Common Assault (Offence): Difference between revisions

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[[fr:Voies de fait (infraction)]]
{{Currency2|January|2016}}
{{LevelZero}}{{HeaderOffences}}
{{LevelZero}}{{HeaderOffences}}


{{OffenceBox |OffenceTitle=Common Assault|OffencePage=Common Assault|Section=265, 266|Act={{OBCCC}} |CrownElection={{OBHybridElection}} |Jurisdiction={{OBJurisdictionAll}}|Bail={{OBBailAll}}|SummaryDisp={{OBDispAll}} |SummaryMin= {{OBMinNone}}|SummaryMax={{OBSConviction}} |IndictableDisp= {{OBDispSame}} |IndictableMin= {{OBMinNone}} |IndictableMax= {{OBTime|5 years}} }}
{{OffenceBox
|OffenceTitle=Common Assault
|OffencePage=Common Assault
|Section=265, 266
|Act={{OBCCC}}
|CrownElection={{OBHybridElection}}  
|Jurisdiction={{OBJurisdictionAll-Under14}}
|Bail={{OBBailAll}}
|SummaryDisp={{OBDispAll}}  
|SummaryMin= {{OBMinNone}}
|SummaryMax={{OBSConviction}}  
|IndictableDisp= {{OBDispSame}}  
|IndictableMin= {{OBMinNone}}  
|IndictableMax= {{OBTime|5 years}} }}


==Overview==
==Overview==
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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.
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'''<br>
; Pleadings
{{PleadingsHeader}}
{{PleadingsHeader-N}}
{{PleadingsHybridList|s. 266 [assault] | Yes | {{YesIfCrown}} }}  
{{PleadingsHybridList-N|s. 266 {{DescrSec|266}} | {{Yes}} | {{Yes-IfCrown}} | {{No-Under14}} }}  
{{PleadingsEnd}}  
{{PleadingsEnd}}  


{{PleadingsHybridElection|s. 266}}
{{PleadingsHybridElection-Under14|s. 266 {{DescrSec|266}} }}


'''Release'''<br>
; Release
{{ReleaseHeader}}
{{ReleaseHeader}}
|s. 266 || {{ReleaseProfileAll}}  
|s. 266 {{DescrSec|266}} || {{ReleaseProfile-Hybrid}}  
|-
|-
{{ReleaseEnd}}
{{ReleaseEnd}}


{{ReleaseAllOptions|s. 266}}
{{ReleaseOptions-Hybrid|s. 266 {{DescrSec|266}}}}


:''Fingerprints and Photos''
{{IDCriminalAct|s. 266}}
{{IDCriminalAct|s. 266}}


'''Publication Bans'''<br>
; Publication Bans
<!-- {{PubBanHeader}} <!-- Sections / Sexual Offence Pub Ban / Youth Victim or witness / Young Accused -->
<!--|s. 266 {{DescrSec|266}} || {{OKMark}}  || {{OKMark}} || {{OKMark}}  ||  {{OKMark}} (if jury eligible) ||{{OKMark}}  || {{XMark}}
|-
{{PubBanEnd}}-->
{{GeneralPubBan}}
{{GeneralPubBan}}


'''Offence Designations'''<br>
; Offence Designations
{{DODesignation|s. 266}}
{{DesignationHeader}} <!-- wire  / DO / SPIO / AG Consent -->
|-
|s. 266 {{DescrSec|266}}|| {{XMark}} <!--wire--> || {{OKMark}} <!--DO-->||{{XMark-Under10}} <!--SPIO--> || {{XMark}} <!--consent--> || {{XMark-Under10}} <!--IPRA-->
{{DesignationEnd}}
 
{{DODesignation|s. 266 {{DescrSec|266}}}}
 
{{IRPADesignation|s. 266 {{DescrSec|266}}}}


{{SeeBelowForAncillary}}
{{SeeBelowForAncillary}}
{{reflist|2}}


==Offence Wording==
==Offence Wording==


{{quotation|
{{quotation2|
'''Assault'''<br>
; Assault
265. (1) A person commits an assault when
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;
:(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
:(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.<br>
:(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.<br>


