Assault is a criminal offence under section 265 of the Criminal Code of Canada and is defined in the Code as follows:
- (1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
265 (2) states that the section above applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault. There are several statutory and common law defences for the charges of assault that vary, and for the purpose of this article, the defences discussed below will be pertaining to the criminal charge of assault in its basic form.
Self-Defence: Were You Protecting Yourself?
If an altercation occurred and you reasonably believed that your safety, or the safety of another person, was in danger, self-defence is a strong defence to help fight your charge. But self-defence is not as simple as saying, ‘they started it, and I fought back’. This would open the floodgates to altercations escalating between parties as opposed to using alternative methods such as calling the police. Under section 34, the law considers whether the accused reasonably believed that force or a threat of force was being used against them or another person, whether they acted for the purpose of defending or protecting themselves or that person, and whether their response was reasonable in the circumstances. That last requirement is particularly important. Section 34(2) identifies numerous circumstances that may be considered for the last requirement, including the nature of the force or threat, whether weapons were involved, the parties’ relative size and physical capabilities, their relationship and history, and the accused’s own role in the incident. This is where the context of the situation is analyzed on a close level, as the courts determine all factors relating to the incident, and whether self-defence was truly justified.
Duress: Were You Forced to Do It?
What happens when the accused intentionally commits an assault, but only because someone else threatened serious harm on them? This is a statutorily established defence. Section 17 of the Criminal Code addresses compulsion by duress, while the common law has also developed the defence of duress. At its core, duress recognizes that there may be circumstances where a person commits an offence because they have been placed under sufficiently serious threats or compulsion. The physical act may have been intentional, but the circumstances surrounding why the accused acted become more important. Not every threat or form of pressure will amount to duress. This is a high standard to meet. The seriousness of the threat, whether the accused reasonably believed it would be carried out, the relationship between the threat and the offence, and whether there was a safe and possible avenue of escape can all become relevant. Simply put, duress raises a fundamentally different question: did the accused realistically have a safe choice not to act? In this case duress is different from self-defence because self-defence asks whether you were justified in fighting back, while duress asks whether someone else was pulling the strings that forcibly led to your actions.
Consent: Was the Contact Actually Unwanted?
As mentioned above, under section 265(1)(a) of the Criminal Code of Canada, a person commits an assault when they, without the consent of another person, intentionally apply force to another person, directly or indirectly. Let’s break that provision down. The first important word is ‘consent,’ which can become central to defending an assault charge. Consent is one of the first considerations in an assault case because the offence itself requires force to be applied without the consent of another person. However, the law places important limits on what actually counts as consent. Section 265(3) of the Criminal Code provides that no consent is obtained where the complainant submits or does not resist by reason of:
- the application of force to the complainant or another person;
- threats or fear of the application of force to the complainant or another person;
- fraud; or
- the exercise of authority.
In other words, a lack of resistance does not automatically amount to consent. The circumstances surrounding the interaction matter. There is also another side to this issue, known as an accused’s belief as to consent. Section 265(4) addresses circumstances where the accused says that they believed the complainant consented to the conduct forming the subject matter of the charge. Where there is sufficient evidence capable of supporting that position, the accused’s belief in consent may constitute a defence. Consent can therefore become much more complicated than simply asking whether somebody said “yes” or “no.” What was communicated, what the accused honestly understood, and the circumstances surrounding the interaction can all become significant factors to consider.
Accidental: Was the Contact Intentional?
Recall the word ‘intentionally’ in the definition of assault mentioned above? An assault is not established simply because physical contact occurred or because someone was injured. The Crown must prove the mandatory elements of the offence, including that the accused intentionally applied force to another person. This raises an important question: was the physical contact actually intended? If someone turns around and accidentally hits another person with their arm, causing them to suffer an injury, the injury itself does not transform an accident into an assault. The required intention must still be proven as per the legislative wording. This principle can become particularly important where the alleged application of force was reflexive or involuntary.
NCRMD: Were you Criminally Responsible?
A mental disorder can also affect whether an accused is criminally responsible for an assault. Under section 16 of the Criminal Code, an accused may be found not criminally responsible on account of mental disorder, commonly referred to as ‘NCRMD’, where a mental disorder rendered them incapable of appreciating the nature and quality of the act or omission, or incapable of knowing that it was wrong. The existence of a mental disorder alone is not enough. The important question is how that disorder affected the accused at the time the alleged offence occurred. As per section 16(3), the burden of proof that an accused was suffering from a mental disorder to be exempt from criminal responsibility is on the party that raises the issue.
Beyond A Reasonable Doubt: Can the Crown Meet This Requirement?
Finally, sometimes the strongest defence is the most fundamental one: the Crown simply cannot prove its case beyond a reasonable doubt. The beyond a reasonable doubt standard in criminal proceedings reflects what is ultimately at stake in criminal law: a person’s liberty, reputation, and future. An accused does not have to prove their innocence; the burden remains on the Crown to establish every essential element of the crime to the required standard. Without the Crown meeting this burden, there can be no conviction of guilt. In hindsight, this is the most reliable and steadfast defence any accused person can seek protection under.
Reach Out To Our Team: Find the Defence That Works For You
An assault charge can carry serious legal consequences and have a lasting impact on a person’s reputation, employment, relationships, and future. At Karapancev Law, our skilled team of lawyers will find the legal defence that works best for your circumstances. Our goal is to ensure that every defence is carefully considered and advanced on your behalf. Contact us for next steps and a free initial consultation to convey how we can provide the best defence possible for you.
