Assault – Basics
Definition and Penalties
Application of force
An assault is the intentional application of force, directly or indirectly, to another person without that person's consent.
Threat to apply force
An assault may also take the form of an attempt or threat, by an act or gesture, to apply force to another person. In this case, however, the Crown must prove you had the present ability to carry out the assault or that the victim believed you did. The degree of alarm felt by the person threatened is irrelevant to a finding of guilt as is your intent to carry out the threat.
The threat must cause apprehension of immediate personal violence; a threat to inflict harm at an unspecified time in the future is not an assault. Words alone, while they may be a threat, cannot constitute an assault.
Penalties
Assault may be prosecuted in one of two ways: by summary conviction or by indictment.
Almost invariably, a simple assault will be prosecuted by summary conviction. If convicted following a trial by summary conviction, you are liable to a fine of up to $2,000 or 18 months' imprisonment or both. Other penalties may be imposed. For example, many judges will place you on probation, which can last up to three years. Typically, as a condition of probation you will be required to have no contact with the victim of the assault and to participate in counselling for anger control.
Defences to assault charges
Consent: Sports
In sports, players consent to some forms of intentional body contact and to the risk of resulting injury. The bodily contact to which they consent is that which falls within the rules and customary norms of the game.
But some forms of bodily contact involve such a great risk of injury and distinct probability of serious harm as to go beyond what the players impliedly consent to or beyond what they are capable, in law, of consenting to. Conduct in a game that is meant to inflict injury will generally fall outside the immunity provided by implied consent.
Consent: Fights
The defence of consent does not extend to serious injury resulting from a fist fight or brawl between adults. However, the defence continues to apply to children who in the course of a fight unintentionally cause serious hurt.
Reflex action
Where the application of force is the result of carelessness or a reflex action, the criminal intent is lacking and no assault is committed. A reflex action need not be in response to an actual blow but may also occur in response to a perceived and immediate threat.
Defence of property
In general, a property owner or tenant can use force to eject a trespasser or to prevent a person from breaking into or forcibly entering their home. Valuable personal property can also be defended by its owner. The force used in these cases must be restricted to that which is necessary. Even if the victim was not a trespasser, the property owner or tenant may be acting in self defence if he reasonably believes that the victim is trespassing.
Prevention of a crime
Reasonable force can be used to prevent the commission of a serious offence that would be likely to cause immediate and serious injury or property damage. This defence is designed to permit an innocent bystander, who witnesses an offence being or about to be committed, to use force to prevent it.
A person who witnesses a breach of the peace is authorized to use reasonable force to stop it or prevent its continuation or renewal.
Protection of others
A person may use force to defend himself or anyone under his protection from assault. Persons under another's protection likely include immediate family and those with whom one has a close relationship. The force used must be limited to that which is necessary.
More Defences
Self-defence
A person is justified in using force to defend himself against an unlawful assault provided he did not provoke the assault and the force he uses is not meant to cause death or grievous bodily harm. The defence may be available even if the assailant is killed. Provocation consists of conduct intended to provoke an assault. The force used must be no more than necessary to enable him to defend himself.
How much force is excessive? The courts take a tolerant approach recognizing that a person defending himself against attack cannot be expected to weigh to a nicety the exact measure of necessary defensive action. As a U.S. court once put it: "Detached reflection cannot be demanded in the presence of an uplifted knife."
A person acting in self-defence against an unlawful assault is justified in killing or grievously injuring his assailant if he is under a reasonable apprehension of death or grievous bodily harm from the assault and he believes on reasonable grounds that he cannot otherwise preserve himself from harm.
A person may be acting in self defence even though no assault actually takes place provided he reasonably, albeit mistakenly, believes that one is taking place. Also, recall that an assault can take the form of a threat to apply force where the person threatened believes on reasonable grounds that the individual making the threat has the present ability to carry it out. In one case, a murder conviction was overturned where the killer believed that the victim was reaching behind his back for a knife. Although no knife was found, the killer interpreted the victim's reaching motion as an assault, an incipient knife attack.
Corporal punishment (spanking)
Perhaps the most controversial defence to a charge of assault is that available under section 43 of the Criminal Code to a parent who spanks or beats his or her child. Known as the corporal punishment defence, it was upheld recently as constitutional by the Supreme Court of Canada.
