Assault, Aggravated Assault and
Assault with a Weapon
This article
contains legal
information about criminal assault, assault causing bodily harm, aggravated
assault and assault with a weapon charges in Toronto,
Ontario. Those looking for
advice on criminal assault
charges should
consult a
criminal lawyer.
NOTE: Please
read my article on
Domestic Assault Charges
for information relating
specifically to defending a
domestic assault charge.
What is an
assault?
The definition of
assault is found in the
Criminal
Code
at section 265.
Generally an assault occurs when a
person intentionally applies direct or indirect force to
another person without consent. An assault can also occur where a person
attempts or threatens to intentionally applies direct or indirect force to
another.
What degree of
force is required?
A person
need not harm someone for an assault
to occur. An accused may commit an
assault although he exerts no degree
of strength or power when touching
the victim. The force however must
be offensive or an affront to an
individual's dignity. A push or
pinch in some cases may be sufficient to establish
an criminal assault.
What if I
accidentally hit someone?
The
application of force must be
intentional. Accidentally hitting
someone during the course of an
epileptic seizure, for example,
would not constitute an assault.
However accidentally hitting one
person in an attempt to hit another
is not a defence to assault. It does
not matter who the intended victim
is, as long the offender intended to
apply force to any individual, it is
still an assault.
What is the
difference between an assault, an
assault with a weapon, an assault
causing bodily harm and an
aggravated assault?
The
difference between an assault and an
assault with a weapon is the vehicle
used to deliver the force. Generally
an assault or “simple assault” is
caused by the application of force
from a person’s extremities such as
hands, legs or feet. An assault with
a weapon generally involves the
application of force with an
inanimate object such as a stick,
bat, knife or object thrown and can
even be delivered by something other
than an inanimate object including a
dog ordered to attack a person.
The difference between assault,
assault causing bodily harm and
aggravated assault is the harm
suffered as a result of the
application of force.
An assault that causes any hurt or
injury that is not transient or
trifling in nature and interferes
with the complainant’s health or
comfort will meet the definition of
bodily harm.
In order for an assault to meet the
definition of an aggravated assault,
the injury must be much more
substantial. Any sort of injury that
wounds, maims, disfigures or
endangers the life of another meets
the definition of an aggravated
assault.
The degree of harm caused by an
assault will likely dictate the type
of sentence imposed by the judge if the accused is found guilty.
While some “simple assault” charges
may not result in any jail time, an
aggravated assault charge may result
in a sentence amounting to several
years in jail depending on the
severity of the injuries inflicted
on the complainant.
Defences to Assault
Consent
For an assault to have occurred, the
Crown must prove that the
application of force by the accused
person was done without the consent
of the party to whom the force was
applied.
Consent may be expressly given or implied.
It many instances, consent is
implied and this may be determined
from the circumstances surrounding
the offence. Generally there is an
implied consent to pat a co-worker
on the back or shake hands with a
relative stranger. However,
fraudulently-obtained or
forcefully-extracted consent is really no consent at all.
In
addition, no one may consent to
being killed or seriously injured. A
consent to a fight does not normally
imply permission to inflict
significant bodily harm. Thus where
the offender intends, or actually
causes, significant harm or death,
consent is not a defence.
Mistake Belief
in Consent
Even if the
Crown proves that consent did not
actually exist, it is still
available to the accused to argue
that they honestly believed the
aggrieved party had consented to the
application of force. An honest but
mistaken belief in consent will also
afford a defence to an assault
charge.
Self-Defence
The law recognizes that a person is
justified in using force or
threatening force in certain
circumstances to protect either
themselves, close family members or
property. The basic rule permits the
use of force if the force is
reasonable in the circumstances.
Whether the use of force is
reasonable is entirely fact specific
and can depend on a number of
different factors.
What do I do if I’ve been charged with assault?
What do I do if I’ve been
charged with assault?
The consequences of being found guilty of an assault
charge are significant. upon a finding of guilt, one may receive a
criminal record and be sentenced to a period of incarceration in jail.
Alternatively, the court may impose a lesser sentence including probation
with counselling or a fine.
It is important to remember that
every allegation of assault is a
fact specific inquiry. Consulting a
lawyer will assist you with
identifying potential defences to
this type of allegation. Call
me at
416.297.7200 for a free
consultation about your case.
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