What is Assault and What are the Defences Against it?

In Canada, assault is triable as a criminal offence. Assaults vary not just in specificity but in severity too. The gravity of the punishment depends mainly on the kind of assault. This blog outlines the legal meaning of assault, its kinds, prospective criminal liabilities if found guilty, and the defences available against the charge of a criminal assault. 

What is the Legal Definition of Assault?

As per Section 265 (1) of the Canadian Criminal Code, a person commits an assault when:

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly, 

(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or cause that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or 

(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

In simple terms, assault in Canada ranges from an actual act of force to a mere threat of using force against someone without their consent. Such forceful commission of an act can be either direct or indirect. To establish criminal liability in cases of assault, the Canadian Criminal Code has expanded the ambit of the term assault even to include threatening acts and gestures.  Additionally, the legitimacy of the threat does not define the act of assault. It also does not necessarily have to cause physical harm or injury. A mere threat of assault would suffice a charge of assault. 

What are the Different Kinds of Assault?

The Canadian Criminal Code has laid down various kinds of assault. Each kind differs in terms of penal liabilities and gravity. Assault being a Crown elect indictable offence, can be prosecuted either by summary conviction or indictment. Some of the common kinds of assault are listed below:

What is a Common/Simple Assault?  

It is the most ordinary kind of assault with relatively minor or no injuries. On being charged with summary assault, the maximum jail sentence is six months. However, a prosecution for indictment can lead to a jail term of up to five years.

What is Aggravated Assault?

It is the most severe kind of assault in Canada. It involves wounding, maiming, disfiguring, or endangerment of another person. Owing to its gravity, this offence, in particular, is always prosecuted as an indictable offence. Criminal liability for aggravated assault includes severe penalties and up to 14 years of imprisonment.

What is Assault Causing Bodily Harm? 

If an alleged assault results in causing physical harm or injuries to the victim, the accused is charged with an offence of causing bodily harm. The accused can face jail time of up to 18 months for the charges if tried summarily. However, an indictable prosecution for assault causing bodily harm can lead to imprisonment of up to 10 years. 

What is Assault with a Weapon?  

Unlike simple assault, the charge for assault with a weapon establishes when a person uses, carries, injures, or threatens to injure someone using a weapon. If prosecuted as a summary offence, the maximum punishment is 18 months. In case, tried as an indictable offence, the maximum imprisonment is up to 10 years. 

What is Sexual Assault?

A sexual assault charge can cover an extensive range of allegations that violates the sexual integrity of a victim. Based on the severity of the offence, a summary conviction has maximum imprisonment of up to 18 months. However, if the defendant is under 16, the accused can face imprisonment up to two years less a day. Additionally, an indictable offence has maximum imprisonment of up to 10 years. Whereas the term of imprisonment can extend up to 14 years in case, the defendant is under 16. 

Can Spitting or Coughing Amount to an Assault?

The pandemic has brought a new kind of assault to the legal dictionary. During the pandemic, intentionally spitting or coughing at someone can be considered an assault under the Public Health Act for allegedly attempting to infect another individual. Recent instances show that the accused are charged with several counts of assault for intentionally coughing or spitting at someone with the intention to infect others with Covid-19. 

What Defences are Available Against the Charge of Assault?

Being charged with assault can be an overwhelming experience for the accused and their family. Therefore, it is essential to take the allegations of any assault seriously, as the penalty upon conviction may include fines and imprisonment. Some of the significant defences available against the charges of assault are listed below:  

1. Consent – The definition of assault includes using force against another person without their consent. Therefore, negating the non-consensual use of force is crucial to making a reasonable defence. It is a good defence if the accused can prove that the other party had consented to use force. 
2. Self-defence – It is easier to defend the charges of assault once the accused establishes the use of force as a part of the act of self-defence. To take advantage of this defence, the accused has to prove that his act of using force was nothing but an attempt to protect himself or any other person against an imminent assault from the other party. 
3. Lack of Criminal Intent – Another option to defend the charges of assault is to prove the lack of criminal intent of the accused. The accused can take advantage of this defence by establishing that using force against another person was an accident or unintentional. 

Facing an Assault Charge in Canada?

If you are charged with assault, you must not face the charges on your own. Instead, we recommend that you contact a criminal defence lawyer of good standing. Let the seasoned team of Shory Law help build the best defence, avoid potential implications, and save you from getting a criminal record. If you have any questions or want to speak to a lawyer, call us at (403) 216-1199, our team provides free consultations.