a police officer is a very serious offence. In Canada, it is treated more seriously than other types of assault to maintain law and order. The Crown to prove that the police officer was acting in the course of their duties when the assault occurred to prove their guilt of assaulting a police officer. The goal is to deter offenders from acting violently against those who uphold the law.
Can an Assault Charge be Brought Without Physical Harm?
Intentionally applying force or even threatening force can lead to a charge of simple assault. Therefore, physical harm is not necessary to charge someone with assault. The act of pushing or light slapping can be considered assault, for example.
If You Accidentally Strike Someone, What Happens?
Assault charges require intent, so if the physical contact was accidental or reflexive, there can be no charge. Assaults in crowded areas, such as subway cars or concert venues, can be challenging to prove because of the possibility of accidental contact being presented.
Criminal Harassment: Possible Defences
Consent
- The Crown Prosecutor must prove beyond a reasonable doubt that the accused did not consent to the use of force by the accused.
- Force must be applied without the consent of the person allegedly assaulted to be convicted. Consent may be difficult to prove, but it depends on the situation and social circumstances.
- Consent to bodily harm does not exist. If there was an intentional application of force that caused serious bodily harm, consent cannot be used.
Self-defence
- In response to provocation, using "reasonable" force to protect oneself, a close family member, or property could be a valid defence.
- If the response is not proportional to the provocation, it is not valid.
- In these circumstances, you must provide evidence that you had reasonable grounds to believe that force was being applied against you or another person.
- The reasonableness of your actions will be determined by factors such as the nature of the force or threat applied against you, your role in the incident, the size, age, and physical capabilities of the people involved, the relationship between you and those involved, as well as whether you applied force proportionate to the force applied by your aggressor.
- As a general rule, this defence will fail if the force used was far greater than what you were attacked with.
Accident
- The defence of an accident can be raised if the assault was accidental.
- Any loss or harm caused by the accident must be proven to have been unintended and unexpected by the defence counsel.
- A Crown prosecutor must then prove beyond a reasonable doubt that the actions were not accidental.
What You Need to Do to Get Your Charges Dropped
You may be eligible for a diversion program or peace bond if you have been charged with assault. You must accept responsibility for your actions and complete a probation officer-designed program. The Crown will withdraw the charges against you if it receives proof that you have completed the program. In exchange for a peace bond, you must stay away from the victim's residence or workplace for one year, report to probation and attend court, and maintain good behaviour. The likelihood of being admitted to the Alternative Measures Program (AMP) or receiving a peace bond is reduced if you have been charged with assault with a weapon.
Obtaining a favourable resolution from the Crown requires anger management counselling or volunteering in the community immediately following an offence. Writing apology letters, enrolling in counselling, or doing other activities that show you are motivated to rehabilitate yourself, may suggest that you may be a good candidate for AMP or a peace bond. Due to the serious nature of aggravated assault charges, you are not eligible for a diversion program.
Avoid a Criminal Record with a Discharge
To avoid a criminal record with a discharge, we can try to persuade the prosecutor to join them in an application for a discharge. A discharge is a sentencing option that will allow you to avoid a criminal record after you have pled guilty to the offence, and if successfully obtained, you will be immediately and permanently discharged from the offence.
Other Sentencing Options
When facing an assault conviction, it is important to consider other sentencing options such as peace bonds, diversion, or discharge. If the evidence against you is strong, it may be beneficial to reach a pre-trial agreement with the Crown and enter an early guilty plea. If you are likely facing jail time, it is also beneficial to negotiate a proposed sentence with the Crown before trial. Some potential sentences that may be more desirable than a period of incarceration include a fine and probation, allowing you to serve your time in prison intermittently, or allowing you to avoid prison with a suspended sentence.
Penalties for Assault
A victim's injury is generally reflected in the penalty for assault. All assault convictions result in a criminal record, but the likelihood of jail time varies. A summary conviction carries a maximum sentence of two years less one day. Indictments are prosecuted with a maximum sentence of five years in prison.
Depending on the circumstances, we will see if your case can be dismissed. Usually, there are other options if that is not the case. A conditional discharge and community service may be available as an alternative to a criminal conviction when you plead guilty. If you do not have any previous criminal history, this is more likely to happen.
In the case of assault, the Crown Prosecutor can choose between an indictment or summary conviction. You can be imprisoned for up to five years if the Crown proceeds by indictment. A summarily convicted person can spend a maximum of six months in prison. An aggravating or mitigating factor will heavily influence the severity of the penalty, which is largely determined by the circumstances of the offence.
If convicted, aggravated factors can lead the judge to impose a harsher sentence because they increase the moral culpability of the offence. There are several mitigating factors, such as the fact that this was your first offence, the fact that it was an isolated incident and you are unlikely to re-offend, or the fact that you have completed community service or gone to counselling after the incident. Your sentence may also include a prohibition on firearms and weapons. During this prohibition, you will not be able to own or possess firearms or weapons.
Frequently Asked Questions
Here are answers to some common questions.