The Criminal Code of Canada classifies Assault offences into categories based on different circumstances such as the use of weapons, injuries caused, as well as other factors. These distinctions can be very important as different sentencing considerations, including higher maximum sentences, may apply.
Assault — s. 266 of the Criminal Code
Assault is the act of applying force to another person without their consent. Assault can also be a threat of applying force to another person, either explicitly by verbal threat, or implicitly through carrying a weapon and directing it at another person.
Assault is often a blanket term used to describe all forms of assault; however, being charged with “common” assault is a lesser charge than assault with a weapon, or aggravated assault The maximum term of imprisonment for Assault is 5 years when the Crown proceeds by Indictment. There are other forms of assault, such as sexual assault, which are so unique that they are not generally considered simply a form of assault.
Assault With a Weapon — s. 267(a) or Causing Bodily Harm — s. 267(b) or with Choking 267(c) of the Criminal Code
The more serious forms of Assault are contained within s. 267 of the Criminal Code. This section defines the offence of Assault in those circumstances where a weapon is used, or bodily harm is caused, or choking (or suffocating or strangulation) occurs. These additional elements, if proven, raise the maximum term of imprisonment to 10 years when the Crown proceeds by Indictment. There is no minimum amount of bodily harm required for this charge but in practice, this charge is generally reserved for those cases with more than trifling injuries.
Aggravated Assault — s. 268 of the Criminal Code
Aggravated assault is always an indictable offence in Canada, and is the most severe type of assault charge. Aggravated assault charges are reserved for the most serious type of assault, that wounds, maims, disfigures, or endangers the life. This charge carries a maximum penalty of 14 years in jail.
Defences Against Assault Charges
As with any charge, an allegation of assault is just that, an allegation. Until a charge is proven beyond a reasonable doubt in court, it remains an allegation only. It is not unusual, particularly in minor “common” assault cases, for there to be little or no forensic evidence. There may be no witnesses outside of the complainant and the accused. In cases where the version of events differ, the accused can always take the witness stand to explain their version of what happened. As the accused only ever has to raise a doubt, and not prove anything, these defences are frequently successful.
Other defences, such as consent, can also apply in certain circumstance. It is also possible to dispute the additional factors of bodily harm or use of a weapon.
Self-defence also applies in certain cases, depending on the facts.
As with any charge, it is very important to obtain legal advice from an experienced trial lawyer before going to court or entering a plea. Only after carefully reviewing the disclosure together can the accused and defence counsel determine the best strategy to defend an assault charge.
Contact one of our lawyers to learn more about assault charges. If you’ve been charged with assault, contact McGlashan & Company immediately.