Common Assault (Offence)

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Common Assault
s. 265, 266 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 6 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-charge, or Judge
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum six months jail and/or a $5,000 fine
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum 5 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to assault are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation". The offence of common assault is set out in s. 265. It is the most basic of offences of violence. Section 265 sets out three ways for the offence to occur. It can be through the intentional non-consensual application of force. It can also be an attempt or threat of non-consensual application of force or lastly the interference with a person while having a weapon.

Pleadings

Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
s. 266 [assault] Hybrid Offence(s) Yes Yes, if Crown proceeds by Indictment

Offences under s. 266 are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Release
When charged under s. 266, the accused can be given an attendance notice without arrest under s. 496 or a summons. If arrested, he can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. He can also be released by a justice under s. 515.

A peace officer who charges a person under s. 266 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans
For all offences there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offences under s. 266 are "designated" offences under s. 752 for the purpose of dangerous offender applications.

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Assault
265. (1) 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, he accosts or impedes another person or begs.

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.
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.

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.
R.S., c. C-34, s. 244; 1974-75-76, c. 93, s. 21; 1980-81-82-83, c. 125, s. 19.


CCC

Assault
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.

R.S., c. C-34, s. 245; 1972, c. 13, s. 21; 1974-75-76, c. 93, s. 22; 1980-81-82-83, c. 125, s. 19.


CCC

Proof of the Offence

Proving assault by force under s. 265(1)(a) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit applied force on the victim
  5. the culprit intended to apply force and it was not by reflex or carelessly
  6. the manner in which assault occurred (whether by fist, open hand, or object)
  7. injuries, if any, that occurred
  8. compare physical build between the accused and victim
  9. that the complainant did not consent (see also s. 265(3) and (4))
  10. that the complainant did not assault, threaten or provoke the accused
  11. whether an alcohol was involved

Proving assault by threat under s. 265(1)(b) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit attempted or threatened to apply force to the victim
  5. the culprit meant the threat to be taken seriously
  6. the culprit had the ability to give effect to his purpose OR the victim reasonably believed he had the ability to give effect to his purpose
  7. no intentional physical contact was made
  8. compare physical build between the accused and victim
  9. that the complainant did not consent (see also s. 265(3) and (4))
  10. that the complainant did not assault, threaten or provoke the accused
  11. whether an alcohol was involved

Proving assault, carrying weapon under s. 265(1)(c) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit was "openly wearing or carrying a weapon or imitation thereof"
  5. the culprit accosted or impeded the victim or begged
  6. compare physical build between the accused and victim
  7. that the complainant did not consent (see also s. 265(3) and (4))
  8. that the complainant did not assault, threaten or provoke the accused
  9. whether an alcohol was involved

Interpretation of the Offence

Force

An assault includes “the least of touching” without consent.[1] The amount of force used is not material.[2]

This broad definition does present a risk of "absurd consequences", but it should be left to the courts to draw the line.[3]

The doctrine of implied consent will exclude some of the trivial assaults from being criminally liable.[4]

  1. R v Dawydiuk, 2010 BCCA 162 (CanLII), (2010), 253 CCC (3d) 493 (BCCA)
    R v Burden, 1981 CanLII 355 (BC CA), (1981) 25 CR (3d) 283 (BCCA)
  2. R v Palombi (2007), 222 CCC (3d) 528, 2007 ONCA 486 (CanLII) (Ont. C.A.)
    R v Burden
    R v McDonald, [2012] N.J. No. 2504 (C.A.) (*no link)
    Collins v Wilcock, [1984] 3 All ER 374 (Q.B.), at p. 378, (“has long been established that any touching of another person, however slight, may amount to a battery.”)
  3. see R v Jobidon, [1991] 2 SCR 714, 1991 CanLII 77 (SCC) per Gonthier J.
  4. e.g. see discussion in R v Bennett, 2006 CanLII 31012 (NL PC), at para 41 to 44

Intention

The Crown must prove the accused had intention to apply force. [1] The use of the word “intentionally” refers to the application of force or “to the manner in which force is applied”[2]

An element of "hostility" has never been essential in the proof of assault. It would otherwise exclude liability due to pranks getting out of hand, non-consensual surgical treatment.[3]

Force due to carelessness or reflex is not sufficient.[4]

  1. R v Ewanchuk 1999 CanLII 711 (SCC), (1999), 131 CCC (3d) 481(S.C.C.)
    R v Bartlett, 1989 CanLII 4889 (NL SCTD), (1989), 79 Nfld. & P.E.I.R. 143 (N.L.S.C.)
  2. R v George 1960 CanLII 45 (SCC)
  3. F. v West Berkshire Health Authority, [1989] 2 All ER 545 (H.L.), at page 564
  4. R v Starratt, 1971 CanLII 541 (ON CA), [1972] 5 CCC (2d) 32 (C.A.)
    R v Wolfe (1974), 20 CCC (2d) 382 (Ont. C.A.)(*no link)

Attempts or Threatens

An uttered threat accompanied by a preparatory action will amount to an assault.[1]

  1. e.g. R v Brogan, 2013 MBQB 6 (CanLII) - offender committed assault when he "stood up, clenched his fists and said “Let’s go”"

Consent

See Consent

Traditional Defences

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 266), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
For general principles and factors of violence and assault-based offences, see Violent and Assaultive Offences

Sentencing Profile

Maximum Penalties

Offence(s) Crown
Election
Maximum Penalty
s. 266 [assault] Summary Election six months jail and/or a $5,000 fine
s. 266 [assault] Indictable Election 5 years custody

Offences under s. 266 are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is six months jail and/or a $5,000 fine.

Minimum Penalties
These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 266 any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.

Principles

Assaults by Peace Officers
Sentences for assaults by peace officers on prisoners should be upon general deterrence and denunciation.[1]

  1. R v Andalib-Goortani, 2015 ONSC 1403 (CanLII) at para 59

Ranges

see also: Common Assault (Sentencing Cases)

Assaults by Peace Officers
In Ontario, sentences in the range of 30 to 60 days for assaults by peace officers on prisoners should be considered lenient.[1]

  1. R v Andalib-Goortani, 2015 ONSC 1403 (CanLII) at para 59

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order Conviction Description
DNA Orders s. 266
Weapons Prohibition Orders s. 266
    • Where there is a conviction under s. 266 for an offence not otherwise referred to in s. 109, where "violence against a person was used, threatened or attempted" or "involves, or the subject-matter of which is a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance", a discretionary prohibition order of any of these items is permitted under s. 110 regardless of Crown election where "it is desirable, in the interests of the safety of the person or of any other person".
      • Duration: The Order is for no more than 10 years starting at release from custody or at sentencing where custody is not ordered. If there is a prior conviction for an offence eligible for a s. 109 Order, the duration must be life. If violence is "used, threatened or attempted against" their past or present intimate partner, a child or parent of the said partner, or a person who resides with the said partner or the offender, the duration can be up to life in duration.
      • If the judge declines to make an Order or not order all the possible terms, "the court shall include in the record a statement of the court's reasons for not doing so." (s. 110(3))
Delayed Parole Order s. 266
  • Periods of imprisonment of 2 years or more for convictions under s. 266 are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".

General Sentencing Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay and the minimum amounts are smaller (15%, $50, or $100).

General Forfeiture Orders

Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(!) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

See Also

Related Offences

Trial-related Matters