Understanding Assault

A guide to the legal provisions and common defenses.

Criminal Code Provision

Everyone who commits an assault is guilty of

1. An indictable offence and is liable to imprisonment for a term not exceeding five years; or
2. An offence punishable on summary conviction.

Understanding Assault

In plain terms, assault refers to the intentional use, or attempted use, of force against another person without their consent. Assault does not necessitate actual harm; even slight unwanted contact (like pushing, grabbing, or spitting) can lead to criminal charges.

There are 3 primary ways in which assault can occur:

1. Direct Application of force: hitting or pushing someone.
2. Threats of gestures: raising a fist or making a motion to strike, while having the ability to carry it out.
3. Accosting while armed: approaching or impeding someone while carrying a weapon or imitation weapon.

What the Crown Must Prove

To prove a conviction of assault under s.266, the prosecution needs to demonstrate:

1. Application or threat of force: The Crown must show that the accused applied, attempted, or threatened to apply force.
2. Absence of Consent: The Crown must prove that the complainant did not consent to the contact or threat.
3. Intent: The Crown must show that the act was intentional, not accidental.

Consent in Assault Cases

Determining Consent is an imperative aspect of an assault charge. If a person voluntarily agrees to physical contact, that interaction is typically not considered a crime. However, the Consent must be genuine, informed, and should not be obtained through deception, intimidation, or coercion.

1. Express Consent: In this case, an individual explicitly consents to physical contact.
2. Implied Consent: Consent can be implied from a person’s behaviour or the circumstances. For example, everyday interactions, such as standing close on public transit or a tap on the shoulder to get someone’s attention, show that implied consent exists.

Landmark decision of Consent and Assault

In the case of R. v. Cuerrier, [1998] 2 S.C.R. 371, the accused, who was HIV-positive, engaged in sexual acts without notifying his partners of his status. The Supreme Court of Canada ruled that consent obtained through fraud is invalid. Since the complainants were not fully aware of the risk, their consent lacked legal validity. The court determined that this failure to disclose constituted fraud, rendering the sexual contact an assault.

This case signifies the importance of receiving express consent. Consent needs to be informed and voluntary. If vital information is concealed, the law may classify the act as assault.

Common Defences for Assault

Some common defences that can be proved include:

• Self-defence: The accused claims that the use of reasonable force was to protect oneself or others.
• Defence of Property: The accused claims that reasonable force was used to protect the property.
• Accident or lack of intent: The accused proves that the contact was unintentional.
• Charter Breaches: The accused alleges that Police misconduct occurred, which could potentially lead to evidence being excluded.

Sentencing for Assault

Assault is a Hybrid offence which can be punishable either:

• Summary Conviction: Maximum 2 years less a day in jail, fine up to $5,000. Other possible outcomes include:
  • Absolute Discharge: no conviction is registered.
  • Conditional Discharge: no conviction is registered, but conditions are placed and are required to be followed for a period of time.
  • Probation: includes reporting conditions, counselling or restrictions.
  • Fines: could be provided with or instead of a probation order.
• Indictable Offence: Maximum 5 years in prison.

It is important to note that sentences are influenced by the seriousness of the crime, injuries sustained, weapon usage, domestic circumstances, and the history of the accused. First-time offenders might get probation or a discharge. More severe cases could lead to incarceration.