What’s the legal definition of assault?
In Canadian criminal law, someone commits an assault if, without justification, they intentionally apply force to another person without that person’s consent.
There are two other, less common, legal definitions of assault. Someone can also be guilty of assault if, without justification, they:
(1) Attempt or threaten to apply force to another person, which causes the other person to think they’ll apply force to them; or
(2) Accost, impede, or beg at another person while openly carrying a weapon or imitation weapon.
Prosecutors rarely charge people with these last two types of assault.
What does a prosecutor need to prove for an accused to be found guilty of assault?
For someone to be guilty of a crime, the prosecutor must prove all the elements (i.e. ingredients) of that crime beyond reasonable doubt. The elements of the first type of assault above are that the accused:
(1) “Intentionally…” – If the accused applied force to someone else by accident, they’re not guilty of an assault;
(2) “…applied force to another person…” – The legal meaning of “applying force” is very broad. If the accused pushed, pulled, pinched, grabbed, or scratched someone, that’s enough to count as applying force. The accused didn’t have to do anything as obviously violent as punching someone in the face;
(3) “…without that person’s consent.” – People can legally consent to someone else applying force to them. It’s up to the prosecutor to prove that an alleged assault victim didn’t consent to it.
A simple example where people consent to others applying force to them is when they’re playing a contact hockey game. However, the law says a person can’t consent to others inflicting bodily harm on them. For example, in 2004 NHL player Todd Bertuzzi grabbed Steve Moore’s jersey from behind and punched Moore in the back of the head. After the incident, the BC Prosecution Service charged Bertuzzi with assault causing bodily harm. Because Steve Moore had severe injuries, Bertuzzi couldn’t argue that Moore had consented to the assault as part of the game. Accordingly, Bertuzzi pleaded guilty.
Even if the prosecutor proves all the elements of assault, the accused still won’t be guilty of it if they can justify their assault. An accused can justify their assault if they did it to defend either themselves, another person, or property.
What are some of the different assault charges?
Lawyers call an assault that didn’t cause the complainant (i.e. alleged victim) any bodily harm a “simple assault”. We call a more serious assault an assault causing bodily harm, and we call an even more serious assault “aggravated assault”.
A sexual assault is defined the same way as an ordinary assault, except the accused must have done the assault for a sexual purpose. Like ordinary assault charges, sexual assault charges have upgraded versions: sexual assault causing bodily harm, and aggravated sexual assault.
If an accused used a weapon while assaulting someone, a prosecutor might charge them with assault with a weapon. The definition of a “weapon” includes any object someone used to commit the assault. If someone hits another person with a shoe, then the shoe is a weapon for the purpose of an assault with a weapon charge.
There are various other criminal offences with assault-like characteristics. A few examples include overcoming resistance to the commission of an offence, kidnapping, or forcible confinement.
What are some defences to assault?
We’ve seen that one defence to assault is consent, like when someone chooses to play a contact sport. Another way consent can be a defence to assault is when people engage in a consensual fight. Again, two people can legally consent to a physical fight with each other. However, they’re not legally permitted to cause bodily harm to each other. “Causing bodily harm” means inflicting injuries that are more than minor, or took longer than a couple of weeks to recover from.
The law permits someone to use force to defend themselves, other people, or things. However, using force this way is only justified if it was reasonable under the circumstances. “Reasonable” means that an ordinary, cautious person might have acted the same way in the same situation.
A rare defence to assault is the reflex defence. The law says someone isn’t guilty of assault if they applied force in a single act without thinking, as a reflex. An example where this might apply is if someone were to semi-consciously punch another person after being startled awake.
What about provocation, or retribution?
A provocation can be a partial defence to a murder charge, but it’s not a defence to assault. The law expects people not to react with physical force even if they’re severely provoked. However, a serious provocation can influence the sentence a person might otherwise receive for committing an assault. At sentencing, judges take into account the context in which an accused committed a criminal offence.
If someone has been seriously wronged by another person, the law doesn’t allow them to take matters into their own hands. The legal system disapproves of vigilantism. Instead, if someone wants justice they’re expected to contact the police to obtain it, or to seek a remedy in the courts.
What are some of the situations where assaults occur?
Domestic assaults are by far the most common category of assaults. The reason is simple: people spend most of their time with their domestic partners. That basic fact means they’re more likely to have conflicts with that person, which can sometimes escalate.
It’s well-known that people are more prone to violence when they consume alcohol. Accordingly, assaults in or around drinking establishments are fairly common. Prosecutors sometimes have difficulty proving such assaults because the only witnesses to the incident were themselves drunk at the time.
Assaults also occur in so-called road rage incidents. People tend to think of themselves as part of the car they’re driving. Because of this, drivers will sometimes instigate physical assaults against other drivers who nearly collide with them. For some people, this can be a very serious provocation.
People employed in occupations where they’re required to use force (e.g. doormen, security guards, police officers, etc.) get into incidents where they might end up being accused of assault. The law permits someone acting under authority to use force, but they must still have reasonable grounds to use that force first. They must also not use excessive force.
You can find some of the firm’s case results for assault HERE.