'''Application'''<br>
; 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.
(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.
<br>
<br>
'''Consent'''<br>
; Consent
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
(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;
:(a) the application of force to the complainant or to a person other than the complainant;
Line 51: Line 80:
:(d) the exercise of authority.<br>
:(d) the exercise of authority.<br>


'''Accused’s belief as to consent'''<br>
; 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.
(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.
<br>
<br>
R.S., c. C-34, s. 244; 1974-75-76, c. 93, s. 21; 1980-81-82-83, c. 125, s. 19.
R.S., c. C-34, s. 244;  
|[http://canlii.ca/t/7vf2#sec265 CCC]
1974-75-76, c. 93, s. 21;  
1980-81-82-83, c. 125, s. 19.
|{{CCCSec2|265}}
|{{NoteUp|265|1|2|3|4}}
}}
}}


{{quotation|
{{quotation2|
'''Assault'''<br>
; Assault
266. Every one who commits an assault is guilty of
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
:(a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or
:(b) an offence punishable on summary conviction.
:(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.
R.S., c. C-34, s. 245;  
|[http://canlii.ca/t/7vf2#sec266 CCC]
{{LegHistory70s|1972, c. 13}}, s. 21;  
1974-75-76, c. 93, s. 22;  
1980-81-82-83, c. 125, s. 19.
|{{CCCSec2|266}}
|{{NoteUp|266}}
}}
}}


{{DraftCharge}}
===Draft Form of Charges===
{{seealso|Draft Form of Charges}}
{{DraftHeader}}
|-
|266
| assault
|"{{ellipsis1}}, did assault [alleged victim] and did thereby commit an offence {{contrary|266}}.
{{DraftEnd}}


==Proof of the Offence==
==Proof of the Offence==
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{{Proving|assault by force|265(1)(a)}}
{{Proving|assault by force|265(1)(a)}}
{{InitialElements}}
{{InitialElements}}
# the culprit applied force on the victim
# {{box}} the culprit applied force on the victim
# the culprit intended to apply force and it was not by reflex or carelessly
# {{box}} the culprit intended to apply force and it was not by reflex or carelessly
# the manner in which assault occurred (whether by fist, open hand, or object)
# {{box}} the manner in which assault occurred (whether by fist, open hand, or object)
# injuries, if any, that occurred
# {{box}} injuries, if any, that occurred
# compare physical build between the accused and victim
# {{box}} compare physical build between the accused and victim
# that the complainant did not consent (see also s. 265(3) and (4))
# {{box}} that the complainant did not consent (see also s. 265(3) and (4))
# that the complainant did not assault, threaten or provoke the accused
# {{box}} that the complainant did not assault, threaten or provoke the accused
# whether an alcohol was involved
# {{box}} whether an alcohol was involved


{{ElementRight}}
{{ElementRight}}
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{{Proving|assault by threat|265(1)(b)}}
{{Proving|assault by threat|265(1)(b)}}
{{InitialElements}}
{{InitialElements}}
# the culprit attempted or threatened to apply force to the victim
# {{box}} the culprit attempted or threatened to apply force to the victim
# the culprit meant the threat to be taken seriously
# {{box}} the culprit meant the threat to be taken seriously
# 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
# {{box}} 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
# no intentional physical contact was made
# {{box}} no intentional physical contact was made
# compare physical build between the accused and victim
# {{box}} compare physical build between the accused and victim
# that the complainant did not consent (see also s. 265(3) and (4))
# {{box}} that the complainant did not consent (see also s. 265(3) and (4))
# that the complainant did not assault, threaten or provoke the accused
# {{box}} that the complainant did not assault, threaten or provoke the accused
# whether an alcohol was involved
# {{box}} whether an alcohol was involved


{{ElementLeft}}
{{ElementLeft}}
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{{Proving|assault, carrying weapon|265(1)(c)}}
{{Proving|assault, carrying weapon|265(1)(c)}}
{{InitialElements}}
{{InitialElements}}
# the culprit was "openly wearing or carrying a weapon or imitation thereof"
# {{box}} the culprit was "openly wearing or carrying a weapon or imitation thereof"
# the culprit accosted or impeded the victim or begged
# {{box}} the culprit accosted or impeded the victim or begged
# compare physical build between the accused and victim
# {{box}} compare physical build between the accused and victim
# that the complainant did not consent (see also s. 265(3) and (4))
# {{box}} that the complainant did not consent (see also s. 265(3) and (4))
# that the complainant did not assault, threaten or provoke the accused
# {{box}} that the complainant did not assault, threaten or provoke the accused
# whether an alcohol was involved
# {{box}} whether an alcohol was involved


