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This article last updated January 16, 2002.
An assault is the intentional application of force, directly or indirectly, to another person without that person's consent.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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. (See news story.)
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:
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.
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."
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