How to Defend Assault Charges

Assault is the essential element of a number of related criminal offences. These offences are listed in the Criminal Code in order of seriousness – common assault, assault with a weapon causing bodily harm, and aggravated assault. In addition to these, there are parallel assault offences when committed against a police officer. They carry with them the possibility of a heavier penalty. Furthermore, there are corresponding assault offences with a sexual element – sexual assault; sexual assault with a weapon, using threats or causing bodily harm; and aggravated sexual assault. According to the Criminal Code, Assault can be committed in any one of the three following ways: s.265(1) 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.

Along with the act, there must be a corresponding intent. The required intent varies depending on the way in which the assault occurred. For example, assault committed through the application of force to another person [s.265(1)(a)] requires intent to apply the force.

Common Assault is an Assault without any additional element that would make the offence more serious, such as a weapon being used to carry out the Assault, the Assault causing a serious injury to the other person, the Assault being carried out against a police officer, etc. All that is required is that the elements of Assault, under s.265(1) of the Criminal Code are met. There are three possible ways for Assault to be committed:

  1. When a person applies force intentionally to another person without that person’s consent
  2. When a person, by an act or gesture, threatens or attempts to apply force to another person. This person must also have OR cause the other person to believe on reasonable grounds that he or she has the ability to carry through on the threat.
  3. When a person accosts or impedes another person, or begs, while openly wearing or carrying a weapon or an imitation of a weapon.

Intentional application of force – s.265(1)(a) – is the most common way Assault occurs. Any intentional touching can constitute “force” and is enough to fulfill the requirement of the offence. Assault can also be Domestic in nature which influences how the offender is prosecuted. However, less aggressive applications of force may result in less serious sentencing. The “force” can be direct touching or indirect, such as by throwing an object at another person. Furthermore, the application of force must be intentional. Touching someone as a result of a reflex action does not constitute an Assault. The intention has to be to apply force to a person; it does not matter if a different person is struck from the specifically intended person. If the alleged Assault occurs by attempt or threat – s.265(1)(b) – there must be something more than mere words. The required elements are that the accused made a threat intentionally by act or gesture, and he or she had ability to carry out that threat. Whether the accused actually intended to carry out the threat is irrelevant.

Having a complete understanding of the Elements of the Criminal Offence, Your Rights and the Consequences associated with a Criminal Record is necessary before any legal decisions are made.

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Legal Information

Frequently Asked Questions

What is Assault with a Weapon?
What is Assault Causing Bodily Harm?
What is Aggravated Assault?
What is Self-Defence?
What are Some of the Penalties for a Conviction of Assault?
Is there a Difference if I am charged at a Club or in the Toronto Entertainment District
What is a s.109 weapons prohibition?
What is a s.110 weapons prohibition?
What is a s.487.051 DNA Order?
What is a Peace Bond?
What is the difference between a s.810 Peace Bond and a Common Law Peace Bond?
What happens if I breach a s.810 Peace Bond?

Additional Resources

Assaulting a Peace Officer
Sexual Assault Law in Canada
Consequences of a Criminal Record
Domestic Abuse
First Offenders
Immigration Consequences
Keeping Charges Private
Travel & US Waivers
Vulnerable Sector Screening
Elements of a Crime
Your Rights

What is Assault with a Weapon?

Assault with a Weapon occurs when a person commits an Assault (described above) while carrying, using or threatening to use a weapon or an imitation of a weapon. Assault with a Weapon is more serious than a Common Assault, and therefore carries with it a higher possible sentence. According to the Criminal Code, s.2, a Weapon means: “Any thing used, designed to be used or intended for use

  • in causing death or injury to any person, or
  • for the purpose of threatening or intimidating any person.”

In some cases, courts have found that a beer bottle and dog to be a Weapon for the purpose of this offence. A firearm is a Weapon. “Using” a firearm includes pulling out a firearm and holding it to intimidate another person. Sometimes, a person who pulls out a firearm to intimidate another person is charged with both Assault with a Weapon and Possession of a Weapon for Dangerous Purpose (Criminal Code s.88). However, if the charge relates to the same event, the person cannot be convicted of both offences for the same incident.

