Assault

As set out in the Criminal Code, a variety of acts or actions may be considered assault. An individual commits an assault when:

1. Intentionally uses force, directly or indirectly, against another person without their consent;
2. Attempts or threatens to use force against another person, and the person has reasonable grounds to believe that he or she is in danger;
3. Ostensibly carries a weapon or imitation weapon.

In addition to the use or threat of use of force, a person’s consent will be vitiated when he or she is a victim of fraud or abuse of authority. An individual’s consent cannot be passive, it must be manifested explicitly, such as through behaviours or words demonstrating clear and informed consent.

The different types of assault

Assault

Simply meeting the following four elements may be enough to define an act as a common assault: force, intent, lack of consent, and knowledge of the lack of consent.

In other words, common assault can be any force used without the consent of another. Simply causing pain or spitting on a person can constitute assault. Indeed, one can be a victim of assault even without having an apparent injury.

A person who commits such an act is guilty of either a maximum penalty of 5 years or an offence punishable on summary conviction.

Summary conviction, commonly referred to as a summary offence, includes crimes of lower objective gravity, not requiring a jury or indictment. What is considered a summary offence will vary depending on the act itself.

Assault with a weapon

Armed assault is the carrying, use or threat to use a weapon or an imitation weapon. A person who commits an assault with a weapon is guilty of a maximum sentence of 10 years.

Assault causing bodily harm

Examples of assault and bodily harm are choking, suffocating or strangling a person. If the victim has suffered deep fractures or cuts, this may constitute assault causing bodily harm as well.

A person who commits the assault causing bodily harm is guilty of a maximum sentence of 10 years.

Aggravated assault

A person commits aggravated assault when he or she wounds, maims, disfigures or endangers the life of another individual. Anyone who commits this crime is liable to imprisonment for a term not exceeding 14 years.

Elements of an assault

An assault will be recognized as criminal if it meets the following criteria: actus reus and mens rea.

For example, sexual assault is assault , where the perpetrator intentionally and hostilely touches another person without their consent. The actus reus at issue is non-consensual touch, and mens rea is defined as the perpetrator’s intention to touch the victim despite his knowledge of the lack of consent.

Consequences of assault charges

Avoiding a criminal record for assault

Defences

Section 265 of the Criminal Code provides for the defence of an accused’s belief in consent. This defence allows the accused to try to prove that he believed that the complainant had consented to the acts on which the charge is based. For example, an accused of sexual assault may argue that the complainant consented to the act. However, some crimes do not allow the accused to raise this defence. Indeed, in the Jobidon decision, the Supreme Court explains that a person cannot consent to be beaten.

Other examples of possible defences are: lack of credibility of prosecution witnesses, exculpatory version of the client, and more.

Conditional or absolute discharge

The judge has the power, limited by several constraints, not to convict a person, even if he or she has been convicted, if he or she considers that this option is in the best interests of the accused, as well as in the public interest.

If the discharge is conditional, the judge will impose certain conditions on the accused. If the discharge is unconditional, no conditions will be imposed.

If you have no criminal record, our criminal lawyers will carefully prepare your case to present the necessary arguments for you to obtain a discharge.

The link with civil law

In criminal law, threatening to use force is an assault. In contract law, the fear of serious harm caused by violence or threat by another party or to its knowledge is recognized as a defect of consent, and can therefore lead to the nullity of a contract.

As a result, in both criminal and civil law, threats are discouraged.

It is important to be represented by a competent criminal lawyer when you are charged with assault.