Battery and assault may sometimes be blurred together and both referred to as ‘assault’ but they are, in fact, distinct charges each with their own set of penalties if an individual were to be convicted.
The main difference between battery and assault is that someone can only be charged with battery if they have caused real physical harm to someone while a person can be charged with assault if the mere threat of harm is present. In other words, you could be charged with assault if you shake your fist at another person, leading them to reasonably believe that offensive or harmful contact is imminent. It is crucial to work with a qualified assault lawyer who will help you defend yourself against your charges and understand the exact nature of the offence.
The definition of assault is any intentional act that causes another person to fear an attack or imminent physical harm. Essentially, you can be seen as deserving punishment even if the victim of the assault is not physically harmed. According to Section 265(1) of the Criminal Code, a person commits common assault when:
(a) without the consent of another person, applies force intentionally to that other person directly or indirectly;
(b) they attempt or threaten, by an act or a gesture, to apply force to another person, if they have, or causes that other person to believe on reasonable grounds that they have, present ability to effect their purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs
While battery is not defined in the Criminal Code, the legal definition of battery requires that a person inflict harmful or offensive contact on the victim. Additionally, Section 267 states that an individual commits an assault with a weapon or bodily harm when they commit an assault and:
This section of the Criminal Code along with provision (a) of Section 265(1) reflects what Canadian Law understands as battery.
The sentence that a person receives for assault in Canada will depend on the type/level of assault and the circumstances of the offence. The maximum jail sentence that you could get for being convicted of common assault is five years imprisonment. This is only the case when the Crown proceeds by way of an indictment which is very rare when it comes to common assault. More commonly, the Crown proceeds by way of summary conviction meaning that the maximum penalty you can get is six months imprisonment. When it comes to assault causing bodily harm or assault with a weapon (both more serious than common assault), the maximum jail sentence is ten years if the Crown proceeds by way of indictment and eighteen months if the Crown proceeds by way of summary conviction.
Many assault charges in Canada can be resolved with little to no jail sentence at all. Section 742.1 of the Criminal Code allows the sentencing judge to consider a conditional sentence for common assault. This would mean that the accused would be able to serve their sentence in the community instead of jail. A condition of probation might include attending anger management classes.
It is likely that a judge will issue a restraining order against the defendant which would prohibit them from contacting or seeing the victim.
The defendant may be ordered to pay for the victim’s medical and/or counselling bills if the victim has suffered physical or emotional injuries resulting from the assault. Additionally, the defendant may have to pay for any property damage that occurred as a result of the assault.
For an accused to successfully claim self-defence as a defence strategy against an assault charge, they must show that it is more likely than not that they assaulted another person because they needed to protect themselves.
Section 34 of the Criminal Code states that a person is not guilty of an offence if:
Assault is not considered to be criminal if consent has been given by the other party. In Canada, you can consent to a fistfight for example. This means that, in the eyes of the law, a consensual fight is not an assault because both parties accepted before the fight occurred that there would be some physical contact.
Section 265(3) of the Code states that for the purposes of assault under section 265, no consent is obtained where the alleged victim submits or does not resist by reason of:
(a) the application of force to the victim or to a person other than the victim;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.
If the accused honestly (but mistakenly) believed the other party had given consent, the accused may use this as a defence. Read more about defence strategies against assault charges and the relevant sections of the Criminal Code here.
If you have been accused of committing assault, please contact our team at Pyzer Criminal Law ((647)-799-0727) for a free case evaluation today.