What is Assault Causing Bodily Harm?

When a person commits an Assault, and the Assault causes bodily harm to the other person, he or she can be charged with Assault Causing Bodily Harm. This offence carries with it a higher possible penalty than Common Assault. The Criminal 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.” First, there must have been an Assault (the requirements are described in question 1) and Bodily Harm. The type of bodily harm required for a conviction varies, but the threshold is generally not very high. For example, cuts to the body or serious bruising would likely meet the definition of Bodily Harm. More serious injuries would likely be prosecuted under a charge of Aggravated Assault. Next, the Assault must have caused the Bodily Harm in question. For example, in an incident where a person strikes another person and the punch causes a cut, the standard is met. Or where a person is pushed and falls down, causing a fracture, the standard would also be met. There are a number of cases however, where the court deemed that the Assault did not cause the Bodily Harm. For example, in one case an accused slapped the victim, which led the victim to lunge at the accused, fall and hurt himself. The court in that case found that there was not enough of a connection between the Assault (the slap) and the injuries sustained. In addition to causing an injury, it must have been foreseeable that an injury would be caused by the action. For example, punching someone and causing a cut or bruise would meet this standard. Most cases would meet this requirement.

What is Aggravated Assault?

Aggravated Assault occurs where a person “wounds, maims, disfigures or endangers the life” of the victim (Criminal Code s.268). If one or more of these elements result from an Assault, an Aggravated Assault is made out. “Wounding” involves breaking of the skin. For example, a stabbing would fall under “wounding” and would be prosecuted as an Aggravated Assault. “Maiming” means to injure a person to the extent that they are less able to fight, such as breaking a person’s leg. “Disfigurement” requires a more than temporary marring of the figure, appearance or beauty of the person, to a significant extent. For example, a black eye would likely not be enough to meet this definition, but a significant scar on the face would. “Endangerment of life” must involve an actual and significant risk to the life of the victim, but does not necessarily have to result in physical harm. For example, in one case, a male who was aware of his HIV infection had unprotected sex with two females. The court found that it was not necessary to establish whether the victims actually contracted HIV. The court determined that all that is required to meet the standard of “endangerment of life” is that the accused exposed his victims to an actual and significant risk to their lives once the assault was completed. In another case however, the court found that a person who made stabbing motions with a knife towards the chest of a police officer did not commit Aggravated Assault. Even though the court found that this action had the potential of endangering the police officer’s life, it did not result in endangering the officer’s life once the Assault was completed. Unlike the previous case, there was no risk to the officer’s life once the assault was completed; the officer was not stabbed and no injuries could develop after the assault.

What is Self-Defence?

Self-defence is a possible defence or justification to the use of force. If it is successfully made out, the person will be found not guilty of the offence that he or she is charged with. According to the Criminal Code, three elements must be established for a claim of self-defence to be successful:

  1. The person charged must 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;
  2. The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from the use or threat of force; AND
  3. The act committed is reasonable in the circumstances.

The last element is the most complex. The court will consider a number of factors in determining whether the act with which the person is charged was reasonable in the circumstances. Some of these factors include:

  1. The nature of the force or threat.
  2. The extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force.
  3. The person’s role in the incident.
  4. Whether any party to the incident used or threatened to use a weapon.
  5. The size, age, gender and physical capabilities of the parties to the incident.
  6. The nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat.

f.1) Any history of interaction or communication between the parties to the incident.

  1. g) The nature and proportionality of the person’s response to the use or threat of force.
  2. h) Whether the act committed was in response to a use or threat of force that the person knew was lawful.

Once the court considers all of these factors, and any other relevant factors, it will determine whether the accused’s act was reasonable in the circumstances and therefore whether his or her use of force was justified. If the force was reasonable, and was used in defence of oneself or another person, the accused will be found not guilty.

What are Some of the penalties for a Conviction of Assault?

  • Common Assault?

