Assault Lawyer

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What is an Assault?

According to section 265 of the criminal code,

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,

Can I be charged with an assault if I did not actually touch anyone?

Yes. You can still be charged and convicted of an assault even if you did not actually touch the other individual. In a situation where one attempts to use force against another, without that person’s consent, the offence of assault is made out and a conviction may follow.

For example, if you try to hit another individual and miss because they were able to evade the blow, you can still be found guilty of an assault. If, however, you raise your arm, thinking of hitting another, and then lower the arm having changed your mind, then an argument can be made that you did not possess the guilty mind and that you did not commit the act of an assault.

In circumstance where the attempted use of force is minor, the Crown prosecutor may be inclined to resolve the charges without the need to have a trial and without any criminal consequences.

Is it still an assault if I did not cause any harm?

Yes. The section of assault covers all touching and attempted touching without consent regardless of whether harm ensues. If actual serious harm is caused, one can be charged with, and convicted of, offences that are more serious in nature such as an aggravated assault or an assault causing bodily harm.

Can I be charged with an assault if I was present while someone else hit someone?

In Canadian Criminal Law one can be held responsible for actions of another if they act as parties to one offence. However, mere presence does not make one a party. According to section 21 of the Criminal Code, a person who does or omits to do anything for the purpose of aiding another person to commit an offence or abets another person in committing the offence, is a party to the offence and will be found guilty on that basis. In addition, where two people form a common intention to carry out an unlawful act, both are guilty of the offence.

Omitting to do something, however, must be for the purpose of aiding the commission of an offence. It is not enough that failing to do something had the effect of aiding the offence, the intention to aid the offence, the guilty intention, must be present.

For example, if you choose not to do anything while observing an assault on another, you are not guilty of any offence unless the Crown can prove that your choice to do nothing was for the purpose of allowing the assault to take place.

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