A charge reflects an allegation. The Crown must still prove each element of the offence beyond a reasonable doubt. These distinctions affect what the Crown must prove, whether it may proceed summarily or by indictment, and the maximum sentence. The available defences depend on the specific offence, the evidence, and the accused’s account of what happened.
What Counts as an Assault Under the Criminal Code?
Section 265(1) of the Criminal Code recognises three ways in which an assault may occur:
- A person intentionally applies force to someone else, directly or indirectly, without that person’s consent.
- A person attempts or threatens, through an act or gesture, to apply force and has the present ability to do so, or causes the other person reasonably to believe that ability exists.
A person openly wears or carries a weapon or imitation weapon and accosts, impedes, or begs from someone. Three points follow from the wording.
- The application of force must be intentional. An accidental contact does not meet paragraph (a).
- No injury is required. Paragraph (a) is complete on contact, and paragraph (b) does not require contact at all.
- A raised fist can be enough. Paragraph (b) reaches threats and gestures, subject to the present ability condition it sets out.
Section 265(2) extends this definition to every form of assault in the Criminal Code, including the sexual assault offences.
When Consent Does Not Count
Section 265(3) provides that no consent is obtained where the complainant submits or does not resist because force was applied to the complainant or another person, because of threats or fear of force against either person, because of fraud, or because someone exercised authority.
If the complainant’s submission or lack of resistance resulted from one of those circumstances, apparent agreement does not establish consent in law.
The common law also limits consent in some fights. In R. v. Jobidon and R. v. Paice, the Supreme Court of Canada held that consent does not excuse force in a fist fight where serious hurt or non-trivial bodily harm was both intended and caused. The facts still matter because the law does not treat every consensual physical encounter or minor scuffle in the same way.
What Are the Types of Assault Offences in Canada?
The Criminal Code contains several assault offences, along with related offences that can arise from the same incident. Uttering threats and unlawfully causing bodily harm are included here because they are often charged alongside assault, although neither requires proof of an assault in every case.
Assault, Section 266
Section 266 applies where the Crown alleges an assault without the additional features required for offences such as assault with a weapon, assault causing bodily harm, assault by choking, or aggravated assault.
An intentional push or slap without consent may fall under section 266. A threatening gesture may also qualify where it meets section 265(1)(b), even if nobody was touched. Section 266 is sometimes described as common assault or simple assault, although neither phrase is the statutory name of the offence.
Assault With a Weapon, Causing Bodily Harm, or Choking, Section 267
Three separate branches sit in section 267, and the Crown needs to prove only one of them alongside the assault.
- Paragraph (a), a weapon. The accused carried, used, or threatened to use a weapon or an imitation of one. No injury is required for this branch. The Criminal Code defines a weapon broadly as anything used, designed, or intended to cause death or injury or to threaten or intimidate someone. An ordinary object can become a weapon because of how a person uses or intends to use it.
- Paragraph (b), bodily harm. The assault caused bodily harm to the complainant. Section 2 of the Criminal Code defines bodily harm as an injury that interferes with a person’s health or comfort and is more than merely transient or trifling.
- Paragraph (c), choking. The accused choked, suffocated, or strangled the complainant. Parliament added this branch in 2019, and it stands on its own without proof of lasting injury.
The information or indictment and the Crown disclosure should identify which branch is alleged. All three branches carry the same statutory maximum, although each requires different evidence.
Aggravated Assault, Section 268
Section 268 applies where an assault wounds, maims, disfigures, or endangers the life of the complainant. These are alternative ways of committing the same offence.
Permanent injury is not required where the Crown proves that the assault endangered the complainant’s life. The appearance of an injury does not decide the charge on its own. The medical evidence and the consequences or risks created by the assault matter.
Section 268 is also the only offence in this group that gives the Crown no choice about how to proceed. Aggravated assault is straight indictable.
Section 268(3) provides that “wounds” and “maims” include specified forms of genital excision, infibulation, or mutilation. The subsection contains limited exceptions for qualifying medical procedures and certain procedures involving adults that cause no bodily harm. Section 268(4) makes consent invalid outside those exceptions.
Unlawfully Causing Bodily Harm, Section 269
Unlike every offence above it, section 269 does not require an assault at all. The section reaches bodily harm caused by an underlying unlawful offence.
As confirmed in R. v. DeSousa, the Crown must prove an underlying federal or provincial offence, the required fault for that offence, a causal connection between the unlawful conduct and the bodily harm, and objective foreseeability of the risk of bodily harm. The Crown does not have to prove that the accused intended the resulting injury.
