Assault

Assault / Common Assault - S. 265 / S. 266 of the Criminal Code of Canada

Summary of the Offence

What is a charge of assault under the Criminal Code?

Common Assault - s. 265
Assault under s. 265 of the Criminal Code is also referred to as “common assault.”

A person commits an assault when they directly or indirectly, intentionally or recklessly apply force to another person or threaten to apply force without that person's consent.

Assault is defined in s. 265 of the Criminal Code and applies to all assaults, including sexual assault (see page on Sexual Assault).

Assault with a Weapon - s. 267(a) and Assault Causing Bodily Harm - s. 267(b) and (c)
Section 267 of the Criminal Code makes it an offence to assault another person with a weapon or to cause bodily harm through assault. This includes suffocating, choking, or strangling an individual.

How Serious is the Offence?

The offences of common assault, assault with a weapon, and assault causing bodily harm are considered “hybrid” offences. This means the Crown may choose to proceed either by indictment or summarily, depending on the facts and circumstances of the case.

A summary offence is generally less serious in terms of both the nature of the crime and the severity of the sentence. In contrast, an indictable offence typically involves more serious crimes and more severe sentences.

Examples of Common Assault

• Throwing an object
• Slapping
• Punching
• Blocking someone's way

Elements of the Offence

Section 265 of the Code reads:

(1) A person commits an assault when:

(a) without the consent of another person, they intentionally apply force to that other person, directly or indirectly;
(b) they attempt or threaten, through an act or gesture, to apply force to another person, if they have, or cause the other person to believe on reasonable grounds that they have, the present ability to carry out the threat; or
(c) while openly wearing or carrying a weapon or imitation thereof, they accost, impede, or beg from another person.

To secure a conviction for assault, the Crown must prove beyond a reasonable doubt both the actus reus (guilty act) and mens rea (guilty mind).

The Guilty Act (Actus Reus)

The Crown must prove that you:

• Directly or indirectly applied force to another person
• Attempted or threatened to apply force to another person
• The other person did not consent

There must be an act or gesture for the offence of assault; words alone are not sufficient. However, physical contact is not necessary for an act to constitute assault. For example, standing in a doorway during a tense discussion, clenching your fists, and saying, “You're not going anywhere” could constitute an assault (R. v. Cadden, 1989 CanLII 2847 (BCCA)).

Consent and its Limitations:
‍Section 265(3) of the Code outlines situations where consent is not valid:

(a) force was applied to the complainant or someone else;
(b) threats or fear of force were used;
(c) there was fraud; or
(d) authority was exercised improperly.

A consensual fight is not always an assault. For example, in R. v. Jobidon (1991 CanLII 77 (SCC)), the accused was acquitted of manslaughter at trial because the victim had consented to the fight. This case established that in order for consent to be vitiated it “requires serious harm both intended and caused”.

The actus reus of assault with a weapon is the same as common assault, with the added element of using or threatening to use a weapon.

The actus reus of assault causing bodily harm also aligns with common assault but requires that the victim was hurt or injured during the assault. Canadian courts have consistently held that if an injury interferes with the victim’s comfort in a way that is more than momentary, it can be considered bodily harm. In certain cases, psychological harm may also constitute bodily harm.

The Guilty Mind (Mens Rea)

The Crown must prove that:

• The application of force was intentional
• You knew the other person did not consent

The Crown must prove beyond a reasonable doubt that the other party was not consenting.

Possible Defences

• Consensual Fight: If the physical altercation was mutually agreed upon, you may assert this defence. However, if serious bodily harm occurred, consent may be invalidated.
• Self-Defence: Using force in response to a threat or actual use of force is permissible when the force used is reasonable. To claim self-defence, you must have genuinely believed, on reasonable grounds, that you were threatened and your response was necessary and proportionate.
• Defence of Another: If you used force to protect another person from an unlawful attack, this could be a valid defence, provided you did not intend to cause death or serious injury.
• Defence of Property: Under s. 35 of the Criminal Code, this defence may apply if you used reasonable force to protect your property or prevent trespassing or damage.
• Charter Arguments: Violations of your Charter rights (whether intentionally or unintentionally) during arrest or investigation could lead to the exclusion of evidence that the prosecution intends to use. 

Possible Punishment if Convicted

Common Assault - s. 265

• If Proceeded Summarily: A conviction may result in up to two years less a day in jail and/or a fine of up to $5,000.
• If Proceeded by Indictment: A conviction could result in up to five years in prison.

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