La loi vos droits

Offenders and Accused Persons - Offences

Assault

An individual commits assault when he uses or threatens to use force against another, without that person’s consent. Assault is subdivided into different categories, such as sexual assault, assault with a weapon, and aggravated assault. Many different acts might qualify as assault.

In this Infosheet, Éducaloi describes the various types of assault, the legal defences against it, and how the law punishes assault convictions.

What is "assault"?

The Criminal Code gives a general definition of assault, which applies to different types of offences.

First, there is simple assault, for which a convicted person can serve a maximum prison sentence of 5 years. The Criminal Code sets out three ways in which the offence of simple assault may occur:

• By applying force against another person.
  
  Any force intentionally applied against another person without his consent is an act of assault. The amount of force involved may be significant or minimal (e.g., punching a person in the face, slapping a person, throwing someone to the ground, spitting at someone, grabbing her arm, etc.). An assault may even occur without any physical contact. For example, simply pouring a glass of water on someone can be considered assault.
  
  
• Through threatening acts or gestures.
  
  A person could be charged with assault if his acts or gestures make you fear for your safety or the safety of someone you know. So threats of force (“I’m going to hit you!”) or menacingly raising your hand against someone else is considered an assault. Note: This is different from the offence of “uttering threats of death or bodily harm.”
  
  
• By carrying a weapon.
  
  Finally, assault is committed when a person carrying a weapon – or an imitation of a weapon – begs, bothers, or intimidates another person. An example might be a person asking for change while carrying a dagger on her belt. Be careful not to confuse this offence with “assault with a weapon,” which requires proof that the weapon was actually used.

What are the different types of assault?

The Criminal Code has classified different assault offences according to the level of violence used, the context in which the violence occurred, or who the victim is. Here are the main offences:

• simple assault;
  
• assault with a weapon or causing bodily harm;
  
• aggravated assault;
  
• threatening death or bodily harm;
  
• sexual assault (to find out more, see the Infosheets entitled Sexual assault  (http://www.educaloi.qc.ca/en/loi/offenders_and_accused_persons/12/) and Sexual assault of children  (http://www.educaloi.qc.ca/en/loi/offenders_and_accused_persons/215/));
  
• sexual assault with a weapon or causing bodily harm;
  
• aggravated sexual assault;
  
• assaulting a peace officer;
  
• torture.

What is assault with a weapon or causing bodily harm?

The offence of assault with a weapon or causing bodily harm is committed when a person carries, uses, or threatens to use a weapon or an imitation (fake) weapon while committing assault. It is not necessary for the aggressor to actually use the weapon. It is enough that the aggressor has the weapon in his possession.

An assault causing bodily harm occurs when the victim is injured.

Anyone convicted of committing these offences can be sentenced to a maximum prison term of 10 years.

What is assault on a peace officer?

This offence requires proof of assault against:

• a police officer in the execution of her duties;
  
• a public servant in the execution of her duties;
  
• a person who is assisting a police officer or public servant;
  
• any person, where the assault occurs while resisting or preventing a legal arrest or detention (citizen’s arrest); or
  
• a person who is executing a judicial act (for example, a bailiff during the seizure of property).

A person convicted of committing this offence can be sentenced to a maximum prison term of 5 years.

What is aggravated assault?

The offence of aggravated assault requires proof that the victim has been severely injured, mutilated, disfigured, or that his life was endangered by the aggressor. This offence includes excision and female genital mutilation. It carries a maximum prison sentence of 14 years.

What does the law mean by consent?

According to the law, an assault claim cannot be made where the parties consented to the act. Consent is defined as agreeing to the harm. Consent is valid only if it is given of the person’s own free will.

According to the Criminal Code, consent is not valid if the victim agreed to the act because of:

• fear;
  
• the application of force, threats, or fraud;
  
• the exercise of authority.

In sports like boxing, football, or hockey, players consent to getting hit by other players. However, the courts have ruled that no person can consent to receiving blows causing serious injury or death while playing an aggressive sport. So even if a hockey player should expect to be checked against the boards during a game, if another player hits him in the face with a stick, this is assault. This same limit on consent applies outside the world of sports to other cases of violent combat.

Can a defendant validly claim a mistaken belief in consent?

In some cases, a person can claim to have sincerely believed that the other person had agreed to be harmed. For this type of defence to succeed, the accused must prove his good faith. He must show that he truly believed that the victim consented to the harm. If the aggressor simply acted without thinking or wasn’t sure that consent was given, he cannot use this type of defence.

What constitutes self-defence?

If accused of assault, you can argue self-defence if the both of the following conditions apply:

• You were attacked by the complainant without any reason or provocation;
  
  
• You defended yourself using only the force that was necessary.

In Canada, does excision constitute a case of aggravated assault?

According to the law, a person who excises, infibulates, or mutilates, in whole or in part, the labia majora, labia minora, or clitoris of a person is causing a wound or mutilation. Such a person can be accused of aggravated assault, except if the act occurs under the following circumstances:

• During a surgical procedure, performed by a qualified medical practitioner, for the benefit of the physical health of the person, or for the purpose of ensuring that the patient has normal reproductive functions or a normal sexual appearance or function; and
  
  
• The person is at least eighteen years old and has consented to the surgical procedure as performed by a qualified medical practitioner.

If I have unprotected sexual relations with a person and he does not inform me that he has HIV or AIDS, is this an assault?

Yes, this is considered to be a sexual assault. Sexual assault occurs when a person has sexual relations with someone without her consent. In this case, your consent is considered invalid because you probably wouldn't have made the same decision had you known your partner was HIV positive.

Moreover, the victim does not actually have to contract HIV for this to be considered an assault. It's enough that the person failed to disclose his illness.

The same rule applies for all other serious sexually transmitted infections.