That distinction may matter where the Crown cannot prove the intentional application of force required by section 265(1)(a) but alleges that another unlawful act caused bodily harm. Section 269 may be charged alongside an assault count or as a separate allegation.
Uttering Threats, Section 264.1
Section 264.1 stands apart from section 265 in one important way: the present ability requirement described above does not apply. A person can commit this offence with a threat they had no means of carrying out.
The Crown must prove that a reasonable person who knew the circumstances would understand the words or conduct as a threat and that the accused intended the threat to intimidate or be taken seriously. Under R. v. McRae, the Crown does not have to prove that the accused intended to carry out the threat, that its subject received it, or that anyone was frightened by it.
The offence covers threats to cause death or bodily harm to any person, and separately covers threats to damage property or to harm an animal. Those two categories carry different maximums.
Assaulting a Peace Officer, Sections 270 to 270.1
Section 270 protects a broader group than the heading suggests. Peace officer is a defined term reaching well beyond police, and the section also covers public officers, anyone acting in aid of such an officer, and people carrying out a legal process against lands or goods.
The section covers assaulting an officer who is carrying out their duty, assaulting someone with the intent to resist or prevent a lawful arrest or detention, and assault connected to the lawful execution of a process against land or goods.
Three further offences build on it.
- Section 270.01 applies where the accused carried, used, or threatened a weapon, or caused bodily harm, in committing a section 270 assault.
- Section 270.02 is the aggravated version, using the same wounds, maims, disfigures or endangers life test as section 268.
- Section 270.1 covers taking or attempting to take a weapon from a peace officer without consent while that officer is carrying out their duty.
Section 270.03 requires a sentence for an offence under section 270, 270.01, or 270.02 committed against a “law enforcement officer,” as specifically defined in the Criminal Code, to run consecutively to another sentence arising from the same events. The rule does not apply to section 270.1 or to every offence involving any person who falls within the broader definition of a peace officer or public officer.
Sexual Assault Offences, Sections 271 to 273
Section 265(2) says expressly that the assault definition applies to sexual assault, so these offences begin from the same starting point as the rest of this group. The Crown must also prove that the assault was sexual in nature when viewed in all the circumstances.
- Section 271 covers sexual assault.
- Section 272 applies where the accused carried or used a weapon, threatened a third party, caused bodily harm, choked the complainant, or committed the offence with another person.
- Section 273 covers aggravated sexual assault, where the complainant is wounded, maimed, disfigured, or their life endangered.
Consent works differently for these three offences. Section 273.1 defines consent as the complainant’s voluntary agreement to the specific sexual activity and requires consent to be present when the activity takes place. The provision also identifies circumstances in which the law recognises no consent.
Section 273.2 limits a defence based on a belief in consent. Among other requirements, there must be evidence that the complainant affirmatively expressed agreement through words or conduct, and the accused must have taken reasonable steps to confirm consent in the circumstances known at the time.
These offences have their own penalty structure. Section 271 carries a maximum of 10 years on indictment in the general case and 14 years if the complainant is under 16. Section 272 carries a maximum of 14 years in the general case and life imprisonment if the complainant is under 16. Section 273 carries a maximum of life imprisonment. Statutory minimum sentences apply in specified cases involving a complainant under 16 or a firearm.
Since July 18, 2026, section 718.4 requires a court to impose a shorter term where the applicable minimum would amount to cruel and unusual punishment for that particular offender.
Assault Charges Compared: What Separates One From Another?
Most assault offences start with the definition in section 265. Unlawfully causing bodily harm and uttering threats have their own elements and do not require proof of an assault.
| Offence | Section | What the Crown must prove beyond the assault | How the Crown may proceed |
| Assault | s. 266 | Nothing further | Indictment or summary conviction |
| Assault with a weapon | s. 267(a) | A weapon or imitation was carried, used, or threatened | Indictment or summary conviction |
| Assault causing bodily harm | s. 267(b) | The complainant suffered bodily harm | Indictment or summary conviction |
| Assault by choking | s. 267(c) | The complainant was choked, suffocated or strangled | Indictment or summary conviction |
| Aggravated assault | s. 268 | The complainant was wounded, maimed, disfigured, or their life endangered | Indictment only |
| Unlawfully causing bodily harm | s. 269 | An underlying unlawful offence caused bodily harm, with the required fault and objective foreseeability | Indictment or summary conviction |
| Uttering threats | s. 264.1 | A qualifying threat and an intention that it intimidate or be taken seriously | Indictment or summary conviction |
| Assaulting a peace officer | s. 270 | The circumstances specified in section 270, including an officer carrying out a duty, resistance to a lawful arrest or detention, or a lawful process against land or goods | Indictment or summary conviction |
Two comparisons come up more often than the rest:
Assault with a weapon against assault causing bodily harm. Both sit in section 267, and both carry the same maximum. The difference lies in what the Crown proves. The weapon branch needs no injury at all. The bodily harm branch needs no weapon.
