Being charged with assault in Canada can be frightening and confusing. You may be dealing with police conditions, a court date, a no-contact order, employment concerns, or the possibility of a criminal record.
But being charged with assault does not mean that you are guilty.
Canadian criminal law requires the Crown to prove the charge beyond a reasonable doubt. Depending on the circumstances, an assault allegation may also raise issues involving consent, self-defence, identification, credibility, intent, or whether the Crown can prove the required elements of the offence.
Understanding what assault means under the Criminal Code, what happens after a charge, and what options may be available is an important first step.
What Is Assault Under Canadian Law?
The legal definition of assault in Canada is broader than many people realize.
Section 265 of the Criminal Code provides that a person commits an assault where, without the consent of another person, they intentionally apply force to that person, directly or indirectly.
Assault can also occur where a person attempts or threatens, by an act or gesture, to apply force and has the present ability to carry out the threat, or causes the other person to reasonably believe that they have that ability.
The law also addresses certain conduct involving a person openly carrying or wearing a weapon or imitation weapon.
Importantly, physical injury is not required for an assault charge.
Depending on the circumstances, conduct such as pushing, grabbing, shoving or striking another person may potentially constitute assault. A threat accompanied by conduct that causes the complainant reasonably to believe that force can be used may also fall within the definition.
Consent can be an important issue in an assault case. The circumstances surrounding the alleged contact, the relationship between the parties, what happened immediately before and after the incident, and the evidence available to the Crown can all become relevant.
What Are the Different Types of Assault Charges in Canada?
The Criminal Code contains several assault-related offences. The seriousness of the allegation generally depends on what is alleged to have happened and whether there are aggravating circumstances.
1. Simple Assault — Section 266
Section 266 applies to assault generally where the circumstances do not result in one of the more serious assault offences.
Simple assault is a hybrid offence. This means the Crown may proceed by summary conviction or by indictment.
If prosecuted by indictment, the maximum penalty under s. 266 is five years’ imprisonment. If prosecuted summarily, the applicable summary-conviction sentencing provisions apply.
A simple assault allegation can arise from an incident that did not cause significant physical injury. That does not necessarily mean, however, that the case is minor from a legal or practical perspective.
Factors such as the circumstances of the incident, the relationship between the parties, prior criminal history, injuries, and any applicable aggravating circumstances can affect how the case is resolved.
2. Assault With a Weapon or Causing Bodily Harm — Section 267
Section 267 creates a more serious assault offence where, in committing an assault, a person:
- carries, uses or threatens to use a weapon or imitation weapon;
- causes bodily harm to the complainant; or
- chokes, suffocates or strangles the complainant.
Section 267 is also a hybrid offence.
If prosecuted by indictment, the maximum penalty is 10 years’ imprisonment.
The presence of an alleged weapon, injury, or allegation of strangulation can significantly change the seriousness of an assault prosecution and may affect bail, sentencing exposure and defence strategy.
3. Aggravated Assault — Section 268
Aggravated assault is one of the most serious assault offences under the Criminal Code.
Section 268 applies where a person wounds, maims, disfigures or endangers the life of the complainant.
Unlike simple assault and assault under s. 267, aggravated assault is an indictable offence.
The maximum penalty is 14 years’ imprisonment.
An aggravated assault allegation therefore requires particularly careful legal assessment of the medical evidence, circumstances of the alleged incident, intent, identification, causation and any available defences.
Does Assault Require Physical Injury?
No.
One of the most common misconceptions about assault in Canada is that the complainant must have suffered an injury.
That is not the law.
Section 265 focuses, among other things, on the intentional application of force without consent. The force does not have to cause an injury for the conduct to potentially constitute assault.
This is why an allegation involving a push, shove, grab or other unwanted physical contact can result in a criminal charge even where the complainant did not require medical treatment.
The absence of injury may nevertheless be relevant to the overall assessment of the case, including the nature of the allegation, the applicable charge and potential sentencing consequences.
Is Assault a Hybrid Offence in Canada?