{{ElementRight}}
{{ElementRight}}
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==Interpretation of the Offence==
==Interpretation of the Offence==
==="Assault"===
The term "assault" found in s. 266 is meant to include the common law terms of "assault" and "battery."<ref>
{{CanLIIRP|Cadden|22knx|1989 CanLII 2847 (BC CA)|48 CCC (3d) 122}}{{perBCCA-H|Hinkson JA}}{{atL|22knx|10}}
</ref>
Words alone cannot be an assault. It requires an "act or gesture", but there is no need for physical contact.<REf>
{{ibid1|Cadden}}{{atsL|22knx|16| to 18}}
{{CanLIIR|Johnson|1pxzq|2006 CanLII 37519 (ON SC)}}{{atL|1pxzq|152}}
{{CanLIIRP|Edgar|h32dm|2016 ONCA 120 (CanLII)}}{{atL|h32dm|10}}
</ref>
{{reflist|2}}


===Force===
===Force===
An assault includes “the least of touching” without consent.<ref>
An assault includes “the least of touching” without consent.<ref>
''R v Dawydiuk'', [http://canlii.ca/t/290rj 2010 BCCA 162] (CanLII), (2010), 253 CCC (3d) 493 (BCCA){{perBCCA|Rowles JA}}<br>
{{CanLIIRP|Dawydiuk|290rj|2010 BCCA 162 (CanLII)|253 CCC (3d) 493}}{{perBCCA|Rowles JA}}<br>
''R v Burden'', [http://canlii.ca/t/23lzb 1981 CanLII 355] (BC CA), (1981) 25 CR (3d) 283 (BCCA){{perBCCA|McFarlane JA}}<br>
{{CanLIIRP|Burden|23lzb|1981 CanLII 355 (BC CA)|(1981) 25 CR (3d) 283}}{{perBCCA|McFarlane JA}}<br>
</ref>  
</ref>  
The amount of force used is not material.<ref>
The amount of force used is not material.<ref>
R v Palombi (2007), 222 CCC (3d) 528, [http://canlii.ca/t/1rxpz 2007 ONCA 486] (CanLII) (Ont. C.A.){{perONCA|Rosenberg JA}}<br>
{{CanLIIRP|Palombi|1rxpz|2007 ONCA 486 (CanLII)| 222 CCC (3d) 528}}{{perONCA|Rosenberg JA}}<br>
R v Burden <br>
{{supra1|Burden}}<br>
''R v McDonald'', [2012] N.J. No. 2504 (C.A.) {{NOCANLII}}<br>
{{CanLIIR-N|McDonald|, [2012] NJ No 2504 (CA) }}<br>
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.”)
{{UKCase|Collins v Wilcock|, [1984] 3 All ER 374 (Q.B.)}}{{atp|378}}, (“has long been established that any touching of another person, however slight, may amount to a battery.”)
</ref>
</ref>


This broad definition does present a risk of "absurd consequences", but it should be left to the courts to draw the line.<ref>
This broad definition does present a risk of "absurd consequences", but it should be left to the courts to draw the line.<ref>
see ''R v Jobidon'', [1991] 2 SCR 714, [http://canlii.ca/t/1fskj 1991 CanLII 77] (SCC){{perSCC|Gonthier J}}
see {{CanLIIRP|Jobidon|1fskj|1991 CanLII 77 (SCC)|[1991] 2 SCR 714}}{{perSCC|Gonthier J}}
</ref>
</ref>


The doctrine of [[Consent#Implied Consent|implied consent]] will exclude some of the trivial assaults from being criminally liable.<ref>
The doctrine of [[Consent#Implied Consent|implied consent]] will exclude some of the trivial assaults from being criminally liable.<ref>
e.g. see discussion in ''R v Bennett'', [http://canlii.ca/t/1p8m1 2006 CanLII 31012] (NL PC){{perNLPC|Gorman J}}, at paras 41 to 44<br>
e.g. see discussion in {{CanLIIRx|Bennett|1p8m1|2006 CanLII 31012 (NL PC)}}{{perNLPC|Gorman J}}{{atsL|1p8m1|41| to 44}}<br>
</ref>
</ref>


