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The most basic form of assault, often called assault simpliciter or simple assault is defined in section 265 of the Criminal Code. Simple assault can be any of the following:
Section 265 establishes three modes of criminal liability for assault, two of which do not require physical contact. Below we will discuss the three types of simple assault and potential defences.
The most common type of simple assault is the intentional application of force to another person without their consent. The application of force can be direct – a punch to the face – or indirect – throwing a cup at someone.
For the Crown Prosecutor to prove this type of assault, they must prove the accused intentionally applied force to another person. This ensures people that accidentally applied force to another person are not convicted of criminal offences.
The Crown must further prove the recipient of the force did not consent to the force. The law allows parties to consent to physical contact, such as a consensual fight, provided the amount of force used is reasonable.
If the other side consents to the application of force, or if the person applying force reasonably believes the other side consented to the application of force, the Crown Prosecutor will not be able to prove that an assault occurred. Consensual fighting is a full defence to a charge of assault.
Other common potential defences to a charge of assault are defence of person (either self-defence or defence of other) and defence of property. These defences can be advanced when someone intentionally applies force to another person, but they are defending either themselves, someone else, or property. A criminal defence lawyer can advise you whether these defences are viable options for you.
Criminal law makes it an offence to “attempt or threaten by an act or a gesture, to apply force to another person.” This provision criminalizes threatening acts or gestures, meaning you could be found guilty of assault without applying force to another person.
This provision also requires the Crown to prove that the person doing the threatening has, or causes the other person to believe he has, the ability to follow through with his act or gesture. Accordingly, a potential defence to this allegation is that based on the circumstances of the interaction the accused did not actually have the ability to follow through with his act or gesture.
This category is the least common type of simple assault charges. It criminalizes accosting, impeding, or begging, while openly carrying a weapon or imitation weapon. Weapon, is broadly defined as anything used to cause injury or for the purpose of threatening someone.
Like an attempt to apply force, this provision criminalizes assaultive conduct despite no force being applied to the other person.
If an individual uses a weapon or imitation weapon to impede someone, they could be charged with assault under this provision.
The defence of self-defence is codified in section 34 of the Criminal Code. This defence allows a person to commit an assault, but exempts them from criminal liability, provided the person’s actions were defensive in nature.
If a person believe on reasonable grounds that force is being used against them or that a threat of force is being made against them, the person is allows to use force to protect or defend themselves.
A person can only rely on self-defence if the person’s actions are “reasonable in the circumstances.” There are numerous factors listed in section 34 that a judge considers when determining whether the person’s actions were reasonable in the circumstances.
One important factor a judge considers is the proportionality of response. If someone shoves you, and you respond by shoving them back, your actions are likely proportionate, and you can rely on self-defence.
The defence of others operates under similar principles to self-defence, as provided for in the Criminal Code. An individual may use reasonable force to defend another person if they reasonably believe that force is being used or threatened against that person, and their actions are for the purpose of defending that person, and the response is reasonable in the circumstances. This defence essentially extends the principles of self-defence to protect third parties.
The absence of consent to intentionally applied force is a material element of the offence of assault. Therefore, consent can act as a defence to assault. However, the scope of consent in the context of fights is limited by common law (judge made law).
For consent to be vitiated in a fistfight or brawl, two conditions must generally be met:
Intent to cause serious bodily harm: The parties must intend to cause serious hurt or non-trivial bodily harm to each other.
Causation of serious bodily harm: Serious hurt or non-trivial bodily harm must actually be caused.
Crucially, both the intent to cause serious bodily harm and the causation of such harm must coexist for consent to be vitiated. A consensual fistfight between parties who do not intend to cause more than trivial bodily harm does not automatically become an assault if, despite their intention, more than trivial bodily harm unintentionally occurs. If the Crown cannot prove beyond a reasonable doubt that the accused intended to cause more than trivial bodily harm or that the victim did not consent, the defence may succeed.
The sentence range for simple assault is broad. Somone convicted of assault could receive a fine, probation, or jail time, with a maximum jail sentence of 5 years.
Assault charges can often be resolved favourably without the expense and stress of a trial. Should your matter proceed to trial, there are multiple potential defences to assault charges. Speaking with a criminal lawyer can help you understand your rights and the options available to you.
If you or someone you know is facing an assault charge, it’s important to get clear legal guidance.
Every case is different, and understanding your options early on can make a significant difference in how you move forward.
Browne Criminal Defence, based in Calgary, Alberta, can discuss your situation and help you understand the legal process.
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