Acts of violence, or threats of violence, can result in severe consequences in Canada. Most people will either witness or be involved in some sort of physical confrontation in their lifetime. The Criminal Code has multiple offences that cover this type of conduct, such as uttering threats, assault, assault with a weapon, assault causing bodily harm, or aggravated assault. There are also defences available beyond taking the position that the act did not occur, such as consensual fights, self-defence, or defence of other people or property.
It is not uncommon to hear people threaten one another, especially during arguments. Most know that this conduct is criminal, however, few know the specific details. Under section 264.1(1) of the Criminal Code, it is an offence for a person who, in any manner, knowingly utters, conveys or causes any person to receive a threat to:
- To cause death or bodily harm to any person
- To burn destroy or damage real or personal property; or
- To kill, poison or injure an animal or bird that is property of any person
Uttering threats is a hybrid offence. This means the Crown can decide to proceed either summarily or by indictment. It is important to note that the punishments vary depending on the type of threat. For item a), there is a maximum of 18 months in jail if the Crown proceeds summarily, or 5 years in jail if the Crown proceeds by indictment. For items b) and c), there is a maximum of 6 months in jail if the Crown proceeds summarily, or 2 years if the Crown proceeds by indictment. All of these offences can carry a fine alone or in addition to the custodial sentence, the maximum for summary conviction being $5000.
Under section 265(1) of the Criminal Code, assault occurs when a person applies force to another intentionally either directly or indirectly, without that person’s consent. For an assault to occur, many are surprised to learn that no physical contact is necessary. Threatening or attempting to apply force to another person by act or gesture alone will suffice to make out the offence. If the other person believes on reasonable grounds that the aggressor has the ability to carry out his purpose, based on the gesture, this can constitute assault. Openly wearing or carrying a weapon or imitation weapon while accosting or impeding another person, is assault as well and could be charged with the more serious offence of assault with a weapon.
The maximum penalty if the Crown proceeds by indictment is 5 years in prison. For a summary conviction, the maximum is 18 months. Both can carry a fine alone or in addition to a custodial sentence.
Assault with a Weapon/Assault Causing Bodily Harm
Under section 267 of the Criminal Code, everyone who, in committing an assault carries, uses or threatens to use a weapon or an imitation thereof, or causes bodily harm to the complainant is guilty of an offence.
The Criminal Code defines bodily harm as “any hurt or injury to a person that interferes with the health or comfort of the person and is more than merely transient or trifling in nature.”
A weapon is broadly defined by the Criminal Code. A weapon means any thing used, designed or intended for use to cause death or injury to any person; or used or designed for the purpose of threatening or intimidating ay person. A weapon includes a firearm. This means that any regular item can become a weapon for the purpose of this charge. For example, if a person intentionally threw a sippy cup at someone’s head – the sippy cup would be considered a weapon and the person could be charged accordingly under section 267 of the Criminal Code.
The punishment for this offence is more serious than for simple assault. If the Crown proceeds summarily, 18 months is the maximum term of imprisonment. If the Crown proceeds by indictment, the maximum prison term is 10 years.
Under section 268(1), everyone commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. This offence carries a maximum prison term of 14 years.
It is noted under section 265 that no consent is obtained where the complainant submits or does not resist by reason of:
- the application of force to the complainant or to a person other than the complainant
- threats or fear of the application of force to the complainant or to a person other than the complainant;
- fraud; or
- the exercise of authority
There are two other areas that involve consent in relation to assault: consensual fights and sports. A consensual fight is just as it sounds, when two people agree to fight. In sports, it does not constitute assault if the conduct is a normal part of the sport. In both cases, consent is vitiated if non-trivial bodily harm is intended.
Use or threat of force for self-defence or defence of another is found under section 34 of the Criminal Code. The person must believe on reasonable grounds that force or threat of force is being used against themselves or another person. The act must be committed for the purpose of defending or protecting themselves or another person from that use or threat of force, and the act must be committed must be reasonable in the circumstances. These three elements must be present for the defence of self or another.
In determining whether the act committed was reasonable in the circumstances, many factors will be considered, including the proportionality between the threat and the response taken to defend against the threat. The factors include the nature of the force, imminence of the force or threat, the person’s role in the incident, whether any party used a weapon, size, age, gender, physical capabilities, the history of any relationship between the parties, and other factors.
Defence of property also exists. This defence requires a belief on reasonable ground that another person is entering the property without being entitled by law to do so, is about to take, damage, destroy, or render the property inoperative. The act must be committed to prevent the other person from entering the property or to remove that person; or to prevent that person from taking, damaging, destroying, or making the property inoperative. The act and use of force must be reasonable in the circumstances.
If you have been involved in an assault or are being wrongly accused, your first step should be to contact us at Weisberg Law. Our legal expertise will be able to help you understand the severity of the situation, your legal options, and how best to move forward.