What is an assault?
An assault can occur in a few ways. One way for an assault to occur is when a person intentionally applies force to another person. The force can be applied directly or indirectly. The person must have applied the force to the other person without that other person’s consent.
A second way an assault can occur is if a person attempts to apply or threatens to apply force to another person by way of an act or a gesture. Simply saying you will harm a person is not enough to form as an assault – there must be an act or gesture that accompanies it. For an attempt or a threat to constitute assault, the person must currently have, or must cause the other person to believe on reasonable grounds that he currently has, the ability to cause the harm that he is threatening or attempting.
A third way for assault to occur is if a person, while openly wearing or carrying a weapon or an imitation weapon, accosts or impedes another person or begs.
Applicable Legislation – Criminal Code, 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.
What is the maximum penalty for assault?
The maximum penalty for assault depends on whether the prosecutor proceeds by way of indictment or by way of summary conviction. If the prosecutor chooses to proceed by indictment, the maximum penalty is five years in jail. If the prosecutor chooses to proceed by summary conviction, the maximum penalty is six months in jail and/or a $5,000 fine.
There is no mandatory minimum penalty for assault.
Applicable Legislation – Criminal Code, s. 266
- Every one who commits an assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on summary conviction.
What defences are available for an assault charge?
In order for an assault to have occurred, the application of force must have been without the complainant’s consent. If there was implied or explicit consent to the force, this will serve as a defence against an assault charge. However, the law states that no one can consent to being seriously injured or killed. If serious injury or death occurs as a result of the applied force, the defence of consent will not apply.
Self-defence may also serve as a defence to an aggravated assault charge. However, the harm avoided by committing an aggravated assault must be proportional to the harm caused by the aggravated assault. Because aggravated assault, by its definition, results in serious injury, the harm avoided must have been serious as well. For more information, see our page on self-defence. (insert self-defence hyperlink)
Take the next step
If you have been charged with assault causing bodily harm, your best approach to the situation is to consult with effective legal counsel. Lakin Afolabi is a criminal defence lawyer in Windsor, Ontario, who has successfully defended many individuals charged with assault causing bodily harm. Contact him today for a consultation.
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