Common Assault can proceed as an indictable offence or as a summary conviction. If the case proceeds as an indictable offence, the maximum penalty is five years’ imprisonment. If the case proceeds as a summary conviction, the maximum penalty is a fine of up to $5000, two years less a day imprisonment, or both. The Crown decides whether to pursue the case as a summary conviction or an indictable offence. This decision is based on a number of different factors, such as the seriousness of the offence. In both cases, the Criminal Code only imposes a maximum penalty. The actual sentence given depends on many different factors. For example, whether the offender is a youth and/or first offender, circumstances of the offence, factors relating to the victim, the effects of the offence, etc.

  • Assault with a Weapon?

Like Common Assault, Assault with a Weapon can be prosecuted either by summary conviction or as an indictable offence. The Crown decides how to pursue the case depending on a number of factors, especially those relating to the seriousness of the offence. If prosecuted as an indictable offence, the maximum penalty is 10 years’ imprisonment. If prosecuted by summary conviction, the maximum penalty is 18 months’ imprisonment.

  • Assault causing Bodily Harm?

Assault causing Bodily Harm carries with it the same maximum penalties as Assault with a Weapon. If prosecuted as an indictable offence, the maximum is 10 years’ imprisonment. If prosecuted by summary conviction, the maximum is 18 months’ imprisonment.

  • Aggravated Assault?

Aggravated Assault is solely an indictable offence (it cannot be prosecuted by summary conviction) and therefore has the highest maximum penalty. The maximum sentence is 14 years’ imprisonment.

Is there a Difference if I am Charged at a Club or in the Toronto Entertainment District

  • Are allegations in the entertainment district prosecuted differently?

The Toronto Entertainment District has a zero-tolerance policy for violence. Assault offences are prosecuted more aggressively as a result. Allegations of Assault in the Entertainment District often involve multiple parties, generally without criminal records. People involved in incidents are also often charged with mischief and Assaulting a Peace Officer for resisting arrest.

  1. What is the background of the typical offender charged with assault in the Toronto Entertainment District?

The typical offender is often in his or her early twenties with no prior criminal record. Nearly everyone charged is a first-time offender.

  1. Do they have special bail conditions?

There are some common bail conditions involved with charges of Assault in the Entertainment District. In addition to normal bail conditions often associated with Assault, there is commonly a zone restriction around the downtown core in Toronto, where the offender is prohibited from entering. These are strict conditions and can be easy to breach without proper precautions.

What is a s.109 weapons prohibition?

Under s.109 of the Criminal Code, there is a mandatory prohibition on the use and possession of weapons and ammunition, in addition to any other punishment set by a court for any of the circumstances described in this section. The pertinent circumstances include:

s.109(1)(a) if a person is convicted or discharged of an indictable offence that involved (used, threatened or attempted) violence against a person; and if that offence carries with it a maximum penalty of 10 or more years. For example, if a person is convicted of Assault causing Bodily Harm as an indictable offence, this section would apply to impose a mandatory weapons prohibition on the accused.

s.109(1)(d) if a person is convicted or discharged with an offence that involves use of a weapon and that person is was prohibited from possessing that weapon at the time of the offence. For example, where a person commits Assault with a weapon for which he or she does not have a license to possess, there would be a mandatory weapons prohibition under s.109. An order under s.109 prohibits the person from possessing any firearm, crossbow, ammunition and any other listed weapons. If the offence relating to the order is the person’s first such offence, then the minimum duration of the order is 10 years after release from imprisonment or if there is no imprisonment, then 10 years after the conviction or discharge. If it is not the person’s first offence, then the weapons prohibition will be for life.

What is a s.110 weapons prohibition?

Like a s.109 weapons prohibition, a s.110 order prohibits the person from possessing a firearm, crossbow, ammunition and other listed weapons. Unlike the mandatory s.109 order however, a s.110 order is discretionary. This means that it is up to the court whether or not to impose such an order. It applies where the offence is one that involves violence (used, threatened or attempted) and is not covered by s.109. It can also apply where the offense involves a firearm, cross-bow, a weapon that is prohibited or restricted by the Criminal Code (such as brass knuckles), ammunition, or explosive substance, and the person was NOT prohibited from possessing it at the time of the offense. For example, any Assault with a Weapon involving a firearm would trigger the s.110 provision. If s.110 is triggered, it is up to the court to determine whether to impose a weapons prohibition on the accused. In order to do so, the court must consider whether a weapons prohibition is in the interest of the safety of the accused or any other person. If the court determines that such an order is not necessary, it needs to give reasons for why it came to this decision. If the court does deem a s.110 order necessary, the prohibition can last for a maximum of 10 years after the person’s release from imprisonment, or if there was no imprisonment, 10 years after the person’s conviction of discharge. Once the order is made, the person generally has to forfeit his or her weapons to the Crown and is not allowed to possess any of the listed weapons for the duration of the order.

