Application of force
An assault is the intentional application of force, directly or indirectly, to another person without that person’s consent.
Threat to apply force
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 $5,000 or six 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. In addition, you may have to participate in counselling for anger control and, if alcohol was involved, for substance abuse.
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.”
You are justified in using force to defend yourself against an unlawful assault provided you did not provoke the assault and the force you use 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 you to defend yourself.
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 one court observed: “Detached reflection cannot be demanded in the presence of an uplifted knife.”
You may be acting in self defence even though no assault actually takes place provided you reasonably, albeit mistakenly, believe 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.
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.
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 in 2004 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.
Limits set for spanking
In its 2004 ruling upholding the corporal punishment defence, the Supreme Court of Canada set limits on its use:
- Corporal punishment of teenagers is impermissible. It achieves only short-term compliance and carries with it the danger of alienation from society, along with aggressive or otherwise anti-social behaviour.
- Corporal punishment using objects such as belts, rulers, etc., is potentially harmful both physically and emotionally and cannot be tolerated.
- Corporal punishment should never involve a slap or blow to the head.
- Corporal punishment which causes injury is child abuse.
Elimination of spanking defence imminent
The Trudeau government announced in December 2015 that it intends to repeal Section 43 as part of its greater pledge to implement all 94 recommendations of the Truth and Reconciliation Commission that investigated the legacy of the Indian residential school system. The commission said corporal punishment was “a relic of a discredited past and has no place in Canadian schools or homes.” Definition and Penalties
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.
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 his or her 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 or she 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.
Protection of others
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.