What is an assault?
The definition of assault is given in the Criminal Code at section 265. An assault occurs when a person intentionally applies direct or indirect force to another person without the other person’s consent. An assault can also occur where no force was used, but a person attempts or threatens to intentionally apply direct or indirect force to another. Any amount intentional touching may constitute an intentional application of “force”. However, in some cases, assault charges are dismissed because the amount of forced used is minimal.
The application of force must be intentional. Accidentally hitting someone does not necessarily constitute assault, for example, reactionary reflex may not constitute an assault. Likewise, accidental touching that occurs due to hard braking in a crowded bus may not lead to an assault conviction.
However, accidentally hitting one person in the process of the accused person attempting to hit another person is not a defence to assault. It does not matter who the intended target is, as long the offender intended to apply force to any individual, it is still an assault.
What are some defences to assault?
Consent:
For the Crown to prove assault, it must prove that the application of force was done without the consent of the party to whom the force was applied. Consent may be expressly given or implied. In many cases, consent is implied and this factor can be determined by circumstances surrounding the application of force.
Relationship amongst individuals may give rise to an “implied consent” , for example, intimate partners in a longstanding relationship or athletes during a high contact sports events. Also, there is an implied consent to pat your friends or shake hands with a stranger. However, consents obtained by fraudulently or threats are vitiated.
In addition, our criminal law does not recognize consent as a defence in in killing or bodily harm. Hence, when the offender intentionally causes, bodily harm or death, consent is not available as a defence.
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 complainant had consented to the application of force. An honest but mistaken belief in consent could be a defence to an assault charge.
Self-Defence:
Our criminal law does recognizes that a person is justified in using force to protect either themselves, their property or others. The key consideration is whether the force used is reasonable in the circumstances. Whether the use of force is reasonable is very fact specific and dependent on a number of factors. The details of self-defence are provided in a different article.
What are the penalties?
The maximum jail sentence for assault is either two years less one day where the Crown prosecutes the case by summary conviction or five years’ if the Crown proceeds on indictment. If a non-citizen is found guilty and convicted, this person may also face negative immigration consequences, such as deportation for non-citizens.
Consulting a criminal assault lawyer will assist you with identifying potential defences to this type of allegation. Call Jake at 647-390-1131 for a consultation about your case.