What is an Assault?
Many people believe that assault refers only to a violent physical attack. In fact, the word assault is used in law to describe a number of different actions with a wide range of seriousness.
Under the Criminal Code, an act can be considered an assault even if there is no actual physical contact. However, words alone cannot be an assault. There must also be a gesture or some other action that leads to harm or the threat of harm.
An assault can include any of the following acts...
intentionally applying force to a person, such as hitting, poking or shoving them
attempting to apply force to a person, whether or not actual contact is made
threatening with an act or gesture to apply force to another person, causing them to believe they are in danger
carrying a weapon, or what appears to be a weapon and blocking another person's way, accosting them or begging
A Question of Intent
There must be a deliberate action or intention to either use force or threaten force against someone else. For example, accidentally bumping into someone may be applying force to that person but because there was no intention to harm or threaten harm, it is not considered an assault. Similarly, if force is applied because of a reflex action, such as a sudden movement when startled, there is no assault.
A Question of Degree
To prove an assault it is not necessary to show that there was actual force used or that the victim was physically harmed. There may be some cases where the use of force is so minor, that a court may find that no assault occurred. For example, in one Saskatchewan case, a person was charged with assault after he pushed someone aside in order to get out of his office. However, the court decided that even if an assault occurred, it was of such a minor, insignificant nature that it did not need to be dealt with in court. In this case, the accused person was acquitted.
A Question of Consent
In some circumstances, it is possible to consent to an action that otherwise might be considered an assault. Suppose that two people agreed to engage in a wrestling match with each other. Each will apply force to the other person. However, because they have agreed to the force that will be applied against them, no assault has occurred.
Another example might be where someone enters a sporting event, such as hockey or football. Even though a body-check or tackle involves the use of force against another person, people who participate in these sports agree to such contact as a recognized part of the game.
But, in the case of sporting events, the body contact must fall within the accepted standards of the game. In deciding whether someone has consented to the use of force against them in a sporting context, the court will consider such things as...
common or expected practices of game participants in general
the nature and extent of contact expected by the specific participants
the degree of force or contact actually used in a given instance
the risk of serious injury from the conduct in question
The force that is being consented to must be within reasonable limits, and not meant to cause serious injury. So, if someone purposefully tries to injure a sport opponent, they cannot claim that the other person consented to the risk.
Consent cannot be forced or coerced. It is not consent if an assault victim merely goes along with something - a fist-fight, for example - in which they feel there is no practical choice to "opt out." The consent must be given freely, with a full understanding of the risks involved.
Defences to a Charge of Assault
Even if there has been a deliberate use of force against another person without their consent, some circumstances may excuse the action and provide a defence to a criminal charge of assault. Self-defence may be the most well-known of these.
A person who is assaulted may defend themselves by using some force against the person attacking them. However, there are two major limitations to the use of force. First, the amount of force used in self‑defence must be reasonable, and no more than necessary to deal with the perceived danger. Secondly, the person who claims they were acting in self-defence cannot have done anything to provoke the attack. In other words, they cannot "set up" an assault on themselves as an excuse to strike back at another person.
Similarly, reasonable force can be used to protect other people who are under your protection. This would include close family members or others that have a close relationship with you. Reasonable force can also be used to prevent a crime. This would allow an unrelated bystander to intervene to protect an assault victim or to prevent serious property damage or loss.
A property owner can use reasonable force to protect their property. For example, a homeowner is allowed to act in order to keep someone from breaking into their home, or to remove a trespasser. Generally, personal property also can be reasonably protected by its owner. However, when protecting property, a person cannot hit or cause bodily harm to the individual trying to take the property. If the person trying to take the property refuses to give the item up after the owner has laid hands on it, the thief is deemed to have committed an assault.
The Criminal Code provides protection for a teacher, parent or someone who acts in the place of a parent when they use physical force to correct a child under their care. This section of the Criminal Code has been the subject of much debate over the years and has been considered by the Supreme Court of Canada. In considering the section, the court placed limits on when and how force can be used. They decided that spanking teenagers or children under the age of two, hitting a child in the head, or using objects like belts or rulers are actions that go too far. They ruled that this Criminal Code section does not justify "outbursts of violence against a child motivated by anger or animated by frustration." But the court also recognized that the section was necessary to protect a parent or caregiver as they could otherwise be charged with assault for doing something like placing an unwilling child in a chair for a five-minute time-out.
What is Not a Defence
Compulsion is not a defence to an assault charge. This means that someone accused of assault cannot claim that they were forced to commit the assault by a third person. Also, an accused cannot claim that they did not know what they were doing, and lacked the mental ability to commit the crime because they were drunk at the time.
What Happens after a Conviction?
The Criminal Code sets out different penalties for assault convictions, depending upon the circumstances. An assault, without any special circumstances, carries a maximum sentence of five years imprisonment.
Assaulting a peace officer could also bring a maximum sentence of five years imprisonment. The charge of assaulting a peace officer includes an assault against someone who is helping a peace officer in official duties, or someone who is trying to make a lawful seizure of goods, such as a sheriff or bailiff. Resisting a lawful arrest or detention is considered to be assault of a peace officer as well.
An assault carried out with a weapon, or one that results in bodily harm, has a maximum sentence of ten years imprisonment.
Aggravated assault occurs if the victim suffers wounds, disfigurement or life-threatening injuries. This carries a maximum sentence of fourteen years imprisonment.
There are varying degrees of sexual assault, with corresponding punishments. For more information on sexual assault, see the PLEA publication After Sexual Assault, available at plea.org.
What Can a Victim Do?
The first concern of an assault victim may be to seek medical treatment for any injuries. Then, the victim may choose to report the incident to the police. The police will gather evidence, and talk to any witnesses. A victim likely will have to sign a written statement about the incident.
If a suspect is arrested and charged they may be released, subject to certain conditions, such as reporting to the police at regular intervals. Or, the accused person may be held in jail until a trial if the victim is in danger or if there is a risk of the accused not appearing on future court dates.
If the accused person pleads not guilty, the victim may need to testify at a trial. The prosecutor will ask the victim questions about the assault. The lawyer for the accused then has the opportunity to ask questions. This is called cross-examination. The prosecutor can help prepare the victim for what to expect.
On the other hand, if the accused pleads guilty, a trial is not necessary. If the accused pleads or is found guilty, the judge can ask for a pre-sentence report, which gives background information about the offender. As well, the victim will have the opportunity to make a victim impact statement. A judge will consider all of this information, as well as the facts of the assault, in deciding what sentence to give the offender.
The victim may be able to sue the person who assaulted them. This is because assault is not just a crime. It is also a tort, which means a civil wrong. Suing in civil court may result in an award of money to the victim. A lawyer can help the victim decide if suing the offender is a practical option.
To find a lawyer, the victim can ask a friend or look through the yellow pages.
Other Help for Victims
If the assault was part of a series of harassing conduct by the offender, a victim may be able to ask for a peace bond against the offender. This is a court procedure where the offender is restricted from having future contact with the victim. If the offender makes contact, they may be charged with a criminal offence. Further information can be found in the PLEA publication Peace Bonds, available at plea.org.
An assault may result in medical expenses, damage to clothing or personal accessories such as eyeglasses, lost wages or counselling costs. Victims may be able to get assistance from the government for such expenses. To get more information, call Victims Services toll-free at 1-888-286-6664. Victims Services also provides a number of programs throughout the province, to provide information and general support to victims of crimes. Further information can also be found in the PLEA publication Victims of Crime, available at plea.org.