Assault and Battery

Assault encompasses a variety of offences. You don't have to physically touch someone to be charged. The mere act of threatening to harm someone could find you in a courtroom facing a trial that can leave you imprisoned with a criminal record. During the pandemic, even wilfully trying to spread COVID-19 can lead to a charge of assault. The Globe and Mail chronicled incidents where people claiming to have the virus were arrested for spitting at police officers or coughing on neighbours or bus drivers.

Assault is covered under the Code starting at s.265 and occurs in three ways:

• when intentional force is applied directly or indirectly without the consentVoluntary agreement to engage in an sexual act of another person;
• when someone threatens either by act or gesture to apply force to another person; and
• when someone confronts another person while openly wearing or carrying a weapon or imitation weapon.

Any form of assault is considered a violent crime and the consequences can be severe.

Simple, or common, assault

This is the most basic assault charge covering incidents not involving a weapon. It can be something as minor as a shove or as serious as a fistfight. It is common in domestic situations. If you are charged with simple assault, the Crown could proceed with a summary convictionLess-serious criminal offences that may not result in a jail term. However, more serious cases can be treated as indictable offenceA more serious type of Canadian criminal offence.s that could mean prison.

Assault causing bodily harm

You can be charged with assault causing bodily harm if the victim has suffered injuries, which can range from cuts to broken bones. The Criminal 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."

Aggravated assault

Aggravated assault is the most serious type of assault and is an indictable offence in Canada. You can be charged if the victim is wounded, maimed, disfigured or if their life is endangered.

Assault with a weapon

According to the Code, any object used to cause harm or intimidate someone can be considered a weapon. This definition goes beyond the typical notion of weapons being firearms or blades and encompasses items such as a shovel, a frying pan, or even a pencil. If someone uses one of these objects to threaten or cause harm, they could face charges of assault with a weapon.

Sexual Assault

Sexual assault is defined under s.271 of the Criminal Code as "any unwanted sexual act done by one person to another or sexual activity without one person's consent or voluntary agreement." If you touch a person in a manner that interferes with their sexual integrity, including kissing, touching, intercourse and any other sexual activity without the victim's consent, you can face charges.

Aggravated Sexual Assault

Under s.273 (1) of the Code, you can be charged with aggravated sexual assault if you maim, wound, disfigure or otherwise endanger the victim's life while committing a sexual assault.

Sexual Assault with a Weapon

Section 272 (1) of the Code states that there are a variety of reasons why you might be charged with sexual assault with a weapon. They include that you threatened or carried a weapon, or used it to cause bodily harm to the victim, or if you choked or suffocated someone.) You can also be charged if you take part in the offence with another person.

Assaulting a Peace Officer

The charge of assaulting a peace officer, covered under s.270 (1) of the Criminal Code, protects not only police but those in public service such as corrections officers, court bailiffs and bylaw officers. This charge comes into play if you resist arrest, assault a police officer in the line of duty, or prevent or attempt to prevent an officer from carrying out their assignment.

Although the charge of assault can be complex, the burden to gain a conviction is quite simple. The Crown prosecutorA lawyer who conducts a criminal prosecution on behalf of the public. must prove three things beyond a reasonable doubtThe high standard the Crown must meet to prove guilt.: 

1. that you applied force to someone
2. the victim did not consent to that force
3. the force was applied intentionally

A witnessA person who gives evidence in a case. can play an important part in any case, especially when proving the force was not justified. A person cannot usually rely on another person's consent to a fight where the intended force causes serious or non-trivial bodily harm. Limited contexts, such as properly regulated sport or medical treatment, may be treated differently. This issue is fact-specific and should not be described as automatic consent or automatic non-consent. 

You can also claim self-defence. However, if you keep attacking someone when they are down your actions would no longer be justified. You can also defend yourself against an intruder but, again, you cannot use excessive force.

Under the Criminal Code those who commit a simple assault are either guilty of an indictable offence and liable to imprisonment or an offence punishable on summary conviction on lower sentencing guidelines.

In deciding whether to proceed summarily or by indictment the Crown will consider such factors as the seriousness of the allegations and your prior criminal record.

If you have been convicted of a simple assault by summary conviction, the maximum penalty is two years less a day in jail and/or a $5,000 fine. 

If the Crown decides to proceed by indictment the maximum penalty is a prison term of five years. The judge will assess a number of factors in reaching a sentence including the facts of the case and any injuries suffered by the victim.

Of course, the penalties increase for more serious assault charges. 

Assault with a weapon or assault causing bodily harm carries a maximum penalty of two years less a day in jail, a fine of up to $5,000, or both if the Crown proceeds by summary conviction, or 10 years in prison if the Crown proceeds by indictment.

The maximum penalty for aggravated assault is 14 years in jail. 

An assault conviction will be reflected on your criminal record and you could also face a firearm ban.

The Criminal Code does not use 'battery' as an offence name. Conduct that U.S. law may call battery is usually covered in Canada by the Criminal Code definition of assault in s. 265 and charged as assault under s. 266 or another assault offence.