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===Intention===
===Intention===
The Crown must prove the accused had intention to apply force. <ref>
The Crown must prove the accused had intention to apply force. <ref>
R v Ewanchuk [http://canlii.ca/t/1fqpm 1999 CanLII 711] (SCC), (1999), 131 CCC (3d) 481(S.C.C.){{perSCC|Major J}}<br>
{{CanLIIRP|Ewanchuk|1fqpm|1999 CanLII 711 (SCC)|[1999] 1 SCR 330}}{{perSCC-H|Major J}}<br>
''R v Bartlett'', [http://canlii.ca/t/g8x9s 1989 CanLII 4889] (NL SCTD), (1989), 79 Nfld. & P.E.I.R. 143 (N.L.S.C.){{perNLSC| Cameron J}}
{{CanLIIRP|Bartlett|g8x9s|1989 CanLII 4889 (NLSCTD)| Nfld. & PEIR 143 (NLSC)}}{{perNLSC|Cameron J}}
</ref> The use of the word “intentionally” refers to the application of force or “to the manner in which force is applied”<ref>R v George [http://canlii.ca/t/21vcd 1960 CanLII 45] (SCC){{perSCC|Fauteux J}}</ref>
</ref>
The use of the word “intentionally” refers to the application of force or “to the manner in which force is applied”<ref>
{{CanLIIRP|George|21vcd|1960 CanLII 45 (SCC)|[1960] SCR 871}}{{perSCC-H|Fauteux J}}</ref>


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.<ref>
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.<ref>
F. v West Berkshire Health Authority, [1989] 2 All ER 545 (H.L.), at page 564<br>
{{UKCase|F v West Berkshire Health Authority|, [1989] 2 All ER 545 (H.L.)}}, at page 564<br>
</ref>
</ref>


Force due to carelessness or reflex is not sufficient.<ref>  
Force due to carelessness or reflex is not sufficient.<ref>  
''R v Starratt'', [http://canlii.ca/t/g19d0 1971 CanLII 541] (ON CA), [1972] 5 CCC (2d) 32 (C.A.){{perONCA|Gale CJ}}<br>  
{{CanLIIRP|Starratt|g19d0|1971 CanLII 541 (ON CA)|5 CCC (2d) 32 (CA)}}{{perONCA|Gale CJ}}<br>  
R v Wolfe (1974), 20 CCC (2d) 382 (Ont. C.A.), [http://canlii.ca/t/htwp8 1974 CanLII 1643] (ON CA){{perONCA| Gale CJ}}<br>
{{CanLIIRP|Wolfe|htwp8|1974 CanLII 1643|20 CCC (2d) 382}}{{perONCA| Gale CJ}}<br>
</ref>
</ref>


Line 155: Line 212:


===Attempts or Threatens===
===Attempts or Threatens===
An uttered threat accompanied by a preparatory action will amount to an assault.<ref>
An uttered threat accompanied by a preparatory action will amount to an assault.<ref>
e.g. ''R v Brogan'', [http://canlii.ca/t/fwdxh 2013 MBQB 6] (CanLII){{perMBQB|Greenberg J}} - offender committed assault when he "stood up, clenched his fists and said “Let’s go”"
e.g. {{CanLIIRx|Brogan|fwdxh|2013 MBQB 6 (CanLII)}}{{perMBQB|Greenberg J}} - offender committed assault when he "stood up, clenched his fists and said “Let’s go”"
</ref>
</ref>


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{{seealso|Role of the Victim and Third Parties|Testimonial Aids for Young, Disabled or Vulnerable Witnesses}}
{{seealso|Role of the Victim and Third Parties|Testimonial Aids for Young, Disabled or Vulnerable Witnesses}}


'''Testimonial Aids'''<br>
{{ThirdPartyHeader}} <!-- Sections / Testimonial Screen (486) / Support Person / Video-link / Cross-exam. Prohib. / Sexual Offence Pub Ban / Victim's Right to Privacy in Records / Witness Identity (486.31) -->
|s. 266 {{DescrSec|266}} || || ||  || || ||  ||
|-
{{ThirdPartyEnd}}
 
