Criminal Assault in Canada
Kenneth W. Golish, Criminal Defence

Criminal Assault in Canada

Please note the disclaimer that nothing in this site constitutes legal advice.  If you would like to have a consultation, please contact me.

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.