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The topics in the Dial-A-Law series provide general information on a wide variety of legal issues in the Province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation.
This topic will discuss the various offences of assault under the Criminal Code of Canada.
Assault can be either a civil wrong or criminal offence. Civil assault differs from criminal assault. In a civil assault case you may receive damages from the defendant if you can prove that you had a reasonable belief that someone was going to inflict immediate physical harm on you. In a civil assault, there are no charges laid by the police and there is no criminal record if you are found liable in civil Court. A charge of criminal assault can be laid by the police or by the person who has been assaulted. A conviction on a criminal assault will result in a criminal record.
The criminal code defines assault in two ways. The first instance in which an assault can occur is when a person intentionally applies force either directly or indirectly to another person without their consent. Examples of this kind of assault include punching, pushing, slapping, kicking, or even spitting. In order to be convicted of this offence, it is necessary for the crown to demonstrate that you applied force to the victim and that the victim did not provide consent to the act. The second way an assault can occur is when an offender attempts or threatens by way of an act or gesture to apply force to another person causing that person to believe on reasonable grounds that the perpetrator will carry through with their intent to assault. In order to be convicted of this offence the prosecutor must show that the offender engaged in an act which threatened force and that the victim had a reasonable and credible belief that the offender would inflict harm on them. On a less serious assault charge, the Crown prosecutor can prosecute the charge as a summary conviction offence. If you are prosecuted with the indictable form of the offence, you could face up to 5 years imprisonment (in jail).
Like many other offences, there are various degrees of assault. Aggravated assaults are the most serious, and therefore have the harshest penalties attached. A person commits an aggravated assault when their actions leads to the victim being wounded, maimed, disfigured or causes their life to be endangered in any way. In order to be convicted of this offence, it must be demonstrated that your actions objectively viewed could have caused bodily harm to the plaintiff and that your actions actually caused the harm to the plaintiff. A person can never consent to being subjected to an aggravated assault. Aggravated assault is an indictable offence containing a maximum penalty of 14 years in prison if convicted.
Assault causing bodily harm and assault using a weapon or threatening to use a weapon are other rather serious forms of assault. Assault causing bodily harm occurs when the defendant’s actions has caused any injury to the victim which interferes with their health or comfort. In addition to establishing the elements of assault, the crown must demonstrate that you caused the victim injury through your actions and that you were aware of or reckless to the fact that your actions could have caused the injury. Assault using or threatening to use a weapon occurs when an offender uses or threatens to use a real or imitation weapon against the victim. To be found guilty of this offence, it must be proven that you did in fact use or threatened to use a weapon as defined by the criminal code and that you did commit an assault on the victim. If you are found guilty of either of these offences you could face up to 10 years in prison, if prosecuted as an indictable offence, or alternatively, a maximum of 18 months in prison if prosecuted summarily.
Consent to the use of force in a simple assault is not an assault. However, there are certain circumstances where even if consent to an assault was given, it may not be accepted as valid by the Court. For example, there is never consent where someone uses their position of authority, trickery or fraud to get the victim to submit to the act. Consent is also not obtained where a victim consents because force is used or threatened against their own person or another person. For example, if a woman consents to being assaulted because her husband is threatening to hurt their child, there is no consent. As a matter of law, you cannot consent to an assault with a weapon, assault causing serious bodily harm or aggravated assault. Thus, if you are involved in a fist-fight or bar brawl and your combatant seriously injures you, the Court will find that you did not consent to the assault and the offender will accordingly face charges of either assault causing bodily harm or aggravated assault.
If you have been charged with any type of assault, you should seek legal advice immediately.
Calgary Legal Guidance offers special services for victims of domestic assault. For more information, please call 403-234-9266.