; Testimonial Aids
{{3rdPTestimonyAids}}
{{3rdPTestimonyAids}}


'''On Finding of Guilt'''<br>
; On Finding of Guilt
{{VictimHeader}} <!-- Sections / Notice of Agree / Notice of Restitution / Notice of VIS -->  
|s. 266 {{DescrSec|266}} || {{No}} ||{{Yes-Indictment}} || ||
|-
{{VictimEnd}}


{{606Notice5Y|s. 266}}
{{606Notice5Y|s. 266}}
Line 187: Line 252:


{{VISNotice}}
{{VISNotice}}
{{reflist|2}}


==Sentencing Principles and Ranges==
==Sentencing Principles and Ranges==
Line 193: Line 260:


===Sentencing Profile===
===Sentencing Profile===
'''Maximum Penalties'''<br>
; Maximum Penalties
{{SProfileMaxHeader‎}}
{{SProfileMaxHeader‎}}
{{SProfileMax|s. 266 [assault] |Summary Election|{{summaryconviction}} }}
{{SProfileMax|s. 266 {{DescrSec|266}} | {{Summary}} |{{summaryconviction}} }}
{{SProfileMax|s. 266 [assault] |Indictable Election|5 years custody}}
{{SProfileMax|s. 266 {{DescrSec|266}} | {{Indictable}} |{{Max5Years}}}}
{{SProfileEnd}}
{{SProfileEnd}}


{{MaxPenaltyHybrid|s. 266|'''5 years incarceration'''|'''{{summaryconviction}}'''}}
{{MaxPenaltyHybrid|s. 266 {{DescrSec|266}}|'''{{Max5Years}}'''|'''{{summaryconviction}}'''}}


'''Minimum Penalties'''<br>
; Minimum Penalties
{{NoMinimumPenalties}}
{{NoMinimumPenalties}}


'''Available Dispositions'''<br>
; Available Dispositions
{{SProfileAvailHeader}}
{{SProfileAvailHeader}}
|s. 266 || any || {{SProfileAll}}
|s. 266 {{DescrSec|266}} || any || {{SProfileAll}}
|-
|-
{{SProfileEnd}}
{{SProfileEnd}}
{{AllDispositionsAvailable}}
{{AllDispositionsAvailable}}


'''Consecutive Sentences'''<br>
; Consecutive Sentences
{{NoConsecutive}}
{{NoConsecutive}}


===Principles===
===Principles===


'''Assaults by Peace Officers'''<br>
; Assault Upon Children
Most of the abuse of children can be divided into three categories:<ref>
{{CanLIIR|Berg|h3s54|2017 SKPC 11 (CanLII)}}{{atL|h3s54|12}}<Br>
{{CanLIIRP|Marks|2dx9t|(1994) 1994 CanLII 9742 (NL CA)|NJ No 241}}{{atsL|2dx9t|27| and 28}} - describes two of three categories<br>
{{CanLIIR|Evans|6j9k|1996 CanLII 19983 (AB PC)|182 AR 21}}<br>
{{CanLIIR|Laberge|2dc8j|1995 ABCA 196 (CanLII)|165 A.R. 375; 89 W.A.C. 375; 27 W.C.B.(2d) 176}}{{perABCA|Fraser ACJ}}<br>
{{CanLIIR|Hilterman|gqckt|1993 CanLII 16387 (AB CA)|141 A.R. 223; 46 W.A.C. 223}}{{perABCA|Belzil JA and Prowse J}}<bR>
</ref>
# The application of force with, if not the intention, the expectation of causing injury or, an indifference as to whether injuries will result;
# the application of force where a parent or other custodian of a child is immature and is unskilled in matters of child care, and, acting out of emotional upset, frustration or impatience, does not fully appreciate the serious injuries which might result; and
# cases involving diminished responsibility through mental disorder where the of normal mental condition of the accused requires that treatment of the offender be given a priority over the principles of general and individual deterrence.
 