Assault causing bodily harm against aggravated assault. Both involve injury. Aggravated assault requires wounding, maiming, disfigurement, or endangerment of life, which is a higher threshold than bodily harm, and it removes the Crown’s choice about how to proceed.
What Are the Penalties for Assault in Canada?
You have been charged. You have not been convicted. The Crown carries the burden of proving every element beyond a reasonable doubt, and a court determines any sentence on the facts before it. The figures in this section are the maximums Parliament set. Each figure is a ceiling rather than an expectation, and no maximum tells a person what will happen in their own case.
How the Maximums Are Structured
Most offences in this group are hybrid, meaning the Crown can choose how to proceed. The Crown’s election affects the available procedure and maximum sentence. It does not determine whether the accused is guilty or predict the sentence.
Where an offence is punishable on summary conviction, and Parliament has not set a different penalty, section 787 provides a general maximum of two years less a day in jail, a fine of up to $5,000, or both. Aggravated assault under section 268 and aggravated assault of a peace officer under section 270.02 are indictable-only offences.
The maximums for the non-sexual offences covered here fall into four groups.
Two years applies to uttering threats to damage property or to harm an animal under sections 264.1(1)(b) and (c).
Five years applies to the offences where the Crown alleges no additional aggravating element. Assault under section 266 carries five years. So does assaulting a peace officer under section 270, and so does disarming one under section 270.1. Uttering a threat to cause death or bodily harm under section 264.1(1)(a) also carries five years, while a threat to property or an animal carries two.
Ten years applies where something raised the offence beyond a bare assault. Section 267 reaches that tier whether the Crown alleges a weapon, bodily harm or choking, because the branch chosen makes no difference to the ceiling. Unlawfully causing bodily harm under section 269 sits at the same level, as does section 270.01 where a weapon or bodily harm is alleged against a peace officer.
Fourteen years applies to the two aggravated offences. Aggravated assault under section 268 carries fourteen years, as does aggravated assault of a peace officer under section 270.02.
Maximum Sentences at a Glance
| Offence | Section | Maximum on indictment |
| Uttering threats to damage property or harm an animal | s. 264.1(1)(b) or (c) | 2 years |
| Assault | s. 266 | 5 years |
| Assaulting a peace officer | s. 270 | 5 years |
| Disarming a peace officer | s. 270.1 | 5 years |
| Uttering threats to cause death or bodily harm | s. 264.1(1)(a) | 5 years |
| Assault with a weapon, causing bodily harm, or choking | s. 267 | 10 years |
| Unlawfully causing bodily harm | s. 269 | 10 years |
| Assaulting a peace officer with a weapon or causing bodily harm | s. 270.01 | 10 years |
| Aggravated assault | s. 268 | 14 years |
| Aggravated assault of a peace officer | s. 270.02 | 14 years |
The non-sexual assault offences in this table do not carry a mandatory minimum sentence simply because the charge was laid. Separate firearm offences and some sexual assault provisions may carry statutory minimums. The applicable charge, the complainant’s age, the use of a firearm, and the date of the alleged offence all require separate review.
What Defences Apply to an Assault Charge?
The available defence depends on the offence and the evidence. In many cases, the central issue is whether the Crown can prove each required element beyond a reasonable doubt.
Self-Defence
Section 34 of the Criminal Code provides a defence where three requirements are met:
- The accused believed on reasonable grounds that force or a threat of force was being used against them or another person.
- The accused acted for the purpose of defending or protecting themselves or the other person.
- The response was reasonable in the circumstances.
The court considers the full context when deciding whether the response was reasonable. Relevant factors include the nature and immediacy of the threat, the accused’s role in the incident, whether a weapon was involved, the parties’ physical capabilities, their relationship and history, other available responses, and the proportionality of the accused’s conduct.
Defence of Property
Section 35 may apply where the accused reasonably believed that they or someone they were assisting had peaceable possession of property, reasonably believed another person was entering, taking, damaging, or destroying it without legal entitlement, acted for a protective purpose listed in the section, and responded reasonably in the circumstances. Ownership alone does not give someone an unlimited right to use force.
Consent
Consent removes an element of the offence under section 265(1)(a), because that paragraph requires the force to be applied without consent.
Section 265(3) limits the defence. Where the Crown alleges that the complainant submitted because of force, threats, fraud, or authority, the argument moves to whether the pressure described actually existed.
