WHAT MAKES OUT AN ASSAULT?
- There are three circumstances that can form the basis of all assault-related offences: When a person intentionally applies force to another person without his or her consent
- When a person attempts or threatens, through his actions to apply force to another person and either carries out that threat or causes the other person to believe that he has the ability to carry out that threat at that time.
- When a person openly carrying a weapon or an imitation weapon confronts or blocks another person or begs.
WHEN IS THERE VALID CONSENT?
In an assault charge the victim of an alleged offence is called the complainant. Consent from a complainant to be touched by the accused is not valid if permission was given while force is being applied, while under threat of the application of force to himself or another person, when given in fraudulent circumstances, or if force is being applied under the exercise of authority.
Consent is not valid if it wasn’t given freely by the complainant, who is aware of all the risks of the force to be applied. For this reason, sports participants are not being assaulted if they are injured within the normalcourse of a game. But, injuries purposefully inflicted and intended to cause harm that are not a normal part of a sport may be considered an assault. In the course of a consensual fight, where both parties agree to participate, consent is valid, unless bodily harm is intentionally applied causing a serious hurt or non-trivial injury.
ASSAULT S. 266 CCC
Section 266 is an offence for the simplest for of assault. A requirement of assault is that the person applying force intended to do so. As a result, accidentally bumping into someone will not make out an assault. However, intentional touching even as minor as touching someone’s arm without his consent is an assault. As mentioned above, an assault can be made out by threatening another person to apply force to them and having the ability to act on those threats at the time.
S. 266 is a hybrid offence, meaning that the Crown prosecutor has the ability to proceed by summary or by indictment. If summary is elected the maximum penalty on conviction is a fine of no more than $5000, a term of prison of no more than 6 months or both. If indictment is elected the maximum penalty for conviction is imprisonment of no more than 5 years. Sentencing for conviction of assault can include one of the following: a conditional or absolute discharge; a suspended sentence; a fine; a combination of fine and probation; a term of imprisonment; a combination of prison and probation; prison and a fine; an intermittent sentence; a fine, probation and intermittent sentence, or a conditional sentence order. A person receiving a conviction may also be subject to a weapon prohibition, a weapons forfeiture order, and may have to pay a victim fine surcharge.
Some assault charges can be resolved by other means such as participation in the Alternative Measures Program (AMP) or through a common-law Peace Bond. First-time offenders charged with relatively minor assaults may be approved to participate in AMP by making a donation to a charity or completing some community service hours. If AMP is successfully completed the charges will be withdrawn and will not result in a criminal record.
A common-law Peace Bond under s. 810 CCC allows the accused to enter into a recognizance (an undertaking with the court) to keep the peace and be of good behaviour for a period of no more than 12 months. Upon entering the Peace Bond the charges are withdrawn. However, if the accused breaches the Peace Bond, he will face new criminal charges for breaching a court order.
ASSAULT WITH A WEAPON OR ASSAULT CAUSING BODILY HARM S. 267*
A person can be charged under s. 267 CCC if it is alleged that while committing an assault, the accused used a weapon or imitation weapon or caused bodily harm to the complainant.
A weapon is anything that can be used, is designed to be used or intended to be used to cause death or injury to a person or to threaten or intimidate a person. This definition can include any number of objects including firearms, imitation firearms and has been found to include dogs. A person can be charged with assault with a weapon if they threatened to use a weapon, but did not have one at the time.
Bodily harm is defined as any injury that interferes with the health or comfort of a person and is more than transient or trifling in nature. ‘Transient or trifling in nature’ is taken to be a short amount of time and very minimal injury. To be convicted under this offence, it is not necessary that the accused have known that their actions would cause bodily harm to the complainant.
These two offences are hybrid offences. If the Crown proceeds by summary conviction the maximum penalty is 18 months imprisonment or a maximum fine of $5000 or both. If the Crown proceeds by indictment the maximum term of imprisonment is 10 years. Sentencing for conviction of either of these offences can include one of the following: a conditional or absolute discharge; a suspended sentence; a fine; a combination of fine and probation; a term of imprisonment; a combination of prison and probation; prison and a fine; an intermittent sentence; or a fine, probation and intermittent sentence. Conviction under an indictment will result in a mandatory firearms prohibition and a mandatory weapon forfeiture order. A summary conviction may include a discretionary firearms order. A victim fine surcharge may apply to any conviction.
AGGRAVATED ASSAULT S. 268*
An aggravated assault is committed when an accused wounds, maims, disfigures or endangers the life of the complainant. This includes female circumcision that is not completed by a licensed medical professional for the physical health of that person or to a woman who is over 18 years, consents and where there is no resulting bodily harm.
To commit aggravated assault a person does not have to intend to wound, maim or disfigure the complainant. It need only be objectively foreseeable that the accused’s assault on the complainant would cause bodily harm. Wounding involves breaking the complainant’s skin. Endangering the complainant’s life must involve actual endangerment, not just the potential to put him in danger. Consent to this offence is not a defence if injuries to the complainant are caused by the use of a weapon like a knife.
This is an indictable offence and the maximum penalty is imprisonment of 14 years. Sentencing for conviction of assault can include a suspended sentence; a fine; a combination of fine and probation; a term of imprisonment; a combination of prison and probation; prison and a fine; an intermittent sentence; or a fine, probation and intermittent sentence. Conviction result in a mandatory firearms prohibition and a mandatory weapon forfeiture order. A victim fine surcharge may apply to any conviction.
* Assault with a Weapon and Assault Causing Bodily Harm under s. 267 where the Crown proceeds by indictment as well as Aggravated assault (s. 268), are considered “serious personal injury offences”. As such, conditional sentence orders (house arrest) are not available as a potential sentence for these offences.
HIRING AN ASSAULT LAWYER
Assault, aggravated assault, and assault with a weapon are very serious criminal charges. Not only are the repercussions life changing and long term, but if you are found guilty of committing assault the effects can negatively impact your family, career, and future. If you are currently facing charges for assault, it is imperative that you hire a top assault lawyer to protect your future. At Pringle Chivers Sparks Teskey our lawyers are recognized for their ability to build solid defenses, conduct thorough investigations, and provide expert advice. Call our office today for your free consultation; (780) 424-8866.