What is a s.487.051 DNA Order?

Under s.487.051 of the Criminal Code, a judge shall make an order authorizing the taking of bodily substances for DNA tests from a person who has been convicted, discharged, or found guilty as a young offender of any offence included in the list of “primary designated offences”. Among the included offences are: Assault Causing Bodily Harm, Assault with a Weapon, and Aggravated Assault. A court may also make a DNA order for Common Assault, but only if the prosecutor (Crown) is seeking one. The order is made at sentencing, and the purpose is to submit the DNA samples to a National DNA Data Bank. The National DNA Data Bank was created in 1998 to assist police with criminal investigations. A DNA order varies according to its specific terms. Generally, the order can authorize a peace officer to take bodily substances by: plucking individual hairs from the person, swabbing the person’s lips, tongue and inside cheeks of the mouth, or taking a blood sample. A court may refuse to grant a DNA order in limited circumstances. The person against whom the order is sought can argue that the impact on their privacy and security of the person would be grossly disproportionate to the aim of the order. Specifically, if the intrusion on the person’s privacy and body would be so disproportionate to society’s interest in the proper administration of justice, to the extent that any concerns cannot be ameliorated by variations of the order, the court is not required to make a DNA order. The factors that a court might consider include the nature of the offense, the nature of the intrusion to the person, and the circumstances of the person who would be subject to the intrusion. However, this is often a very high standard to meet and in most cases, the balance is in the favour of making a DNA order. There is a presumption that taking a DNA sample is justified, and only unusual cases would warrant the court’s refusal.

What is a Peace Bond?

A Peace Bond is an order made by a court for the purpose of protecting the safety of a person or the public. A Peace Bond is ordered against a person who is believed to be likely to commit a crime, but has not necessarily already committed one. It is therefore largely a preventative measure. Sometimes, however, it is ordered as an alternative to a conviction, if the offence is a minor one. A Peace Bond requires the person against whom it is made to be on good behaviour and keep the peace. Aside from this general condition, the Peace Bond can come with several specific conditions, including:

  • To have no contact with the person seeking the Peace Bond, or other persons (e.g. spouse, child).
  • To not visit the person seeking the order, his or her spouse or child.
  • To not call the person.
  • To not write letters to the person or send text messages.
  • Abstain from alcohol and (non-prescription) drugs. This condition may also require the person to provide bodily samples.
  • Prohibition of possessing weapons.
  • Pay a refundable cash bond to the Court, which would be forfeited to the Court if the person breaches a condition of the peace bond.
  • Any other condition the Court considers desirable to prevent harm.

What is the difference between a s.810 Peace Bond and a Common Law Peace Bond?

A s.810 Peace Bond can be sought by a person who has reasonable grounds to fear for his or her own safety, the safety of their spouse, child, or partner, or to fear damage to his or her property. As such, it can only be ordered if a person or someone on that person’s behalf applies for it. On the other hand, a common law Peace Bond can be sought by the Crown or can be imposed by the Court as part of its judgment for another offence. Another difference is that the s. 810 Peace Bond has a maximum term of one year. A common law peace bond can be set for a longer time period.

What happens if I breach a s.810 Peace Bond?

Breaching a term of a s.810 Peace Bond is punishable as a criminal offence – Breach of Recognizance. Although having a Peace Bond does not result in a criminal record for that person, it may if a term is breached. Depending on the severity of the breach, it can be prosecuted as either an indictable offence or on summary conviction. If prosecuted as an indictable offence, the maximum punishment is 2 year’s imprisonment. A summary conviction has no prescribed maximum sentence and would likely result in a more lenient sentence.

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