Canadian Criminal Law/Offences/Common Assault

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Common Assault
s. 265 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
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)
Maximum 6 months jail or $5,000 fine
Indictable Dispositions
Avail. Disp. same as summary
Maximum 5 years jail
References
Offence Elements
Sentence Principles
Sentence Digests

Summary[edit]

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.

Legislation[edit]

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.

...

CCC

Proof of Offence[edit]

265(1)(a)[edit]

  1. identity of accused
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the accused applied force on the victim
  5. the accused 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

265(1)(b)[edit]

  1. identity of accused
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the accused attempted or threatened to apply force to the victim
  5. the accused meant the threat to be taken seriously
  6. the accused 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

265(1)(c)[edit]

  1. identity of accused
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the accused was "openly wearing or carrying a weapon or imitation thereof"
  5. the accused 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

All elements in bold are essential elements.

Interpretation[edit]

Force[edit]

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


  1. R. v. Dawydiuk (2010), 253 C.C.C. (3d) 493 (B.C.C.A.)
    R v Burden, (1981) 25 CR (3d) 283 (BCCA)
  2. R. v. Palombi (2007), 222 C.C.C. (3d) 528, 2007 ONCA 486 (CanLII) (Ont. C.A.)
    R v Burden, (1981) 25 CR (3d) 283 (BCCA)
    R. v. McDonald, [2012] N.J. No. 2504 (C.A.)

Intention[edit]

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]

Force due to carelessness or reflex is not sufficient.[3]

  1. R. v. Ewanchuk 1999 CanLII 711 (SCC), (1999), 131 C.C.C. (3d) 481(S.C.C.)
    R. v. Bartlett, (1989), 79 Nfld. & P.E.I.R. 143 (N.L.S.C.)
  2. R v George 1960 CanLII 45 (SCC)
  3. R. v. Starratt, [1972] 5 C.C.C. (2d) 32 (C.A.); R. v. Wolfe (1974), 20 C.C.C. (2d) 382 (Ont. C.A.)
    R. v. Wolfe (1974) 20 CCC (2d) 382

Consent[edit]

See Canadian Criminal Law/Consent (violent offences)

Traditional Defences[edit]

See also[edit]

Domestic Assault[edit]

  • R. v. B.S.R., 2006 CanLII 29082 [1] -- use of discreditable conduct
  • R. v. Dejong, 2005 BCPC 546 [2] -- acquitted on de minimus

See Also[edit]