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ASSAULT CHARGES

What is assault?

In its most common form, assault is unwanted touching between one person and another person. The classic example is a punch or slap. However, an assault can also be a threat to touch if the threatener has the immediate ability to carry out the threat (e.g. you cock your arm back into a fist in anger, run over to a person and stand right over them, but don’t actually strike).

What are the different degrees of assault?

  1. simple assault;
  2. assault with a weapon;
  3. assault causing bodily harm; and
  4. aggravated assault.

This list shows assault variations in escalating order. Simple assault is much less serious than aggravated assault. Having said that, though, the police and Crown Attorney’s take simple assaults seriously, especially in a domestic context.

1 This article describes non-sexual assaults. For sexual assaults click here »

What are defences to assault causing bodily harm and aggravated assault?

Defences for these offences are narrower than other offences because consent is no longer a defence. That is because a person cannot consent to bodily injury in Canada. Therefore the defences are:

  1. self-defence;
  2. defence of property;
  3. it never happened; and
  4. the injury did not occur.

It is also possible to argue that bodily harm was not foreseeable based upon the actions taken by an accused, however, this is a very technical argument.

What are defences to simple assault?

Defences available to simple assault are:

  1. consensual fight;
  2. self-defence;
  3. defence of property;
  4. de minimis; and
  5. it never happened.

What are defences to assault with a weapon?

The defences for assault with a weapon are virtually the same as simple assault with the exception that a fifth option is available: it wasn’t a weapon or the weapon wasn’t used.

DEFENCES

Consent

There is no assault without a lack of consent. Meaning, you only have an assault if there is no consent. If there is consent, no assault.

How can consent be raised? Usually consent arises in the context of a mutual agreement to participate in exchanging blows (e.g. both people strike one another, were angry with each other).

Is consent removed if one person comes out the “victor”? No.

Defence of person

This defence is a complete defence if doubt raised about it. This defence is governed by section 34 of the Criminal Code of Canada. To establish it, an accused must essentially act reasonably in repelling force being applied to themselves or another person.

E.g. someone hits you in the face, you block it and strike back and they fall down the stairs

An example that likely would not succeed is you get punched in the face, you block it, walk away, pull out a gun and shoot the person who struck you.

Defence of property

This defence is also a complete defence. It requires the lawful control over property and use of force is used to preserve that lawful possession or use. Once again, the force applied must be reasonable in the circumstances.

This defence is governed by s. 35 of the Criminal Code of Canada.

De minimis

This defence is rarely successful. What it means is the nature of the assault is so minor that it doesn’t rise to the level that ought to be criminalized. The judicial trend in Canada reveals that even minor assaults are criminal behaviour.

However, the defence does sometimes succeed. An example might be:

A man grabs a woman’s arm to lead her out of a store, she initially doesn’t want to go, but quickly acquiesces and follows him (she is not dragged, but lightly pulled).

Assault never happened

This defence is not really a defence. What is being alleged by the defence is that the crime was never committed, the accused should be acquitted because the Crown can’t prove the crime.

How this “defence” is used

The following are arguments made by the defence that essentially claim the assault never happened:

  1. “it wasn’t me”;
  2. s/he is lying.

“It wasn’t me” – identification defence

The Crown Attorney has to prove that an assault was committed by the accused. If a reasonable doubt is raised about identification than the accused is found not guilty.

Proving identification can sometimes be very easy and other times quite difficult. Often the context determines whether identification will be an issue.

E.g. an assault alleged between two spouses will likely not have identification as an issue because the parties know each other and have for a long time. However, assaults between strangers after the bar closes in dimly lit streets might very well provide a reasonable basis to raise identification as a defence.

S/he is lying

This ‘defence’ is raised most often when it is obvious who the parties are and who was present at the relevant time. It is very common for the various witnesses to have completely different versions about what transpired.

E.g. yes I was there that night and yes we were having an argument, however I never hit her. She said she would call police and claim I hit her if I didn’t give her the house.