The first of which is the more aggravating form of the offence. The second is the lesser form of offence and may focus more on rehabilitation.<Ref>
{{ibid1|Marks}}{{AtL|2dx9t|28}}
</reF>
The second and third categories are not so minor as to mean that jail sentences should not be imposed.<Ref>
{{supra1|Berg}}{{atL|h3s54|12}}<Br>
{{CanLIIR|Nickel|frgmj|2012 ABCA 158 (CanLII)}}{{perABCA|Watson JA}}
</ref>
 
; Assaults by Peace Officers
Sentences for assaults by peace officers on prisoners should be upon general deterrence and denunciation.<ref>
Sentences for assaults by peace officers on prisoners should be upon general deterrence and denunciation.<ref>
R v Andalib-Goortani, [http://canlii.ca/t/ggk1v 2015 ONSC 1403] (CanLII){{perONSC|Trotter J}} at para 59<br>
{{CanLIIRx|Andalib-Goortani|ggk1v|2015 ONSC 1403 (CanLII)}}{{perONSC|Trotter J}}{{atL|ggk1v|59}}<br>
</ref>
 
Given police's important role in society, they are expected to adhere to "exemplary behaviour" in both their professional and private lives.<Ref>
{{CanLIIR|DED|1wkz8|2007 ABQB 508 (CanLII)}}{{perABQB| J}}{{atL|1wkz8|81}}<Br>
R v Wallator, [1994] A.J. No. 194 (Prov. Ct.) at para 18 ("Police officers have an important peace role to play in society. They are under constant public scrutiny with a public demand for exemplary behaviour. There is a public attitude that police officers are expected to live, and to reflect higher standards of attitude and conduct, not only in their professional lives but also in their private lives, which is much more than is required of private citizens. Police forces reinforce these views through internal discipline procedures and regular personal evaluation reports (which are reviewed by supervisors).")
</ref>
</ref>


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{{seealsoRanges|Common Assault}}
{{seealsoRanges|Common Assault}}


'''Assaults by Peace Officers'''<br>
; Assaults Upon Children
It has been noted that the precedents in Newfoundland have shown typical ranges from conditional discharges to 6 months jail for common assault.<REf>
{{CanLIIRP|Norman|fn003|2011 CanLII 54410 (NL PC)|[2011] N.J. No. 214}}{{perNLPC|Gorman J}}
</ref>
 
; 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.<ref>
In Ontario, sentences in the range of 30 to 60 days for assaults by peace officers on prisoners should be considered lenient.<ref>
R v Andalib-Goortani, [http://canlii.ca/t/ggk1v 2015 ONSC 1403] (CanLII){{perONSC|Trotter J}} at para 59<br>
{{CanLIIRx|Andalib-Goortani|ggk1v|2015 ONSC 1403 (CanLII)}}{{perONSC|Trotter J}}{{atL|ggk1v|59}}<br>
</ref>
</ref>


Line 236: Line 333:
{{seealso|Ancillary Orders}}
{{seealso|Ancillary Orders}}
'''Offence-specific Orders'''
; Offence-specific Orders
{{AOrderHeader}}
{{AOrderHeader}}
| [[DNA Orders]]  ||s. 266 ||
| [[DNA Orders]]  ||s. 266 {{DescrSec|266}} ||
** {{SecondDNA(CtoE)|s. 266}}
** {{SecondDNA(CtoE)|s. 266}}
|-
|-
| [[Weapons Prohibition Orders]]  || s. 266 ||
| [[Weapons Prohibition Orders]]  || s. 266 {{DescrSec|266}} ||
** {{Section110|s. 266}}
** {{Section110|s. 266}}
|-
|-
| [[Delayed_Parole_Eligibility|Delayed Parole Order]] ||s. 266||
| [[Delayed_Parole_Eligibility|Delayed Parole Order]] ||s. 266 {{DescrSec|266}}||
* {{ParoleDelayEligible|1|s. 266}}
* {{ParoleDelayEligible|1|s. 266}}
{{AOrderEnd}}
{{AOrderEnd}}


'''General Sentencing Orders'''
; General Sentencing Orders
{{GeneralSentencingOrders}}
{{GeneralSentencingOrders}}


'''General Forfeiture Orders'''
; General Forfeiture Orders
{{GeneralForfeitureOrders}}
{{GeneralForfeitureOrders}}


