Pursuant to section 265 of the Criminal Code of Canada, an assault occurs when there is the intentional application of force, either directly or indirectly, without the consent of the person to whom force is being applied. An assault can also occur when a person attempts or threatens to apply force, or causes a person to reasonably believe that the person has the ability to effect the application of force.
The application of force must be more than carelessness on the part of the accused person. Where the application of force is the result of a reflexive action on the part of the accused, the element of intentional application of force has not been established.
It should be noted any allegation of assault involving a peace officer is a separate offence under the Criminal Code.
Defending Assault Charges
A conviction for assault can have serious implications on attaining future employment and travelling to other countries. When you retain my legal services I will raise any and all defences on your behalf. Before you consider defending an assault charge on your own or decide to plead guilty, contact me and arrange a free consultation.
There are several defences a lawyer can raise in defending an assault charge including, but not limited to; self-defence, defence of one’s property, defence of another person under the accused’s protection, intoxication, using force to prevent a person committing certain offences.
How is Consent Defined?
Consent is also a defence to a charge of assault, however the defence of consent will not be available where consent was obtained through the use of force or where force is threatened to be applied to the victim or another person.
Where consent is given, it must be done so freely and the person must appreciate all the risks involved when consenting to force being applied to him or her. Where two people engage in a consensual fight, consent cannot be obtained where serious bodily harm is both intended and caused.
Penalty for a Conviction of Assault
Assault is a hybrid offence and thus the Crown Attorney can elect either to proceed either summarily or by indictment. For a summary offence, a person is liable to a fine of not more than $5,000, and/or a term of imprisonment not more than 6 months. In circumstances where the Crown Attorney elects to proceed by indictment, a person is liable to a term of imprisonment not exceeding 5 years.
Assault is a primary designated offence for a DNA data bank order under s. 487.051. This means that upon a conviction for assault or a discharge under s. 730, the court shall order the taking of bodily samples for the purpose of a DNA data bank.
A conviction for assault also carries a mandatory weapons forfeiture order under s. 491 and a discretionary firearms order may be made under s. 110.