Some assault offences are hybrid offences and others are indictable offences.
Simple assault under s. 266 is hybrid. Assault under s. 267 is also hybrid. Aggravated assault under s. 268 is indictable.
A hybrid offence gives the Crown the ability to proceed by summary conviction or indictment, subject to the applicable law and circumstances.
The mode of proceeding can have important procedural and sentencing implications. It is therefore important to understand exactly what section of the Criminal Code appears on the charging document and how the Crown intends to proceed.
What Happens After You Are Charged With Assault?
What happens after an assault charge depends on the circumstances.
You may be released by police with an appearance notice or undertaking and given a date to attend court. Alternatively, you may be held for a bail hearing.
The Criminal Code establishes a framework for release and detention. In general, the court must consider whether detention is justified, including issues relating to attendance in court, public safety and the administration of justice.
For assault allegations, particularly those involving intimate partners or other allegations of violence, release conditions can be an important issue.
What Are Common Assault Bail Conditions?
Depending on the circumstances, an accused person may be released subject to conditions.
These can include:
- no contact with the complainant;
- no contact with particular witnesses;
- staying away from a particular residence or location;
- restrictions concerning weapons;
- reporting to a bail supervisor;
- residing at a particular address; or
- other conditions considered necessary in the circumstances.
A no-contact condition can have significant practical consequences, particularly where the complainant is a spouse, partner, family member, roommate, employee or co-worker.
Do not assume that a complainant’s willingness to communicate automatically permits contact.
If your release order says that you must not contact someone, you should comply with the condition unless and until it is lawfully changed.
Breaching a release condition can create a separate criminal-law problem and may result in a new arrest or a review of your release.
What Happens at the First Court Appearance?
The first court appearance is generally not the stage at which the entire assault case is decided.
The court process may involve confirming the charge, addressing representation, dealing with disclosure and determining the next procedural steps.
The Crown’s disclosure may contain important evidence, including:
- police notes;
- witness statements;
- photographs;
- video surveillance;
- body-worn camera footage;
- 911 recordings;
- text messages;
- photographs of injuries;
- medical records;
- statements made by the accused or witnesses; and
- other evidence collected during the investigation.
A criminal defence lawyer should carefully review the disclosure before advising you about the appropriate strategy.
Why Is Disclosure So Important in an Assault Case?
Assault cases frequently turn on competing versions of events.
The complainant may describe one version of what happened while the accused describes another.
The critical question is not simply who made an allegation first.
The defence must examine the evidence as a whole.
For example, the disclosure may reveal:
- inconsistencies between different statements;
- witnesses whose accounts do not support the allegation;
- video evidence that contradicts a witness’s account;
- messages that provide additional context;
- evidence supporting self-defence;
- identification problems;
- inconsistencies regarding the timing or location of the incident; or
- weaknesses in the Crown’s ability to prove one or more elements of the offence.
This is why an accused person should generally obtain legal advice before attempting to explain the incident to police or the Crown.
What Defences Can Apply to an Assault Charge?
There is no single defence that applies to every assault case.
The appropriate defence depends on the evidence.
Self-Defence
Self-defence is recognized under s. 34 of the Criminal Code.
Among other requirements, the accused must have reasonably believed that force or a threat of force was being used against them or another person, acted for the purpose of defending or protecting themselves or another person, and acted reasonably in the circumstances.
The court considers the circumstances of the incident when assessing whether the response was reasonable.
Issues such as the nature of the threat, whether the threat was imminent, the parties’ roles, whether a weapon was involved, the history between the parties, and the proportionality of the response may be relevant.
Lack of Intent
Where the offence requires intentional application of force, the circumstances surrounding the alleged contact may become important.
An accidental physical contact is not automatically an assault simply because another person was touched.
The Crown must prove the required elements of the particular offence.
Mistaken Identity
Where the identity of the person who allegedly committed the assault is disputed, identification can become a central issue.
The defence may examine eyewitness evidence, video footage, photographs, physical evidence and the circumstances in which the alleged identification occurred.