The defence justifies the hitting of a child by way of correction provided the force used is reasonable under the circumstances. The defence can also shield from criminal liability a teacher who restrains a pupil or uses force to remove a disruptive child from the classroom. The child must be capable of appreciating correction; the defence does not avail in an assault against a child under 2 or a mentally challenged child. As the assault must be for discipline, a smack delivered only in anger or frustration is not covered by the defence.
Where the defence is raised at trial, the Crown must call evidence to satisfy the court beyond a reasonable doubt the force used was not for the purpose of correction or that it was excessive.
In its recent ruling upholding the corporal punishment defence, the Supreme Court of Canada set limits on its use:
- Corporal punishment of teenagers is impermissible. It achieves only short-term compliance and carries with it the danger of alienation from society, along with aggressive or otherwise anti-social behaviour.
- Corporal punishment using objects such as belts, rulers, etc., is potentially harmful both physically and emotionally and cannot be tolerated.
- Corporal punishment should never involve a slap or blow to the head.
- Corporal punishment which causes injury is child abuse.
Domestic Assault
An assault that takes place between partners in a relationship is a domestic assault. The policy of the Crown Attorney in Ontario, as set out in the Crown Policy Manual, is to prosecute these offences "with vigour."
Almost invariably, persons charged with domestic assault are held by police overnight for a bail hearing the following day. The Crown may seek to detain the accused person until the charge is disposed of, particularly where the accused has a criminal record for assault against the same complainant or where the alleged assault was vicious. If the court releases the accused, it virtually always orders that he or she have no contact with the complainant.
Domestic assault charges are not to be withdrawn unless "exceptional circumstances" exist, says the Crown Policy Manual. Police will subpoena the victim to appear at trial as a Crown witness. Crown counsel control the prosecution - not the victim; Crown counsel can proceed with a prosecution against the victim's wishes. In deciding whether to do so, the Crown will consider, among other things, the strength of its case, the history, if any, of violence by the accused, and the extent of any injuries suffered by the victim.
A victim who is reluctant to testify can be arrested and brought to court pursuant to a material witness warrant. A witness under subpoena who fails to attend court may be found in contempt of court. In practice, Crown counsel will try to secure a witness's cooperation through persuasion rather than resort to drastic measures. Even if the victim recants, the accused could still be convicted if the court admits into evidence an incriminatory videotaped statement.
Peace Bonds
A peace bond or recognizance is a court order requiring the person to whom it is directed (defendant) to keep the peace and be of good behavior. In minor assault cases, the Crown might withdraw the charge upon the accused person entering a peace bond.
Conditions may be attached to ensure good conduct; it is usually stipulated that the defendant avoid contact with and not go near the home of the person for whose protection the bond is issued. Often, there is a requirement that the defendant not possess any firearms, ammunition or explosives.
A peace bond may be issued under section 810 of the Criminal Code or under the court's common law jurisdiction to bind a party over to keep the peace.
Under the Criminal Code, any person who fears on reasonable grounds that another person will hurt him or her, or his or her spouse or child, or damage his or her property can apply to a justice to have that person enter a peace bond. If the court is satisfied there are reasonable grounds for the applicant's fear, it will order the defendant to enter a recognizance to keep the peace.
A section 810 peace bond can be issued for up to a year; a common-law peace bond for longer. Refusal to sign a section 810 bond can result in imprisonment for up to 12 months. And once entered, it is a criminal offence to violate the conditions of a section 810 peace bond. However, signing a peace bond or recognizance does not give rise to a criminal record.
According to the Crown Policy Manual, a peace bond will be accepted as an appropriate remedy in a domestic assault matter only in "the most unusual circumstances."
Legalities of a Consensual Fist Fight - Case Law (Common Law)
See R. v. Paice, 2005 SCC 22 (CanLII), [2005] 1 SCR 339,
<http://canlii.ca/t/1k6m2>
Following a scuffle inside a bar, the accused was challenged by the deceased to go outside and fight. Once there, they exchanged threats, and the deceased pushed the accused once or twice. The accused struck the deceased on the jaw. The deceased fell backward, his head bouncing off the pavement. The accused then struck him two more times on the head. The deceased died as a result of his injuries and the accused was charged with manslaughter. The trial judge acquitted him on the ground that, following the deceased’s pushing which constituted an unlawful assault, the accused had acted in self‑defence within the scope of s. 34(1) of the Criminal Code. The Court of Appeal set aside the acquittal and ordered a new trial.
