What is assault?

The charge of assault covers a wide range of activities, ranging from punching someone to asking for money in a threatening manner. It is important to note that even if there is no physical contact between two people, the aggressor may face assault charges. No matter what circumstances led to it, it is a serious charge that could result in imprisonment so those accused people need to seek the advice of legal counsel.

Here is how the Criminal Code defines the act. A person commits an assault when:

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) he attempts or threatens, by an act or a 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

(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

The different degrees of assault

  • Simple (or sometimes, common) assault: This charge is laid most often and covers incidences that do not involve a weapon or any harm to the victim. This charge is common in domestic situations since police take allegations of spousal assault seriously.
  • Assault causing bodily harm: As the name implies this charge is laid if a person suffers a serious injury as a result of an attack. The Code defines bodily harm as “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; (lésions corporelles).”
  • Assault with a weapon: This allegation is not as simple as it sounds. While the weapon involved in these charges is often a firearm or knife, it can also be a pair of scissors, a club or almost any other object that is used to threaten or attack someone. Throw a plate across the room at someone and you could be charged with assault with a weapon. The Code states a person can be charged with assault with a weapon if he “carries, uses or threatens to use a weapon or an imitation thereof.”
  • Aggravated assault: This is a serious charge, laid when the victim is wounded, maimed, disfigured or their life is endangered, according to the Criminal Code. Depending on a variety of factors, anyone found guilty of this charge could face up to 14 years in prison.
  • Sexual Assault: This charge laid is laid if an assault is sexual in nature and it violates the sexual dignity of another person. The court looks at many factors, such as the body part that was touched and the situation in which the touching occurred.
  • Aggravated Sexual Assault: Much like aggravated assault, aggravated sexual assault means there were serious consequences and/or injuries for the victim.

All assault charges have varying levels of severity, from simple to aggravated, with the less serious prosecuted as summary convictions. The one thing that doesn’t change with any of these charges is that you will have a criminal record upon conviction, so take these charges seriously and seek the advice of competent counsel.

Defences against assault

The first thing to remember is that everyone is innocent until proven guilty. In every criminal case, the Crown must prove a person is guilty of an offence beyond a reasonable doubt for them to be convicted. With assault charges, the Crown must prove three things:

  • The accused applied force to someone;
  • The victim did not consent to that force; and
  • The force was applied on purpose.

If there are witnesses, they can be called to testify about what they saw in relation to the incident. If no one else was there, the court will usually hear from the complainant and the accused and then determine guilt or innocence. In those instances, the court may refer to a 1991 Supreme Court of Canada decision to determine guilt.

In that seminal case, the justices ruled: “The trial judge should instruct the jury that: (1) if they believe the evidence of the accused, they must acquit; (2) if they do not believe the testimony of the accused but are left in reasonable doubt by it, they must acquit; (3) even if not left in doubt by the evidence of the accused, they still must ask themselves whether they are convinced beyond a reasonable doubt of the guilt of the accused on the basis of the balance of the evidence which they do accept.”

There are various arguments legal counsel can mount to defend you against an assault charge. The most common ones are:

  • It was consensual: In a typical barroom brawl, two people exchange heated words then start throwing punches. Since both parties consented to the fight, neither will likely be charged with assault, even if one “wins” the fight.
  • It was self-defence: The defendant must be able to show the actions they took were to protect themselves or another person. However, if someone keeps attacking a person once they are down, self-defence is no longer a justification for their actions.
  • It was defence of property: A homeowner who physically resists the entry of a burglar on his property would be an example of where this defence could be used. Again, the force cannot be excessive.
  • It wasn’t me: In some cases, the assailant’s identity may be in question, and the Crown might not be able to prove beyond a doubt that you were the person who assaulted the victim.
  • It was too trivial to worry about: Counsel will argue a de minimis non curat lex (The law does not concern itself with trifles) defence if the nature of the assault was so minor that it should not be considered a criminal offence.

An example of a de minimis defence

A 2016 Youth Justice Court of Nova Scotia decision provides not only the historical background for the de minimis defence but also an example of when it failed after an assault.

The case involved a youth being held at a group home who hit a counsellor in the back with her fist after a dispute about access to a fresh package of bacon. When the case made it to court, the youth said that since no one was injured, she should be found not guilty on the basis of de minimis.

In her judgment, the judge noted that defence was first used in the 16th century in Taverner v. Dominion Cromwell (1594). In a 2004 case, the Ontario Court of Appeal noted: “Where there are irregularities of very slight consequence, [the law] does not intend that the infliction of penalties should be inflexibly severe. If the deviation were a mere trifle, which, if continued in practice, would weigh little or nothing on the public interest, it might properly be overlooked.”

The Nova Scotia judge also quoted former Supreme Court Justice Louise Arbour as saying the operation of the defence of de minimis “does not mean that the act is justified; it remains unlawful, but on account of its triviality it goes unpunished … [saving] courts from being swamped by an enormous number of trivial cases.”

Because of the other factors, the judge said she could not accept the de minimis defence in this case.

Spitting or coughing can be an assault

Intentionally spitting or coughing on someone can be considered a form of assault, especially during a pandemic. These news stories show how seriously the police deal with this issue.

In Edmonton, a man was charged with two counts of assault after allegedly repeatedly coughing on an Edmonton bus driver and transit peace officers before disclosing he had tested positive for COVID-19. He was charged under the Public Health Act for allegedly attempting to infect another individual. A police spokesperson noted, “Our society and other cities around the world are facing extreme challenges at this time and there’s a lot of anxiety out there. And it’s certainly not the time for this sort of irresponsible behaviour.”

In Calgary, three charges of assault were laid after a video showed a man on a bike spitting on an Asian woman on a skateboard, then using a racial slur against her. According to this news story, when he was confronted he spit on two other people.

During the COVID-19 lockdown, at least six Canadians faced criminal charges after alleged coughing and licking incidents, according to this news report. In one case a suspect was spotted by a witness attempting to lick products in a store, “to apparently create a TikTok video to participate in what some are calling the ‘COVID Challenge.’”​

Other incidents detailed in the story talk about people intentionally coughing on officers when they are being arrested or questioned. A police spokesman noted threats of spreading COVID-19 – whether the person actually has it or not – are “very, very serious.”

Needless to say, any type of spitting, coughing, licking or other such behaviour will be very difficult to defend and justify in court, especially during a pandemic.

Have competent legal counsel at your side

The Crown and the police take assault charges very seriously so always get advice from a lawyer before making a statement to police. Navigating the judicial system can be tricky so it is always in your interest to seek the assistance of a criminal lawyer to ensure your rights are protected. Contact me for a free consultation so we can start planning your best defence.

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