An assault conviction has serious consequences. Simple assault carries a maximum penalty of five years in jail. Assault with a weapon and assault causing bodily harm can be punished by up to 10 years in jail, and for aggravated assault, the potential punishment is up to 14 years. Any charge of assault – no matter how serious or trivial – carries the real risk of a permanent criminal record, which can have life-changing consequences. A criminal record can make it harder to enter certain professions, to get a job, or to travel to the United States.

Criminal lawyer Hamilton has a lot of experience defending people charged with assault all across Hamilton. We know how to craft a defence to these charges, to find and preserve the evidence needed to back it up, and to marshal that evidence in court to provide the best defence possible to the charge. We also use our experience in the court system to successfully negotiate withdrawals and other resolutions to many charges before they ever get to trial. Sometimes, trials can’t be avoided; in that case, having a lawyer with a proven track record in Court is the most important thing you can do to help your case. You need a lawyer who can persuasively tell your story and present your defence through cross-examination of the complainant, by preparing you to testify, and by using the law and the facts to persuasively argue your defence in closing submissions.

If you have been charged with an assault or believe that you might be, contact us using the form on this web page immediately for a free consultation about your case.

What is Assault?

The definition of assault is found in the Criminal Code in section 265. Generally, an assault occurs when a person intentionally applies direct or indirect force to another person without the other person’s consent. An assault can also occur when a person attempts or threatens to intentionally apply direct or indirect force to another. A person can also be convicted of assault if they accost or impede another person or beg while openly wearing or carrying a real or imitation weapon.

In its simplest form, assault can be described as unwanted physical contact or touching from one person to another. This means that a person applied some form of physical force to someone else, either directly or indirectly without consent.  Assault is when there is person-to-person touching, such as being punched, kicked, pushed, or hair-pulling. Assault may also involve the use of an object to bring harm to another, such as hitting someone with a baseball bat (this would be classified as assault with a weapon).  Michael Juskey is a Toronto assault lawyer who has successfully defended hundreds of assault cases.

Assault is most often thought of as there being physical contact, such as being kicked. However, there is also technical assault, which is when someone approaches you aggressively with the potential of striking you. Even if they don’t, by will or chance, it could still be a form of assault. Keep in mind that assault involves intent, as in the person wanted to deliver some form of physical contact. Physically bumping into someone on the bus would not be considered assault because it was accidental.

Is harm an element of an assault charge?

A person need not harm someone for an assault to occur. A person may commit an assault although he exerts no degree of strength or power when touching the victim. The force however must be offensive or an affront to an individual’s dignity. A push or pinch in some cases may be sufficient to establish a criminal assault.

How much force is required to commit an assault?

Any amount of intentional touching may constitute an intentional application of “force”.

“Force” in the sense of violent or forceful contact is not required to ground an assault conviction. Some cases are dismissed because the amount of force used is minimal.  Examples of past assault charges dismissed for using minimal force include pushing the complainant to exit his office, where there was a minor contact in the course of a heated domestic squabble, or incidental physical contact occurring during a disagreement with a parking control officer.

What if I accidentally hit someone?

The application of force must be intentional. Accidentally hitting someone during an epileptic seizure, for example, would not constitute an assault. Likewise, The touching that occurs due to the normal jostling that takes place in a crowded bus is an example of the unintentional or accidental application of force that will not lead to an assault conviction.

A reflex action does not constitute an assault. However, accidentally hitting one person in an attempt to hit another is not a defence to assault. It does not matter who the intended victim is, as long the offender intended to apply force to any individual, it is still an assault.

Types of assault

There are several types of assault in the Criminal Code:

  • Simple assault: This offence captures any intentional non-consensual application of force by one person on another
  • Assault with a weapon: This offence is set out in section 267 of the Criminal Code and it applies to anyone who commits an assault while carrying, using, or threatening to use a weapon
  • Assault causing bodily harm: If an assault causes “bodily harm” – like a bloody nose or black eye – someone can be charged with assault causing bodily harm. This is a more serious type of assault
  • Aggravated assault: Aggravated assault is the most serious type of assault charge. Section 268 of the Criminal Code says an aggravated assault happens when one person “wounds, mains, disfigures or endangers the life” of someone else through an assault
  • Domestic assault: A domestic assault refers to a situation where an assault happens between two people who are in or have been in some sort of relationship with each other (e.g. married, dating, or recently separated). There is no special offence in the Criminal Code for domestic assaults and they are all prosecuted as one of the types of assault listed above. However, the police, Crown, the Criminal Code, and judges all treat domestic assaults as a particularly serious type of assault, and the fact that there was a relationship between the parties at the time of the assault will be used as an aggravating factor at sentencing. For more specific information on domestic assault, visit our domestic assault page.

Defences available against charges of Assault

Being charged with assault can be an overwhelming experience for the accused and their family. Therefore, it is essential to take the allegations of any assault seriously, as the penalty upon conviction may include fines and imprisonment. Some of the significant defences available against the charges of assault are listed below:  

  1. Consent – The definition of assault includes using force against another person without their consent. Therefore, negating the non-consensual use of force is crucial to making a reasonable defence. It is a good defence if the accused can prove that the other party had consented to use force. 
  2. Self-defence – It is easier to defend the charges of assault once the accused establishes the use of force as a part of the act of self-defence. To take advantage of this defence, the accused has to prove that his act of using force was nothing but an attempt to protect himself or any other person against an imminent assault from the other party. 
  3. Lack of Criminal Intent – Another option to defend the charges of assault is to prove the lack of criminal intent of the accused. The accused can take advantage of this defence by establishing that using force against another person was an accident or unintentional.

It’s vital to hire a lawyer

Being charged with a criminal offence, such as assault, is a stressful and tolling experience. It is important to seek professional advice from the best assault lawyer about your rights from the beginning.

An assault lawyer Hamilton can also do much more. They can:

  • Work to secure your release with the most favourable conditions;
  • Help you navigate the criminal justice system;
  • Ensure that the Crown meets its disclosure obligations;
  • Identify systematic or administrative errors in the criminal process, including Charter rights violations;
  • Speak to the Crown on your behalf, negotiate, and advise you of your options;
  • Assess all the evidence against you and build a strong defence, so the charges are withdrawn or you are acquitted;
  • Gather further evidence to support your version of the events and to question the complainant’s reliability and credibility;
  • Obtain a more lenient sentence in the event a guilty plea or conviction is entered.

All criminal cases are complex and fact-specific. We have provided general information about how assault cases are handled. Hiring an assualt lawyer provides your best chance at mounting a successful defence. For more information about how they can help, they are easy to contact.