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The Criminal Code offence of assault is essentially a merger of the common law offences of assault and battery. Battery involved the intentional application of force on another person, whereas an assault only comprised the offer or threat of force coupled with the apparent present ability to follow through with a battery. Naturally, these acts are commonly committed together and so we often understand the expression "assault and battery" to mean one tort or crime and not two. However, an assault could be committed alone, and so could a battery, for instance, when a person was struck from behind. The definition of assault is found in the Criminal Code of Canada at s. 265. It 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 list is not exhaustive and the definition would also apply to most homicide charges because assault is normally a constitute element of homicide.
Under the Criminal Code of
Canada definition, 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 causes 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.
Key
Elements: The three key phrases to the basic elements of the offence are
"without the consent," "intentionally" and "applies
force," even only apprehended force.
What
kind of force does the Criminal Code of
Canada refer to?: It is not necessary that the force used be harmful
as the strength of the force is immaterial. The force however must be offensive
or an affront to an individual's dignity. Thus spitting at someone would
constitute such a force, whereas tapping someone on the shoulder to get their
attention would not. Force does not have to be direct. It may be applied
through the medium of an instrument or weapon, even an animal, if commanded.
The force may even result from indirect action that by itself does not involve
the application of force as for instance when a chair is pulled away from a
person about to sit in it.
Intentionally
Applying Force, the Mental Element: The intentionality of the conduct
refers to the intention to apply force and not necessarily the intention to
apply force to a particular individual. A classic example of this
theory--called transferred intent--is when an offender intends to assault one
person, but accidentally assaults another. It does not matter who the intended
victim is, as long the offender applies force to an individual, it is still an
assault. This transferred intent doctrine may even apply when a person intends
to damage property, but ends up applying force to an individual. The accidental
application of force will not constitute an assault and in Ontario, it has been
held that the application of force resulting from a reflex action is not an
assault either. What is consent and when will it not negate an assault?:
Consent may be express or implied. It many instances, consent is implied and
this may be determined from the circumstances. However, according to s. 265, no
consent is obtained when by reason of
(a) the application of force to the complainant or
to a person other than the complainant;
(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.
These
are essentially fraudulently-obtained or forcefully-extracted consents and are
really no consents at all. Apart from these circumstances, even a valid consent
will not be a defence in many cases. For instance, no one may consent to being
killed or seriously injured and a consent to a fight does not normally imply
permission to inflict significant bodily harm. Thus where the offender intends
to cause harm or death, consent is not a defence. However, if contact results
in bodily harm, it is not an assault in this context if harm was not intended.
It should noted as well that for certain sexual offences involving under-age
complainants, consent is not a defence. When consent to the application of
force is present, it is normally implied rather than express. Implied consent
will have its limits and these will vary according to the situation. For
instance, in professional or amateur sports, implied consent is not necessarily
limited to contact within the rules of the game. If the conduct is within the
usual aspects of play and harm is not intended, consent is still implied. Thus,
for example, a slashing infraction in hockey or an illegal check are still
within the bounds of implied consent. As for threatened force--essentially the
common law offence of assault--mere words are not enough. For instance, a
person under restrained by the police, who yells out "I am going to kill
you" may be committing a criminal offence but it is not an assault: The
threatened individual can be under no apprehension that the other will carry
out the threat at that moment. However, absent such restraint and when coupled
with any kind of act or gesture, words may be enough for an assault if the
threatened individual has a reasonable basis for believing the threat is
imminent.
Defences:
Where the alleged offence may constitute a form of assault, we have
often two categories of defence commonly raised: Either the defendant
1) mistakenly believed the complainant consented to
the contact or
2) acted in self-defence, defence of another, or defence of property.
The
onus of proof is still on the prosecutor in the sense the defence merely has to
raise the issue by some evidence that suggests it.
Defence
of Mistaken Belief in Consent of the Complainant: The Criminal Code of Canada provides that
(4) 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.
This
direction applies even when a jury is not sitting: A judge must direct himself
or herself to consider the issue. However, the section does not require the
belief be reasonable. It is enough if there is an 'air of reality' to the
defence. However, if the alleged offence is a form of sexual assault, special
rules apply both to what is a valid consent and what kind of mistaken belief is
acceptable as a defence.
Defences
of Self-Defence, etc.: Although it appears that for the defence of
mistaken consent to arise, the defendant or accused must testify, this is not
so with the defences of self-defence, etc. This can be done without the defence
calling any evidence, but it is usual and even expected that the defendant or
accused will testify. Where the accused or defendant raises these defences, the
prosecutor must show their absence beyond a reasonable doubt. The law
recognizes that a person is justified in using force or threatening force in
certain circumstances, to protect either individuals or property. The basic
rule permits the use of force if the force is reasonable in the circumstances.
A person who is not an aggressor is entitled to use force against force as long
as it is not intended to cause death or grievous bodily and is no more than
necessary. However that rule applies to ordinary force and an individual may be
justified in using force that causes death or grievous bodily harm if he or she
acts under the reasonable apprehension that death or grievous bodily harm will
ensue. This rule even applies to an initial aggressor if the initial aggression
was not intended to cause death or grievous bodily harm. For all the
particulars of self- defence, defence of property, etc. see sections 34-42.
Elsewhere the Criminal Code of Canada
provides for other justifications for the use of force, including the power of
peace officers and others helping to carry out their duties or prevent the
commission of an offence or breach of the peace. See sections 25-33. As well,
we have protection for teachers and parents, ship masters and surgeons in
sections 43-45.