Held: The appeal should be dismissed. The order for a new trial is confirmed.
Per Major, Binnie, LeBel, Deschamps, Abella and Charron JJ.: Self‑defence under s. 34(1) of the Code is not available to either combatant in a consensual fist fight. That the deceased had agreed to fight was not a contentious issue at trial, but it is unclear from the trial judge’s reasons whether he found, as a fact, that the accused had also consented to the fight. A misinterpretation of the principles in Jobidon led the trial judge into error in his analysis on self‑defence. First, his conclusion that the deceased’s pushing of the accused was an unlawful assault because it was “without the consent of the accused” was based on his legal conclusion that neither party could rely on the consent of the other because each of them had entered the fight with the intention to cause serious bodily harm to the other. Under Jobidon, however, serious harm must be both intended and caused for consent to be vitiated. Whether the deceased intended to cause serious bodily harm, he did not in fact do so. Because the trial judge based his finding that the accused had been unlawfully assaulted solely on the legal conclusion he had reached on the issue of consent, he never inquired into whether the accused had in fact consented to the fight. Second, the trial judge did not address the question of provocation. An accused can rely on s. 34(1) only if he was unlawfully assaulted “without having provoked the assault”. It was not open to the Court of Appeal to determine the issue of provocation and to conclude that the accused could not be said to be the victim of an unprovoked assault based on its own assessment of the evidence in the absence of a definitive finding by the trial judge that the accused consented to the fight. [4] [18-21]
Per Fish J.: The accused’s acquittal must be set aside on the sole ground that the trial judge overlooked the unprovoked assault requirement of s. 34(1) of the Code. [31-32]
11 In dealing with the issue of consent, the trial judge reviewed Jobidon and relied expressly on the following excerpt from the decision of the English Court of Appeal in Attorney General’s Reference (No. 6 of 1980), [1981] 2 All E.R. 1057, at p. 1059:
. . . it is not in the public interest that people should try to cause or should cause each other actual bodily harm for no good reason. Minor struggles are another matter. So, in our judgment, it is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended and/or caused. This means that most fights will be unlawful regardless of consent. [Emphasis added.]
However, the trial judge did not refer to the fact that this Court in Jobidon held that it was not open in Canada to adopt the English position without modification. The Court referred to the above-noted passage in the Attorney General’s Reference case and stated, at p. 760:
Attorney General’s Reference makes it clear that a conviction of assault will not be barred if “bodily harm is intended and/or caused”. Since this test is framed in the alternative, consent could be nullified even in situations where the assailant did not intend to cause the injured person bodily harm but did so inadvertently. In Canada, however, this very broad formulation cannot strictly apply, since the definition of assault in s. 265 is explicitly restricted to intentional application of force. Any test in our law which incorporated the English perspective would of necessity have to confine itself to bodily harm intended and caused. [Emphasis in original.]
12 Indeed, if the test were otherwise and a conviction possible if bodily harm were either intended or caused, the result would be to criminalize numerous activities that were never intended by Parliament to come within the ambit of the assault provisions and would go beyond the policy considerations identified in Jobidon. For example, if causation alone sufficed, a person who agreed to engage in a playful wrestling match with another could end up being criminally responsible if, even by accident, he caused serious bodily harm to the other during the course of play. This Court in Jobidon was very mindful not to overextend the application of the principle to like situations. Conversely, the intention to cause serious bodily harm alone cannot serve to negate the other person’s consent to the application of force if, in fact, no bodily harm is caused. The activity, a consensual application of force that causes no serious bodily harm, would fall within the scope of the consent and not in any way fall within the Code definition of assault. Yet, it would be criminalized by judicial fiat. In my view, this would constitute an unwarranted extension of the principle in Jobidon.
13 With respect, I am of the view that the limits of the principle in Jobidon were not understood by the trial judge. After referring to the Attorney General’s Reference case, the trial judge went on to explain his understanding of the principle in Jobidon and to apply it to this case. He stated the following:
What Jobidon, then, has developed is an understanding that no combatant in a fight can consent to another person causing him or her serious bodily harm or non-trivial harm. Resultantly, as was indicated numerous times throughout the Jobidon decision, there will only exist very rare situations where a fistfight, even though agreed to by both parties, will not be considered as an assault due to the presence of intended or actual harming of either of the combatants.