==Record Suspensions and Pardons==
==Record Suspensions and Pardons==
{{RecordSuspension|s. 266 [assault]}}
==History of Common Assault==
* [[History of Common Assault (Offence)]]
==See Also==
==See Also==
'''Related Offences'''<br>
; Related Offences
* [[Assault with a Weapon or Causing Bodily Harm (Offence)]]
* [[Assault with a Weapon or Causing Bodily Harm (Offence)]]
* [[Aggravated Assault (Offence)]]
* [[Aggravated Assault (Offence)]]
* [[Assault Peace Officer (Offence)]]
* [[Assault Peace Officer (Offence)]]
'''Trial-related Matters'''<br>
; Trial-related Matters
* [[Assault-based Offences (Model Examinations)]]
* [[Assault-based Offences (Model Examinations)]]


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{{OffencesNavBar/Violence}}
{{OffencesNavBar/Violence}}
[[Category:Offences Punishable on Summary Conviction]]
[[Category:Offences with Maximum Penalty of 5 Years]]

Latest revision as of 11:27, 19 August 2024

This page was last substantively updated or reviewed January 2016. (Rev. # 96160)


Common Assault
s. 265, 266 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

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

* Must be indictable.
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 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
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)		 Preliminary Inquiry
s. 266 [assault] Hybrid Offence(s) (* only if Crown proceeds by Indictment) (under 14 years max)

Offences under s. 266 [assault] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Release
Offence(s) Appearance Notice
by Peace Officer
s. 497		 Summons
by Judge or Justice
s. 508(1), 512(1), or 788		 Release by
Peace Officer
on Undertaking
s. 498, 499, and 501		 Release By
a Judge or Justice
on a Release Order
s. 515 to 519		 Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act
s. 2 ID Crim. Act
s. 266 [assault]

When charged under s. 266 [assault], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Fingerprints and Photos

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 criminal or regulatory prosecutions, 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
Offence(s) Wiretap
Eligible
s. 183		 Dangerous Offender
Designated Offence
s. 752		 Serious Personal
Injury Offence
s. 752		 AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 266 [assault] (under 10 years max) (under 10 years max)

Offences under s. 266 [assault] are "designated" offences under s. 752 for dangerous offender applications.

Offences under s. s. 266 [assault] are offences of "serious criminality" as defined in s. 36 of the Immigration and Refugee Protection Act. A conviction will render a permanent resident or a foreign national is "inadmissible on grounds of serious criminality".

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 (CanLII), (DOJ)

Note up: 265(1), (2), (3), and (4)

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 (CanLII), (DOJ)

Note up: 266

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
266 assault "..., did assault [alleged victim] and did thereby commit an offence contrary to section 266 of the Criminal Code.

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 the 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 the 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 the 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

"Assault"

The term "assault" found in s. 266 is meant to include the common law terms of "assault" and "battery."[1] Words alone cannot be an assault. It requires an "act or gesture", but there is no need for physical contact.[2]

  1. ↑ R v Cadden, 1989 CanLII 2847 (BC CA), 48 CCC (3d) 122, per Hinkson JA, at para 10
  2. ↑ Cadden, ibid., at paras 16 to 18 R v Johnson, 2006 CanLII 37519 (ON SC), at para 152 R v Edgar, 2016 ONCA 120 (CanLII), at para 10

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), 253 CCC (3d) 493, per Rowles JA
    R v Burden, 1981 CanLII 355 (BC CA), (1981) 25 CR (3d) 283, per McFarlane JA
  2. ↑ R v Palombi, 2007 ONCA 486 (CanLII), 222 CCC (3d) 528, per Rosenberg JA
    Burden, supra
    R v McDonald, [2012] NJ No 2504 (CA) (*no CanLII links)
    Collins v Wilcock , [1984] 3 All ER 374 (Q.B.) (UK), 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 CanLII 77 (SCC), [1991] 2 SCR 714, per Gonthier J
  4. ↑ e.g. see discussion in R v Bennett, 2006 CanLII 31012 (NL PC), per Gorman J, at paras 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] 1 SCR 330, per Major J
    R v Bartlett, 1989 CanLII 4889 (NLSCTD), Nfld. & PEIR 143 (NLSC), per Cameron J
  2. ↑ R v George, 1960 CanLII 45 (SCC), [1960] SCR 871, per Fauteux J
  3. ↑ F v West Berkshire Health Authority , [1989] 2 All ER 545 (H.L.) (UK), at page 564
  4. ↑ R v Starratt, 1971 CanLII 541 (ON CA), 5 CCC (2d) 32 (CA), per Gale CJ
    R v Wolfe, 1974 CanLII 1643, 20 CCC (2d) 382, per Gale CJ

