What Should I Know About an Assault Charge?


Assault Defined

In Canada, assault is defined in Section 265 of the Criminal Code and includes physical contact and threats:

  1. (1) A person commits an assault when
  • without the consent of another person, he applies for intentionally to that other person directly or indirectly;
  • he attempts or threatens, by an act or gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
  • while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

Note that, in some cases, there does not need to be physical injury for an assault to be committed.  A threat of violence or force constitutes assault and you may be charged accordingly (Section 265(1)(b)) of the Criminal Code).

Different Forms of Assault

The chart below summarizes the different forms of assault and the related potential sentences (punishment).  Some forms of assault may be prosecuted by way of summary conviction (minor offence) or indictment (serious offence):

 

CRIMINAL CODE
SECTION

ASSAULT TYPE

ELEMENTS

POTENTIAL
SENTENCE
266 “Common” Assault The least serious of all forms of assault, “Common”or “Simple” Assault arises when an accused does not use a weapon while committing the assault and does not cause bodily harm to the victim. Summary Conviction: Up to 6 months imprisonment, a maximum fine of $5,000, or both

Indictment : Up to 5 years imprisonment

267 Assault with a Weapon When an accused carries, uses, or threatens to use a weapon, or imitation weapon, while committing an assault.

A “weapon” is defined by the Criminal Code as anything that is used, designed to be used, or intended to be used to either: (a) cause death or injury to a person; or (b) threaten or intimidate a person.  In addition, anything used, designed to be used, or intended to be used for binding or tying up a person is considered a weapon.

Summary Conviction: Up to 18 months imprisonment

Indictment: Up to 10 years imprisonment

267 Assault Causing Bodily Harm When the victim suffers bodily harm as a result of the assault.

“Bodily Harm” means any hurt or injury to a person that interferes with the health or comfort of the person and that is “more than merely transient or trifling in nature”.  This means that the injury must be serious and have lasting effects.

Summary Conviction: Up to 18 months imprisonment

Indictment: Up to 10 years imprisonment

268 Aggravated Assault The most serious form of assault, aggravated assault occurs when an accused wounds, maims, disfigures, or endangers the life of the victim.

“Wounds” means to break the skin, “maim” is to cause injury to a person such that their capacity to fight back is impaired, and “disfigures” means that permanent marring of a person’s appearance occurs.  “Endangers the life of the victim” requires that there is an actual risk of endangerment, but not necessarily that harm to the body occurs.

Indictment: Up to 14 years imprisonment
269.01 Assault Against a Public Transit Operator An assault may be considered aggravated assault if it is committed against a public transit operator during the course of their duty. Summary Conviction: Up to 6 months imprisonment, a maximum fine of $5,000, or both

Indictment : Up to 14 years imprisonment

 

Section 270 of the Criminal Code relates to assaulting a peace officer, which includes:

  • A mayor, warden, sheriff, deputy sheriff, sheriff’s officer, and justice of the peace
  • A member of the Correctional Service of Canada who is designated as a peace officer and a warden, deputy warden, keeper, jailer, guard, and any other officer or permanent employee of a prison
  • A police officer, police constable, bailiff, constable, or other person employed for the preservation and maintenance of the public peace or for the service or execution of civil process
  • A customs officer, immigration officer, fishery guardian
  • A pilot in command of an aircraft
  • Officers and non-commissioned members of the Canadian Forces

The sentences for assaulting a peace officer range in severity from summary conviction (“Common Assault”) to an indictable offence of up to 14 years imprisonment (Aggravated Assault).

Charge v. Prosecution

In circumstances of alleged assault, it is up to the police to determine whether to arrest you.  The police must have reasonable and probable grounds (RPG) to do so which means that those grounds must be objectively justifiable.  In other words, a reasonable person placed in the position of the police officer must be able to conclude that there were reasonable and probable grounds for the arrest.

Once you are charged, the Crown Attorney (prosecutor) then determines whether to prosecute your case on the basis of a reasonable prospect of conviction (RPC).  That is to say, whether there is sufficient evidence in relation to the assault to support a finding of guilt against you.  This is known as screening your charge.  If there is insufficient evidence against you, the Crown Attorney may decide to drop the charge.

Mazin Defence

The criminal justice system is a complex and intimidating landscape; particularly, when your liberty is threatened.  However, Mazin Defence knows the lay of the land and is here to help you navigate your way to the best possible outcome.  If you have a question or need assistance, our experienced and dedicated criminal defence team is here to help.  Reach out to the criminal justice expert today.

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    © 2011-2018 Jeffrey F. Mazin | Barrister & Solicitor

    DISCLAIMER: The information provided on this website is not intended as legal advice. If you have a legal problem, seek advice from a lawyer.