Assault in Canada
Jenessa May
Assault charges are common in Canadian courts, and the consequences can be severe. The offence of assault includes anything from threatening conduct to physical conduct with another person, and the penalties range from a conditional discharge to 14 years in jail. An assault charge will stay on an individual's criminal record indefinitely which can affect their ability to travel to the U.S., rent a home, volunteer, or pursue careers in teaching, childcare, or medicine. If you have been charged with assault, speak to an experienced defence lawyer at Pyzer Criminal Lawyers and request a free case consultation. We will help explain your charges and the likelihood of success.
In Canada, there are three main levels of assault in the Criminal Code:
Level 1: Common Assault
Level 2: Assault causing bodily harm/Assault with a weapon
Level 3: Aggravated assault (wounding, scarring, maiming, disfiguring, or endangering life of victim)
Penalties for Different Assault Offences in Canada
Criminal Code Offence Indictable Conviction Summary Conviction
Assault s. 266 Maximum 5 years Available
Assault causing bodily harm/assault with a weapon s. 267 Maximum 10 years Available
Aggravated assault s.268 Maximum 14 years Not available
Assaulting a peace officer s. 270 Maximum 5 years Available
Assaulting peace officer with weapon or causing bodily harm s. 270.01(1) Maximum 10 years Available
Aggravated assault of peace officer s. 270.02 Maximum 14 years Not available
Sexual assault s. 271 Maximum 10 years if complainant over 16 years old Maximum 14 years if complainant is under 16 years old Maximum 18 months if complainant over 16 years old Maximum two years less a day if complainant is under 16 years old
Our recent article on mandatory minimum sentences for sexual assault lists the minimum and maximum sentences for all other sexual assault offences.
Indictable and Summary Convictions
Under the Criminal Code, criminal offences are either listed as an indictable offence, a summary offence, or a hybrid offence (either indictment or summary). In hybrid offences, such as assault and assault causing bodily harm or assault with a weapon, the Crown prosecutor has to decide whether to proceed by way of indictment or summary conviction. To determine which way to proceed, the Crown attorney will consider the seriousness, severity, and circumstances of the particular offence. Indictable offences carry a longer penalty and are typically laid when the assault or circumstances of the assault are more severe. For instance, if the victim was severely hurt and the accused has been convicted of assault before, the Crown will likely proceed by way of indictment. On the other hand, summary offences are less severe and therefore the penalty is less than being found guilty of an indictable offence.
Assault and assault causing bodily harm or with a weapon are considered hybrid offences in the Criminal Code, which means the Crown can elect to prosecute the accused by way of summary offence or by an indictable offence.
Aggravated assault, on the other hand, is strictly an indictable offence which means the Crown prosecution will seek a jail sentence if the accused is found guilty.
What is Assault?
Common assault is found under section 265(1) of the Criminal Code and is the intentional use of force, either directly or indirectly, against another person without their consent. Along with pushing, slapping, and punching, face-to-face verbal threats may also result in an assault charge under section 265(1)(b) of the Criminal Code. The British Columbia Court of Appeal concluded that under s. 265(1)(b), "mere words will not constitute an assault" (R v Dawydiuk, 2010 BCCA 162). Specifically, assault is committed without making physical contact when the accused "threatens by an act or gesture to apply force to another person if he has, or causes that person to believe on reasonable grounds that he has, present ability to effect his purpose" (R v Horner, 2018 ONCA 971). Further, "the offence under s. 265(1)(b) is the threat to apply force to another, not the application of force" (R v Bernard, 1988 SCR 833).
Criminal Code Definition of Section 265(1):
A person commits a common assault when:
without the consent of another person, applies force intentionally to that other person directly or indirectly;
they attempt or threatens, by an act or a gesture, to apply force to another person, if they have, or causes that other person to believe on reasonable grounds that they have, present ability to effect their purpose; or
while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
The offence of assault applies to all forms of assault including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
The word "intentionally" in the Code has been interpreted by the Supreme Court to mean "not done by accident or through honest mistake" (R v Bernard, 1988 SCR 833).
