Common Assault (Offence)

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;

< Criminal Law/Sentencing
< Offences

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

Offence(s)	Pub. Ban of Participants (486.5(1),(2))	Youth Witness or Youth Alleged Victim	(486.31)	Jury ID ban (631(6))	Evidence Ban (Bail: 517) (Prelim.: 539) (Jury: 648)	Sexual Offence Publication Ban (486.4)
{{{1}}}	{{{2}}}	{{{2}}}		s. 266 [assault]

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

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

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
		"..., contrary to section 266 of the Criminal Code.

Proof of the Offence

Proving assault by force under s. 265(1)(a) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit applied force on the victim ☐ 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) ☐ injuries, if any, that occurred ☐ compare physical build between the accused and victim ☐ that the complainant did not consent (see also s. 265(3) and (4)) ☐ that the complainant did not assault, threaten or provoke the accused ☐ whether an alcohol was involved	Proving assault by threat under s. 265(1)(b) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit attempted or threatened to apply force to the victim ☐ 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 ☐ no intentional physical contact was made ☐ compare physical build between the accused and victim ☐ that the complainant did not consent (see also s. 265(3) and (4)) ☐ that the complainant did not assault, threaten or provoke the accused ☐ whether an alcohol was involved
Proving assault, carrying weapon under s. 265(1)(c) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit was "openly wearing or carrying a weapon or imitation thereof" ☐ the culprit accosted or impeded the victim or begged ☐ compare physical build between the accused and victim ☐ that the complainant did not consent (see also s. 265(3) and (4)) ☐ that the complainant did not assault, threaten or provoke the accused ☐ 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]

↑ R v Dawydiuk, 2010 BCCA 162 (CanLII), (2010), 253 CCC (3d) 493 (BCCA), per Rowles JA
R v Burden, 1981 CanLII 355 (BC CA), (1981) 25 CR (3d) 283 (BCCA), per McFarlane JA
↑ R v Palombi (2007), 222 CCC (3d) 528, 2007 ONCA 486 (CanLII) (Ont. C.A.), per Rosenberg JA
Burden, supra
R v McDonald, [2012] N.J. No. 2504 (C.A.) (*no CanLII links)
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.”)
↑ see R v Jobidon, 1991 CanLII 77 (SCC), , [1991] 2 SCR 714 (CanLII), per Gonthier J
↑ 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]

↑ R v Ewanchuk, 1999 CanLII 711 (SCC), (1999), 131 CCC (3d) 481(SCC), per Major J
R v Bartlett, 1989 CanLII 4889 (NL SCTD), (1989), 79 Nfld. & P.E.I.R. 143 (NLSC), per Cameron J
↑ R v George, 1960 CanLII 45 (SCC), per Fauteux J
↑ F v West Berkshire Health Authority, [1989] 2 All ER 545 (H.L.), at page 564
↑ R v Starratt, 1971 CanLII 541 (ON CA), [1972] 5 CCC (2d) 32 (C.A.), per Gale CJ
R v Wolfe (1974), 20 CCC (2d) 382 (Ont. C.A.), 1974 CanLII 1643 (ON CA), per Gale CJ

Attempts or Threatens

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

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

Assaults by Peace Officers

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

↑ R v Andalib-Goortani, 2015 ONSC 1403 (CanLII), per Trotter J, 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]

↑ 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	If convicted under s. 266, there is a discretionary DNA Order as a secondary designated offence listed under s. 487.04 (c), (d) or (e), regardless of Crown election.
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	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".