It is a criminal offence to spit on someone in Canada. Section 265 and 266 of the Canadian Criminal Code define spitting on someone as an Assault.
If an individual is arrested for an assault for spitting on someone they would be charged under 266 of the Criminal Code.
If found guilty they would be sentenced to up to five years in prison if the Crown proceeded by indictment.
266 Every one who commits an assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on summary conviction.
While spitting on someone may seem minor in comparison to hitting someone, both actions are considered an application of intentional force against someone. Both actions meet the standard for an assault charge according to the Canadian Criminal Code.
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(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, he accosts or impedes another person or begs.
Marginal note:Application(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
Marginal note:Consent(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
(a) the application of force to the complainant or to a person other than the complainant;
(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.
Marginal note: Accused’s belief as to consent(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.
Past cases where individuals have been charged with assault after spitting on someone have occurred in incidents involving domestic violence where an individual spits on their partner; and in incidents involving an individual spitting on a police officer.
If no other application of force, other than spitting occurred during the incident that lead to an assault charge, it could be considered a mitigating factor and could be cause for the defence to argue for leniency for the accused.
There are potential viable defences available to you if you have been charged with an assault. Contact Toronto Criminal Defence Lawyers for further advice if you have been charged with a criminal offence.
Written By:
Jonathan Pyzer
Criminal Defence Lawyer (B.A., L.L.B.)
Jonathan is a highly skilled and sought after criminal defence lawyer who represents clients charged with criminal offences all over the Province of Ontario. He is a member in good-standing with the Law Society of Upper Canada, Criminal Lawyers’ Association and Toronto Lawyers Association.