What are the Penalties for Assault?
The sentencing time for assault will vary depending on the amount of force used in the assault, and other factors surrounding the offence. Read our article on what is the sentencing time for assault to learn more about potential sentences.
Section 266 of the Criminal Code sets out the penalties for common or simple assault. It states:
Every one who commits an assault is guilty of:
an indictable offence and is liable to imprisonment for a term not exceeding five years; or
an offence punishable on summary conviction.
If the Crown proceeds by way of an indictable offence, the accused is liable to a prison term not exceeding five years. That means a court has the discretion to sentence the accused to no jail time, or to a maximum of five years in jail. Typically, if the Crown proceeds by way of indictment, they are asking the court for a prison sentence. If the Crown proceeds by way of summary conviction for a common assault, the accused is liable to a fine not more than $5,000, and/or to a maximum prison term of six months.
Can I get a Conditional Sentence for Assault?
Section 742.1 of the Criminal Code allows the sentencing judge to consider a conditional sentence (CSO) for common assault. A conditional sentence allows the accused to serve their sentence in the community instead of jail.
If an accused is found guilty of assault under section 266, the following dispositions are also available to the sentencing judge:
S. 730: Discharge
S. 731(1)(a): Suspended Sentence
S. 731(1)(b): Stand-alone Fine
S. 718.3, 787: Custody
S. 731(1)(b): Custody and Probation
S. 734: Custody and Fine
What Does the Crown Need to Prove to be Found Guilty of Assault?
The Crown prosecution has to prove the following three elements beyond a reasonable doubt:
That the accused applied force to another person;
That the other person did not consent to having the force applied to them; and
That the accused applied the force to another person on purpose.
What is Assault Causing Bodily Harm or Assault with a Weapon?
Assault with a weapon or causing bodily harm is a more severe assault than common assault, and it carries a higher penalty. Waving a knife or a firearm or other type of weapon, or using an object to strike someone can constitute assault with a weapon. Even if a weapon was not used in the commission of the offence, simply having a weapon on your person while you committed an assault may result in more severe charges.
The Code defines bodily harm as "any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature."
Under section 267 of the Criminal Code, an individual commits assault with a weapon or bodily harm when they commit an assault and:
carries, uses or threatens to use a weapon or an imitation thereof,
causes bodily harm to the complainant, or
chokes, suffocates or strangles the complainant.
What is Considered a Weapon?
Anything that can cause injury is considered a weapon if it is designed to be used or intended to cause death or injury, or used to threaten, intimidate, or strike a person. That means the most benign objects, for instance, a coffee cup or cell phone, can be considered a weapon for the purposes of assault under the Criminal Code.
What are the Penalties for Causing Bodily Harm or Assault with a Weapon?
Assault causing bodily harm or assault with a weapon are hybrid offences. If the Crown proceeds by way of an indictable offence for assault with a weapon or causing bodily harm, the maximum penalty is 10 years in jail. If the Crown elects to proceed by way of summary conviction, the general penalty is a maximum of two years less a day in jail, and/or a fine of not more than $5,000.
If an individual is found guilty by way of indictment for the offence of assault causing bodily harm and/or assault with a weapon, a conditional sentence is not available. Similarly, aggravated assault does not allow the sentencing judge to consider a conditional sentence.
Aggravated assault is found in section 268(1) of the Criminal Code and involves wounding, maiming, disfiguring or endangering the life of a person during an assault.
What are the Penalties for Aggravated Assault?
Aggravated assault is always an indictable offence, and the maximum penalty is 14 years in jail. To determine the length of imprisonment, the judge will consider the level of injury the accused inflicted, as well as circumstances surrounding the offence.
Sexual assault is a serious crime in Canada, and, if convicted, the accused faces a prison sentence up to 14 years. An assault committed in a sexual nature will lead to a sexual assault charge. The penalty for sexual assault will depend on:
The amount of force used in the assault;
Whether a weapon or firearm was used;
The age of the complainant;
Criminal history of the accused; and
Mitigating and aggravating factors.