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), per Greenberg J - 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
Offence(s) Testimonial Screen (486) Support Person Screen or CCTV (286.2) Cross-exam. Prohib. Sexual Offence Publication Ban Victim's Right to Privacy in Records Identity Protection Order (486.31)
s. 266 [assault]
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
Offence(s) Victim Notice
of Agreement
s. 606(4.1) [SPIO]		 Victim Queried
for Interest in Agreement
s. 606(4.2) [5+ years]		 Victim Notice
for Restitution
s. 737.1		 Victim Notice
of Impact Statement
s. 722(2)
s. 266 [assault] (* only if Crown proceeds by Indictment)

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 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 266 [assault] indictable election 5 years incarceration

Offences under s. 266 [assault] are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

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 [assault] any

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

Assault Upon Children

Most of the abuse of children can be divided into three categories:[1]

  1. The application of force with, if not the intention, the expectation of causing injury or, an indifference as to whether injuries will result;
  2. the application of force where a parent or other custodian of a child is immature and is unskilled in matters of child care, and, acting out of emotional upset, frustration or impatience, does not fully appreciate the serious injuries which might result; and
  3. cases involving diminished responsibility through mental disorder where the of normal mental condition of the accused requires that treatment of the offender be given a priority over the principles of general and individual deterrence.

The first of which is the more aggravating form of the offence. The second is the lesser form of offence and may focus more on rehabilitation.[2] The second and third categories are not so minor as to mean that jail sentences should not be imposed.[3]

Assaults by Peace Officers

Sentences for assaults by peace officers on prisoners should be upon general deterrence and denunciation.[4]

Given police's important role in society, they are expected to adhere to "exemplary behaviour" in both their professional and private lives.[5]

  1. ↑ R v Berg, 2017 SKPC 11 (CanLII), at para 12
    R v Marks, (1994) 1994 CanLII 9742 (NL CA), NJ No 241, at paras 27 and 28 - describes two of three categories
    R v Evans, 1996 CanLII 19983 (AB PC)
    R v Laberge, 1995 ABCA 196 (CanLII), per Fraser ACJ
    R v Hilterman, 1993 CanLII 16387 (AB CA), per Belzil JA and Prowse J
  2. ↑ Marks, ibid., at para 28
  3. ↑ Berg, supra, at para 12
    R v Nickel, 2012 ABCA 158 (CanLII), per Watson JA
  4. ↑ R v Andalib-Goortani, 2015 ONSC 1403 (CanLII), per Trotter J, at para 59
  5. ↑ R v DED, 2007 ABQB 508 (CanLII), per J, at para 81
    R v Wallator, [1994] A.J. No. 194 (Prov. Ct.) at para 18 ("Police officers have an important peace role to play in society. They are under constant public scrutiny with a public demand for exemplary behaviour. There is a public attitude that police officers are expected to live, and to reflect higher standards of attitude and conduct, not only in their professional lives but also in their private lives, which is much more than is required of private citizens. Police forces reinforce these views through internal discipline procedures and regular personal evaluation reports (which are reviewed by supervisors).")

Ranges

see also: Common Assault (Sentencing Cases)
Assaults Upon Children

It has been noted that the precedents in Newfoundland have shown typical ranges from conditional discharges to 6 months jail for common assault.[1]

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.[2]

  1. ↑ R v Norman, 2011 CanLII 54410 (NL PC), [2011] N.J. No. 214, per Gorman J
  2. ↑ R v Andalib-Goortani, 2015 ONSC 1403 (CanLII), per Trotter J, at para 59

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 266 [assault]
Weapons Prohibition Orders s. 266 [assault]
    • 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 [assault]
  • 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 the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
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(1) 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. NB: does not apply to summary offences.

Record Suspensions and Pardons

Convictions under s. 266 [assault] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History of Common Assault

See Also

Related Offences
Trial-related Matters
v • e
 
Violent Offences
Offences
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