Consent also has common-law limits in fights. Consent may be unavailable where the participants intended and caused serious hurt or non-trivial bodily harm. For sexual assault charges, sections 273.1 and 273.2 impose separate rules governing consent, and any claimed belief in consent.
The Crown Cannot Prove the Injury or Causation
Charges under sections 267(b), 268, and 269 depend on proof of a specified consequence. Medical records, photographs, expert evidence, the timing of symptoms, and evidence of other possible causes may affect whether the Crown can prove bodily harm, wounding, disfigurement, endangerment of life, or the required causal connection.
No Intentional Application of Force
Paragraph (a) requires intention. A contact that occurred by accident, in a crowd, during a fall, or in the course of ordinary activity does not meet the section, however unwelcome the complainant found it.
This issue answers only the intentional-force form of assault under section 265(1)(a). The Crown may still rely on an alleged attempt or threat under paragraph (b), another mode of assault, or a separate offence such as unlawfully causing bodily harm where its elements are supported by the evidence.
Identification and Reliability
Some assault cases turn on eyewitness evidence or competing accounts. Relevant reliability issues may include lighting and visibility, the witness’s position, how long the incident lasted, whether the account changed, whether the witness discussed the event with others, and whether objective evidence supports or contradicts the account. A criminal court assesses the evidence as a whole rather than deciding the case by counting witnesses.
Lawfulness in Peace-Officer Cases
A charge under section 270 may require proof that the officer was carrying out their duty, that the arrest or detention being resisted was lawful, or that the relevant legal process was being executed lawfully. If the Crown cannot prove the required legal status or lawfulness, section 270 may fail even though the evidence could still support another assault charge.
Charter Applications
The way police detained or arrested a person may raise section 9 Charter issues. A search or seizure may engage section 8. Section 10 applies on arrest or detention and includes the right to be informed promptly of the reasons and the right to retain and instruct counsel without delay. The manner in which police obtained a statement may also affect its admissibility.
A Charter breach does not automatically exclude evidence. The court decides under section 24(2) whether admitting evidence obtained through the breach would bring the administration of justice into disrepute.
Contact an Experienced Assault Defence Lawyer Today
No general rule decides an assault charge. Which section the Crown charged, what the injury evidence actually shows, and how the accounts hold up against each other will each bear on the result, and those details sit in the disclosure rather than on a page like this one. No lawyer can tell a person where their own case stands before reading it.
Pyzer Criminal Lawyers defends charges under sections 264.1, 266, 267, 268, 269 and 270 of the Criminal Code throughout Toronto and the Greater Toronto Area, including Mississauga, Brampton, Scarborough, Vaughan and Oshawa.
Frequently Asked Questions
Is there a difference between assault and battery in Canada?
Canadian criminal law contains no offence called battery. The distinction between assault as a threat and battery as contact belongs to older English law and to some American jurisdictions. Section 265 includes both threatened force and intentional, non-consensual force within the definition of assault. A threat or physical contact still has to meet the section’s elements.
Does Canada have degrees or levels of Assault?
No. Canadian criminal law contains no first-degree, second-degree, or third-degree assault. The phrase comes from the United States, where many states grade assault by degree. People sometimes use “level one,” “level two,” and “level three” informally to distinguish assault under sections 266, 267, and 268. Those are not the offence names used in the Criminal Code.
Can police lay an assault charge if the complainant does not want to proceed?
Yes. Police may lay a charge where they have the required grounds, and the Crown decides whether the prosecution should continue. A complainant can tell police and the Crown that they do not wish to continue, and the Crown will consider that, but the decision does not belong to the complainant.
Is domestic assault a separate offence?
No. The Criminal Code contains no offence called domestic assault. Police lay these charges under section 266, 267, or 268 like any other assault. A release order or undertaking may restrict contact, communication, or residence, depending on the circumstances and the terms imposed. These conditions are legally binding unless a court or other authorised decision-maker changes them.
Can an assault charge be resolved without a criminal record?
Some assault charges can be resolved without a conviction, but the outcome depends on the offence, the evidence, the accused’s circumstances, and the Crown’s position. Options such as a withdrawal, stay, peace bond, absolute discharge, or conditional discharge each carry different legal and record consequences.
This article provides general legal information only and should not be construed as legal advice. Laws and their interpretation may change, and the application of law to specific circumstances requires professional legal assessment. If you have questions about a legal matter, please contact us for a free consultation.
This article provides general legal information only and should not be construed as legal advice. Laws and their interpretation may change, and the application of law to specific circumstances requires professional legal assessment. If you have questions about a legal matter, please contact us for a free consultation.
