What are the defences against assault charges?

Police forces and the Crown Attorney’s office treat assault very seriously. If you are charged with this crime, seek the guidance of legal counsel who can help you start building the best defence possible. Every case is unique but there are some of the key defences available to you.

The best defence is self-defence

Everyone is justified in using reasonable force to defend themselves or others against an unlawful attack, provided they do not intend to cause death or grievous bodily harm. That right is spelled out in s. 34 of the Criminal Code, which states a person is not guilty if:

• they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

• the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

• the act committed is reasonable in the circumstances.

You will have to prove that you had grounds to believe that force was being used against you and that you acted reasonably in the circumstances. To determine whether the self-defence was reasonable in the circumstances, the Code instructs the court to look at these factors:

• the nature of the force or threat;

• the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

• the person’s role in the incident;

• whether any party to the incident used or threatened to use a weapon;

• the size, age, gender and physical capabilities of the parties to the incident;

• the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

• any history of interaction or communication between the parties to the incident;

• the nature and proportionality of the person’s response to the use or threat of force; and

• whether the act committed was in response to a use or threat of force that the person knew was lawful.

Defence of property

Defence of property occurs when someone’s “peaceable possession” or unfettered ownership of property is threatened by another. According to this Department of Justice document, this defence “is necessarily more complex than defence of person. This is because there are many more ways of interfering with property than there are of interfering with a person's bodily integrity … as well, property claims are generally a matter of provincial laws  … and citizens are often unaware of, or mistaken about, aspects of various matters of private law, further complicating the assessment of defence of property claims.”

The most common time this defence is invoked is if someone is trying damage or trespass at your home. This defence is also available to any individual who is assisting the property owner.

Section 35 of the Criminal Code spells out the details of this defence, along with specifying the kinds of threats or forms of interference with one’s property that invoke the defence. Simply put, they are trespassing, theft and destruction, and one or more of these threats must be present for an individual to claim defence of property. 

Any action taken by the defendant must be reasonable and for the express purpose of minimizing or eliminating the threat. If the defendant’s actions go beyond that, they will probably not be able to use this defence.

The assault was an accident

Sometimes interactions between people unexpectedly go badly and the harm or loss that flows from that event was unintended and unexpected. If you are charged with assault and want to raise this defence, you will have the burden of demonstrating that your actions were accidental.

One legal resource defines an accident as a “mishap or untoward event not expected or designed” or “unforeseen contingency or occurrence.” The meaning of this defence varies depending on the type of charge, but generally the defendant has to show they did not intend to cause the outcome, or that the outcome was not foreseeable.

Once the accused establishes there is an air of reality to the defence, the Crown must show this defence is not viable.

There was consent for the use of force

There are cases where the use of force is consensual, such as in a barroom fight where both parties enter into the altercation willingly. If that ends with one person knocked down and the other one walking away, a charge of assault will probably not be laid. But if the participant still on his feet keeps attacking the person who is down, the aggressor could be charged with aggravated assault or assault causing bodily harm, since any mutual consent to fight has been lost when one party has been harmed.

It was an unintentional, reflex action

Canadian criminal law requires that an individual commit the actus reus (“guilty act”) and also possess the requisite mens rea (“guilty mind”).  At trial, Crown attorneys must establish that an accused person not only committed an assault but also intended to do so. With this defence, your legal counsel will argue that an involuntary action negates the necessary intent that is required to sustain a conviction for assault. 

An example of the reflex action defence would be if you sneezed on an elevator and as you brought up your arm to cover your mouth, you made hard contact with a person standing beside you. That impact may have been quite significant but it is still involuntary, allowing this defence to be considered appropriate.

Show that the offence was trivial

If the alleged assault was minor in nature, defence counsel could invoke the principle of “de minimis non curat lex” meaning “the law does not concern itself with trifles.” The idea here is that the court should not concern itself with inconsequential incidents. Even though the offence may be found to be technically valid, the court should disregard it on the basis of its triviality. I argued this defence for a man who was charged with assault in an incident where a woman was knocked down. During questioning, the woman admitted they had been involved in a dispute about a phone and that he accidentally knocked her to the ground as he tried to grab it, but that he did not intend to hurt her.

The judge agreed the de minimis defence was applicable in this case and he dismissed the charge.

Agree to counselling and apologizing

With alleged assaults where no weapon is used and the injuries are not serious, there is a chance the judge will agree to drop the charges if the defendant agrees to counselling and apologizes to the victim. Defendants can also enrol in rehabilitation programs, usually supplemented with counselling or community service. Once all those components are completed the charges will be withdrawn. 

Agree to a peace bond

With minor assaults, the Crown may offer to forego a trial if the defendant agrees to a peace bond. That bond usually lasts a year and includes such conditions as staying away from the other party. As long as you meet the conditions set out you will not have a record when the bond ends. But keep in mind that during that time, the bond will show up on police record checks, which could be a factor for those applying for positions where a record check is a prerequisite.

Seek a pre-trial resolution

Another way to avoid a trial is to have your legal counsel explore pre-trial resolutions with the Crown, where you enter a guilty plea in exchange for a less-severe sentence, saving the court the expense and time commitment of a trial.

What I can do for you

When a client hires me, the first thing I do is ask them for a narrative of what happened so I have a clear picture of what transpired as well as the timeline. Witness statements will be gathered, as well as medical evidence. Many businesses have security cameras so often video evidence is available.

After getting all the details about the charge against you, I will advise you of your options, the advantages and disadvantages of each, and how your decisions can advance your interests. And you can speak in French or English, with nothing lost in translation.

Contact me for a free consultation so we can start planning your best defence.