Applying the reasoning in Jobidon to the present case, I have found, just as the trial judge did in Jobidon, that both combatants to this fight intended to cause the other bodily harm that was serious and not trivial, and that, in fact, serious harm did occur. On that basis, I find that neither combatant was able to consent to the fistfight.
In coming to this conclusion, I am reminded that the accused testified that the deceased warned that he was going to “beat up” the accused, “kick his ass”, or “break him up”, and that similarly, the accused intended to “hit the deceased so that he would either retreat or give up”, and that he would do so to “get the upper hand in the fight”. The infliction of bodily harm of a non-trivial nature was, in my finding, certainly intended by both of these combatants. [Emphasis added.]
14 It is apparent from his reasons that the trial judge was of the view that the consent to a fist fight would be nullified by either an intention to cause serious bodily harm or an actual causing of such harm. The trial judge’s misinterpretation of Jobidon is of no consequence to his conclusion that Mr. Paice could not rely on the deceased’s consent in defence to the charge because the trial judge found that Mr. Paice both intended to cause serious bodily harm and, in fact, caused it. Hence, Mr. Paice could not argue that he had not committed the unlawful act of assault and his first defence failed. However, the trial judge’s overextension of the principle in Jobidon led him into error in his subsequent consideration of the elements of self-defence.
15 After rejecting the defence of consent, the trial judge turned his attention to Mr. Paice’s alternative argument that he had acted in self-defence. Section 34(1) of the Criminal Code was the sole provision considered by the trial judge. It reads as follows:
34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.
For Mr. Paice to successfully argue self-defence under s. 34(1), it must first be found that he was unlawfully assaulted by Mr. Bauck.
16 The trial judge concluded that Mr. Bauck’s actions “met the s. 265 requirements for assault”. The Crown contended that Mr. Bauck’s push of Mr. Paice was not an unlawful assault because, following the principles of Jobidon, Mr. Paice had consented to the application of force and no bodily harm was occasioned by the push. The trial judge rejected the Crown’s position and was of the view that there could be no consent to the application of force unless both persons agreed or understood in advance that the anticipated bodily harm would remain within the bounds established in Jobidon. His reasons for concluding that Mr. Bauck had unlawfully assaulted Mr. Paice were the following:
Having dealt with the issue of consent and concluded that it was not applicable, I am left with a situation where the deceased, without the consent of the accused, intentionally and directly applied force to the accused by pushing him backwards with open hands with sufficient force to knock him back several steps. The issue then turns on how to characterize the accused’s reaction to the aggressor’s actions. [Emphasis added.]
17 The trial judge then held that the accused’s reaction to the assault was justified under s. 34(1) of the Criminal Code. He concluded that a closed fist punch to the head or an elbow to the head from a man of slightly less stature and age than his aggressor was within the threshold of force permitted by s. 34(1) and, in this case, was not intended to cause death or grievous bodily harm. He viewed the subsequent blows as part of one single transaction because there was no significant time interval between the first and last blows thrown.
18 Two errors emerge from the trial judge’s analysis on self-defence. First, his conclusion that Mr. Bauck’s pushing of Mr. Paice was an unlawful assault because it was “without the consent of the accused” was based on his legal conclusion that neither party could rely on the consent of the other because they each had entered the fight with the intention to cause serious bodily harm to the other. This conclusion stems from the trial judge’s misinterpretation of the principle in Jobidon. Jobidon requires serious harm both intended and caused for consent to be vitiated. Whether or not Mr. Bauck intended to cause serious bodily harm to Mr. Paice, he did not in fact do so. Had the fight been interrupted after the initial push, Mr. Bauck would have been entitled to rely on Mr. Paice’s consent, assuming he did in fact consent, in answer to a charge of assault. Likewise, had Mr. Paice’s reaction to the push not resulted in any serious bodily harm, he would not have been guilty of assault. As technical as it may appear, s. 34(1), by its terms, requires this step-by-step analysis of what transpired in the parking lot.
35 The trial judge nonetheless concluded that the appellant, while intending to cause the deceased serious bodily harm, did not intend to cause him “grievous bodily harm” within the meaning of s. 34(1) of the Criminal Code.
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.
“Grievous bodily harm” is nowhere defined in the Code.
41 For the guidance of the judge who will preside at the appellant’s new trial, I nonetheless believe it helpful to add that “grievous bodily harm”, within the meaning of ss. 34 and 35 of the Criminal Code, is not limited to harm or injury that is permanent or life-threatening. In ordinary usage, “grievous” bodily harm means harm or injury that is “very severe or serious”: see The Canadian Oxford Dictionary (2nd ed. 2004), at p. 664. These terms respect the statutory context in which that expression was adopted by Parliament in the relevant provisions of the Code.
See R. v. Jobidon, 1991 CanLII 77 (SCC), [1991] 2 SCR 714, http://canlii.ca/t/1fskj for a full historical analysis:
(f) Conclusion
How, and to what extent is consent limited?
The law's willingness to vitiate consent on policy grounds is significantly limited. Common law cases restrict the extent to which consent may be nullified; as do the relevant policy considerations. The unique situation under examination in this case, a weaponless fist fight between two adults, provides another important boundary.
The limitation demanded by s. 265 as it applies to the circumstances of this appeal is one which vitiates consent between adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl. (This test entails that a minor's apparent consent to an adult's intentional application of force in a fight would also be negated.) This is the extent of the limit which the common law requires in the factual circumstances of this appeal. It may be that further limitations will be found to apply in other circumstances. But such limits, if any, are better developed on a case by case basis, so that the unique features of the situation may exert a rational influence on the extent of the limit and on the justification for it.
Stated in this way, the policy of the common law will not affect the validity or effectiveness of freely given consent to participate in rough sporting activities, so long as the intentional applications of force to which one consents are within the customary norms and rules of the game. Unlike fist fights, sporting activities and games usually have a significant social value; they are worthwhile. In this regard the holding of the Saskatchewan Court of Appeal in R. v. Cey, supra, is apposite.
The court's majority determined that some forms of intentionally applied force will clearly fall within the scope of the rules of the game, and will therefore readily ground a finding of implied consent, to which effect should be given. On the other hand, very violent forms of force which clearly extend beyond the ordinary norms of conduct will not be recognized as legitimate conduct to which one can validly consent.
There is also nothing in the preceding formulation which would prevent a person from consenting to medical treatment or appropriate surgical interventions. Nor, for example, would it necessarily nullify consent between stuntmen who agree in advance to perform risky sparring or daredevil activities in the creation of a socially valuable cultural product. A charge of assault would be barred if the Crown failed to prove absence of consent in these situations, in so far as the activities have a positive social value and the intent of the actors is to produce a social benefit for the good of the people involved, and often for a wider group of people as well. This is a far cry from the situation presented in this appeal, where Jobidon's sole objective was to strike the deceased as hard as he physically could, until his opponent either gave up or retreated. Fist fights are worlds apart from these other forms of conduct.
Finally, the preceding formulation avoids nullification of consent to intentional applications of force which cause only minor hurt or trivial bodily harm. The bodily harm contemplated by the test is essentially equivalent to that contemplated by the definition found in s. 267(2) of the Code, dealing with the offence of assault causing bodily harm. The section defines bodily harm as "any hurt or injury to the complainant that interferes with the health or comfort of the complainant and that is more than merely transient or trifling in nature".
On this definition, combined with the fact that the test is restricted to cases involving adults, the phenomenon of the "ordinary" schoolyard scuffle, where boys or girls immaturely seek to resolve differences with their hands, will not come within the scope of the limitation. That has never been the policy of the law and I do not intend to disrupt the status quo. However, I would leave open the question as to whether boys or girls under the age of 18 who truly intend to harm one another, and ultimately cause more than trivial bodily harm, would be afforded the protection of a defence of consent. (As was the accused in R. v. Barron reflex, (1985), 23 C.C.C. (3d) 544 (Ont. C.A.), in which a boy was charged with manslaughter, via assault, for pushing another boy down a flight of stairs thereby causing the boy's death. The trial judge held that the deceased boy had impliedly consented to rough-housing on the stairs as they descended.) The appropriate result will undoubtedly depend on the peculiar circumstances of each case.
It is now possible to move away from the issue of consent. But before summarizing the result of this appeal, it may be instructive briefly to address the possibility that criminal negligence could serve as an alternative unlawful act on which the charge of manslaughter could be grounded.