Sexual assault, specifically, is found under section 271 of the Criminal Code. Our recent article explains the difference between sexual assault offences, and lists the mandatory minimum sentence penalties for sexual assault.
Domestic assault is not specifically listed in the Criminal Code. Assault is considered domestic assault when the assault occurs within the context of a domestic relationship. Domestic assault is considered more serious than a common assault, and the penalties are more severe. Learn more about sentencing for domestic assault charges.
Possible Defences for Assault Charges
If the accused is claiming they acted in self-defence, the burden is on them to show it is more likely that they assaulted another person because they needed to protect themselves.
Section 34 of the Criminal Code states that a person is not guilty of an offence if:
they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
the act committed is reasonable in the circumstances.
Defence of Consent
If consent is given from the other party, assault is not considered criminal. For example, a consensual fist fight is not necessarily an assault because the parties are consenting to physical contact from one another.
Section 265(3) of the Code states that for the purposes of assault under section 265, no consent is obtained where the alleged victim submits or does not resist by reason of:
(a) the application of force to the victim or to a person other than the victim;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.
Honest but Mistaken Belief in Consent
The Criminal Code under section 265(4) states the following regarding an accused's belief as to consent:
Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief.
That means that if the accused honestly, but mistakenly, believed the other party had given consent, the accused may use this as a defence. If you are making this defence, you are confessing to committing an assault. The criminal law is complex and perplexing. Do not try to deal with it by yourself. If you are charged with any kind of assault, contact us at Pyzer Criminal Lawyers to get the best outcome.
Contact Pyzer Criminal Lawyers
See what our clients are saying about us.
How Common is Assault?
The following table from Statistics Canada shows incidents of simple assault in Canada from 2018-2020:
Actual Incidents 170,138 188,186 177,580
Rate per 100,000 population 459.02 500.58 467.25
Unfounded Incidents 19,986 (10.51%) 21,367 (10.20%) 18,056 (9.23%)
Total Cleared 125,984 Cleared by charge: 80,486 Cleared otherwise: 45,498 125,616 Cleared by charge: 86,389 Cleared otherwise: 39,227 117,905 Cleared by charge: 81,021 Cleared otherwise: 36,884
Total Persons Charged 72,379 77,846 72,534
Total Adult Charged 67,472 72,777 68,985
Statistics for Assault Level 2, weapon or bodily harm
Statistics 2018 2019 2020
Actual Incidents 54,218 59,704 64,807
Unfounded Incidents 1,573 (2.82%) 1,745 (2.84%) 1,692 (2.54%)
Total Cleared 40,206 Cleared by charge: 32,805 Cleared otherwise: 7,401 41,973 Cleared by charge: 35,619 Cleared otherwise: 6,354 45,908 Cleared by charge: 38,973 Cleared otherwise: 6,935
Statistics for Assault Level 3, aggravated assault
Actual Incidents 3,584 3,973 3,817
Rate per 100,000 population 9.67 10.57 10.04
Unfounded Incidents 49 62 48
Total Cleared 2,949 Cleared by charge: 2,822 Cleared otherwise: 127 3,211 Cleared by charge: 3,099 Cleared otherwise: 112 3,089 Cleared by charge: 2,958 Cleared otherwise: 131
Total Persons Charged 3,078 3,375 3,208
Total Adult Charged 2,825 3,079 2,974
If you have been charged with assault, contact a criminal defence lawyer right away. Pyzer Criminal Lawyers have the devotion and expertise necessary to defend your charges.
Summer Student and JD Candidate
Jenessa is completing her Juris Doctor degree at the University of Ottawa where she will graduate in 2022. Originally from Kelowna, she completed her undergraduate degree at the University of British Columbia Okanagan with a major in psychology and a minor in sociology.
starmap-markerphonetwitterlinkedin linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram