In this article, I distinguish between non-domestic assaults and threats and domestic assaults and threats. The reason for this distinction is that most courthouses do the same. Domestic assaults refer to assaults committed by people who are in or have been in a relationship with the complainant. Often they are also termed “spousal assaults”. Indeed, specially trained Crown Attorneys are often assigned to “domestic assault” cases. The purpose of this article is to summarize some of the issues surrounding non-domestic assaults and threats, and includes Assault, Assault with Weapon, Assault Causing Bodily Harm, Aggravated Assault, Assault Police Officers and Uttering Threats. If you are charged with Domestic Assault or with Sexual Assault, please refer to those articles as again, they are very specific types of assault.
What follows is a brief summary of the law. While it is not, and should not be relied upon as legal advice, it may assist you with some of the questions you might have. As always, consult a criminal lawyer should you need criminal advice.
All Assault and Threats offences are listed in the Criminal Code of Canada: http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html. For ease of reference, I will discuss some of them below.
Uttering Threats:
264.1(1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat
(a) to cause death or bodily harm to any person;
(b) to burn, destroy or damage real or personal property; or
(c) to kill, posion or injure an animal or bird that is the property of any person
Dealing with s. 264.1(1)(a) as an example, there are several things that the Crown must prove in order for someone to be found guilty. The Crown must prove that: (a) the defendant made a threat, (b) the threat was to cause bodily harm or death to another, and (c) that the defendant “knowingly” made the threat. A threat may be made in several ways including by say of an oral statement or by means of writing. Further, it can be a direct threat or it can be made conditional on some event. For example, in law, it could be a threat to say to someone “If you walk on my lawn again tomorrow, I will break your legs” or “If you don’t get rid of that garbage in your backyard, I will shoot you”. The Court looks at the utterance objectively, that is, what a “reasonable person” would give to the words. If, to a reasonable person, the words could not be taken seriously, they would not constitute a threat. Therefore, the Court will take into consideration the circumstances in which the words were used, the manner in which they were communicated, and to whom they were addressed.
There is no minimum penalty for Uttering Threats. The maximum penalty, if the Crown proceeds by Indictment, is imprisonment for five years.
Assault:
265(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) This section apples 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.
To find a person guilty of assault, the Crown must prove that: (a) the defendant intentionally applied force to another, (b) the other person did not consent to the force that the defendant intentionally applied, and (c) that the defendant knew that the person did not consent to the force that was applied. The force in question can be direct or indirect (for example, using an object), violent or gentle. To constitute an “assault” though, the force must be applied intentionally (on purpose) against another’s will.
There are several defences to assault related offences. Assuming that it can be proven that it was indeed the defendant that applied the force, the Crown must prove that the complainant did not consent to the assault. As long as no bodily harm is caused, two people can consent to a fight. To be clear, the Crown must prove beyond a reasonable doubt that the complainant did not consent to the intentional application of force in the circumstances in which it occurred. Consent involves a voluntary agreement where the complainant must know what is going to happen, or what the defendant was going to do and freely decide to let the defendant do it. Further, the consent must be freely given.
Self-defence might also apply in assault cases and it just one defence available. A person can use force against another in cases of self-defence. This is a complicated area of criminal law but the law allows the use of force in defending ourselves (and sometimes others) from attack. In all assault cases, it is the Crown’s responsibility to prove beyond a reasonable doubt that the force that was used was not justified.
Assault Causing Bodily Harm and Assault Causing Bodily Harm:
267 Every one who, in committing a assault,
(a) carries, uses or threatens to use a weapon or an imitation thereof, or
(b) causes bodily harm to the complainant.
In addition to the elements that the Crown must prove in all assault cases, to find someone guilty of Assault with Weapon, the Crown must prove that a weapon (or imitation weapon) was involved in the assault. A “weapon” is defined in the criminal code as any object that could be or is used to injure, kill, threaten or intimidate another person, whether it was designed or made for that purpose or not.
Similarly, to prove someone guilty of Assault Causing Bodily Harm, the Crown must prove that: (a) the defendant intentionally applied force to the victim and, (b) the force that was applied caused the victim bodily harm. “Bodily Harm” means 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:
268 Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.
To find someone guilty of Aggravated Assault, the Crown must prove that: (a) there was an intentional application of force, and (b) the force applied wounded the victim. To “wound” means to maim, disfigure or endanger life. This is a much more serious offence than simple “assault” and carries with it, much more significant penalties.
There are numerous ways to defend against all assault related charges and I have successfully defended people against them numerous times – please refer to my Recent Successes page. The consequences to receiving a conviction for any assault charge are significant and you should consult with a criminal lawyer to discuss these and other issues.
Again, the foregoing is only a summary. It is not legal advice and should not be relied upon as such. For a free consultation to discuss your case, please call me at 416-658-5855.
