Assault Charge - Section 266 of the Criminal Code

Assault Charge Defined

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In order to prove assault in a court of law, the prosecutor must establish that the defendant had the intent to cause fear, apprehension, or harm to the victim. The victim must have reasonably believed that they were in danger of physical harm or offensive contact. Additionally, the defendant must have taken some action that caused the victim to fear for their safety, such as making a threatening gesture or verbal threat. Defenses to assault charges may include self-defense, defense of others, defense of property, consent, and lack of intent. Self-defense, for example, allows a person to use reasonable force to protect themselves or others from imminent harm. Consent may be a defense if the victim voluntarily agreed to engage in a physical altercation. Overall, assault is a serious offense that can have significant legal consequences. It is important to understand the laws surrounding assault in your jurisdiction and seek legal advice if you are facing assault charges.

The Criminal Code Definition

An assault charge is defined under section 265(1) Criminal Code of Canada :

 (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.

A person is charged with assault under section 266 of the Code. This is a hybrid offence, meaning that the Crown may elect to try by indictment or may proceed summarily.

Interpretation of the Offence of Assault

Assault is more than just physical contact, mere words won't constitute assault. Physical contact is more commonly associated with assault, however, a gesture or threat can constitute assault.

The offence of Assault is a Mens Rea offence, that is to say, it must include intention. Given an instance of physical contact, someone walking by you and bumping into you due to carelessness or due to extenuating circumstances would not be assault. Despite the physical contact, there was no intention of harm, therefore there could be no assault charge.

Note that the amount of force is not important, only that there was force, and it was intentional. This means that a person gesturing at you in a forceful intimidating manner to have you move can lead to a conviction of assault.

Elements of an Assault Charge

As stated above, an assault charge is a Mens Rea offence. This means that a part of the element of the offence is the intention to use force. However, while the intention must be there, other elements must be there as well. These elements are determined by which definition of assault is used. For instance, the culprit attempted or threatened to use force, and that threat was intended to be taken seriously. Accordingly, if you are 5' tall and 90 pounds, threatening to use force on a 6', 250 pound bodybuilder, it couldn't be taken seriously. Unless there was a weapon, including an imitation weapon, that was visible. Then it becomes assault, carrying a weapon.

Sentencing Provisions

Sentencing for Assault under section 266 ranges from a discharge to a maximum of 5 years incarceration. Under summary election, the maximum sentence is 2 years less a day and a $5,000 fine.

If you're charged with assault, find out what a paralegal can do for you. Paralegals can be the more affordable choice to a lawyer in some circumstances. It is a good idea to get a proper understanding of Assault charges in Canada.


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