Credibility and Reliability
Many assault cases involve competing accounts.
The court may have to assess the credibility and reliability of witnesses and determine whether the Crown has established guilt beyond a reasonable doubt.
A detailed examination of prior statements, objective evidence, communications and surrounding circumstances can therefore be critical.
Can an Assault Charge Be Dropped or Withdrawn?
An assault charge does not automatically proceed to trial.
Depending on the circumstances, the Crown may consider different forms of resolution.
Possible outcomes can include:
- withdrawal of the charge;
- diversion or alternative measures where legally available;
- a peace bond in appropriate circumstances;
- a guilty plea with an agreed or negotiated sentencing position;
- a discharge where the legal requirements are satisfied; or
- a trial resulting in an acquittal.
However, there is no automatic right to have an assault charge withdrawn simply because the complainant no longer wants to proceed.
In Canada, criminal charges are prosecuted in the name of the Crown. The complainant does not personally control whether the prosecution continues.
The Crown’s position, the evidence, the circumstances of the incident and the interests of justice can all affect the outcome.
Can You Get a Discharge for Assault?
In appropriate cases, a discharge may be available.
A discharge is different from being convicted and sentenced in the ordinary way. However, eligibility depends on the circumstances and the requirements of the Criminal Code.
An absolute discharge and a conditional discharge have different legal consequences.
Whether a discharge should be pursued requires an assessment of factors such as the circumstances of the offence, the accused’s background, the accused’s criminal record, the Crown’s position and the long-term consequences of the available resolutions.
A discharge may be particularly important to consider where avoiding a criminal conviction could have significant consequences for employment, professional licensing, travel or immigration.
What Is a Peace Bond?
A peace bond is another possible resolution in some criminal matters.
A peace bond generally involves an accused agreeing to comply with specified conditions for a particular period.
Depending on the circumstances, the Crown may agree to resolve an assault allegation through a peace bond rather than proceeding with the charge to trial.
A peace bond is not the same thing as an acquittal, and accepting one can have practical consequences. The specific terms should therefore be understood before an accused person agrees to the resolution.
What Are the Consequences of an Assault Conviction?
The consequences of an assault conviction can extend beyond the sentence imposed by the court.
Potential consequences may include:
Employment
Certain employers conduct criminal record checks. A conviction for a violent offence may affect employment opportunities, particularly in positions involving children, vulnerable persons, security, law enforcement or regulated professions.
Professional Licensing
Some regulated professions require disclosure of criminal charges or convictions and may assess whether the conduct raises professional-conduct concerns.
Travel
A criminal conviction can create travel and immigration difficulties in other countries.
For example, people with criminal convictions may encounter difficulties entering the United States depending on the offence and their circumstances.
Immigration
For non-citizens of Canada, criminal charges and convictions can have immigration consequences.
An offence that appears relatively minor from a Canadian criminal-law perspective can potentially create serious immigration issues depending on the person’s status in Canada and the applicable provisions of the Immigration and Refugee Protection Act.
Anyone who is not a Canadian citizen should therefore obtain immigration advice before resolving a criminal charge where immigration consequences may be relevant.
What Should You Do If You Have Been Charged With Assault?
If you have been charged with assault, the steps you take immediately can matter.
1. Do Not Discuss the Facts With Police Without Legal Advice
You have important legal rights, including the right to counsel.
If police want to question you about the allegation, speak with a criminal defence lawyer before providing a substantive statement.
2. Carefully Read Your Release Conditions
If you were released from custody, read every condition carefully.
Do not assume that you can contact the complainant simply because the complainant contacts you first.
3. Do Not Delete Messages or Evidence
Preserve potentially relevant evidence, including:
- text messages;
- emails;
- photographs;
- videos;
- social media communications;
- call records;
- receipts;
- location information; and
- names and contact information for potential witnesses.
Do not alter or delete potentially relevant evidence.
4. Write Down Your Recollection
As soon as reasonably possible, write down what you remember about the incident, including the sequence of events, people who were present, communications before or after the incident, and any potential witnesses.
Do not send the document to the complainant or discuss your version of events with potential witnesses without legal advice.
5. Obtain the Disclosure
Your lawyer should obtain and review the Crown’s disclosure.
The defence strategy should be based on the evidence, not simply on the allegation.
6. Get Legal Advice Before Entering a Plea or Accepting a Resolution
An early resolution may sometimes be beneficial. In other cases, fighting the charge may be appropriate.
The right approach depends on the evidence and the consequences of each available option.
Can You Fight an Assault Charge?
Yes.
Being charged with assault is not the same as being convicted.
The Crown must prove the essential elements of the offence beyond a reasonable doubt. Depending on the circumstances, the defence may challenge the evidence or raise a legally recognized defence.
The appropriate strategy may involve seeking withdrawal of the charge, negotiating an alternative resolution, challenging the admissibility or reliability of evidence, or proceeding to trial.
There is no universal strategy for assault cases.
When Should You Contact a Criminal Defence Lawyer?
As soon as possible.
Early legal advice can be important because decisions made shortly after an arrest or charge may affect the rest of the case.
A criminal defence lawyer can help you:
- understand the charge;
- review your release conditions;
- advise you regarding communication with police;
- obtain and review disclosure;
- identify potential defences;
- assess the strength of the Crown’s case;
- negotiate with the Crown where appropriate;
- assess potential resolutions;
- prepare for trial where necessary; and
- advise you about the potential consequences of a conviction.
Waiting until the eve of trial may mean that important evidence, witnesses or strategic opportunities are more difficult to address.
Frequently Asked Questions About Assault Charges in Canada
Does someone have to be injured for assault to occur?
No. Section 265 does not require the complainant to suffer an injury for conduct to potentially constitute assault.
Can you be charged with assault if you only pushed someone?
Potentially, yes. An intentional application of force without consent can fall within the definition of assault.
Is simple assault a criminal offence in Canada?
Yes. Simple assault under s. 266 is a criminal offence and is a hybrid offence.
Can assault charges be dropped if the complainant does not want to testify?
Not necessarily. The complainant does not personally decide whether a criminal prosecution continues. The Crown makes prosecution decisions based on the evidence and applicable law.
Can you go to jail for simple assault?
Jail is legally possible, but the appropriate sentence depends on the circumstances of the offence, the accused’s background, criminal record, aggravating and mitigating factors, and the available sentencing options.
Can an assault conviction affect immigration status?
It can. The consequences depend on the offence, the person’s immigration status and the applicable immigration legislation. Non-citizens should obtain legal advice before resolving a criminal charge.
What happens if the assault happened between spouses or partners?
Domestic assault allegations can involve additional considerations, particularly regarding release conditions, no-contact orders, family circumstances and potential consequences for both parties.
Do I need a lawyer for a first assault charge?
You are not legally required to have a lawyer in every case, but obtaining legal advice before making important decisions can be extremely valuable. Even a first offence can have consequences that extend beyond the immediate court proceeding.
Final Thoughts: An Assault Charge Is Serious — But a Charge Is Not a Conviction
An assault allegation can have serious consequences, but the mere fact that someone has been charged does not establish guilt.
The circumstances of the incident, the applicable section of the Criminal Code, the Crown’s evidence, the accused’s version of events, available defences and potential resolutions must all be carefully considered.
If you have been charged with assault in Canada, do not ignore the charge and do not assume that the case will simply disappear because the complainant changes their mind.
Get legal advice early, comply strictly with your release conditions, preserve relevant evidence and understand your options before making decisions that could affect your future.
Need Legal Advice About an Assault Charge?
If you or someone you know has been charged with assault in Ontario, Livingstone Law can help you understand the charge, your release conditions, potential defences and the options available to you.
Contact Livingstone Law today to discuss your situation and determine the appropriate next step.
This article is intended for general educational purposes only and does not constitute legal advice or create a solicitor-client relationship. The law can change, and the outcome of any criminal matter depends on its specific facts and circumstances.