The topics in the Dial-A-Law series provide general information on legal issues within the Province of Alberta. The purpose of this topic is to inform you of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.
This topic will discuss the various types of assault under the Criminal Code and assault in civil law. If you have been charged with any type of assault, you should seek legal advice immediately. Calgary Legal Guidance offers special services for victims of domestic assault. For more information, please call 403-234-9266.
Assault under the Criminal Code of Canada
The Criminal Code defines simple assault in three ways:
- (1) An assault can occur if a person intentionally applies force, either directly or indirectly, to another person without their consent. Examples of this kind of assault include punching, pushing, slapping, kicking, spitting, or pulling a chair out from someone who is about to sit down. This is also known as a simple assault.
- (2) An assault can occur if an offender attempts or threatens to apply force to another person, which causes that person to believe that the offender will follow through with their intent to assault. In order to be convicted of this type of assault, a Crown prosecutor must prove that the offender did something that threatened the use of force against the victim, and that the victim had a reasonable and credible belief that the offender would hurt them. For example, if you try to hit a person and miss, and the person believes you are trying to hurt them, you can still be charged with assault (even though you did not touch them or injure them).
- (3) An assault can occur when a person confronts another person, prevents another person from moving around freely, or confronts or begs another person while openly wearing or carrying a weapon, or something that looks like a weapon. For example, asking someone for money while visibly carrying a knife, even if you are not pointing the knife at anyone, or threatening to use the knife, is assault.
Assault as a Summary Conviction Offence or Indictable Offence
Depending on how serious the assault was, the Crown prosecutor can prosecute the charge as either a summary conviction offence or an indictable offence. If the assault is more serious, it is likely that the charge will be in the form of an indictable offence.
- If you are convicted of assault as a summary conviction offence, you may be given a fine of up to $5,000.00, or 6 months in prison, (or both).
- If you are convicted of assault as an indictable offence, you could be sentenced to up to 5 years in prison.
Aggravated assault is the most serious type of assault. An assault is considered “aggravated” if it leads to the victim being wounded, maimed, or disfigured, or causes the victim’s life to be endangered in any way. If convicted, aggravated assault is an indictable offence carrying a maximum penalty of 14 years in prison. A victim can never consent to being the victim of an aggravated assault.
Assault Causing Bodily Harm
Assault causing bodily harm is another serious form of assault. In order to be convicted of assault causing bodily harm, a Crown prosecutor must prove that you caused the victim to be injured and that you were aware of, or reckless to, the fact that your actions could have caused the injury. Bodily harm is harm to another person’s body that is beyond trivial. For example, cuts or serious scratches can be bodily harm.
If convicted of assault causing bodily harm as an indictable offence, the maximum penalty is 10 years in prison. If convicted of assault causing bodily harm as a summary conviction offence, the maximum penalty is 18 months in prison.
Assault Using or Threatening to Use a Weapon
Assault using, or threatening to use a weapon occurs when an offender threatens to use a weapon, or uses something that looks like a weapon against the victim.
If convicted of assault using or threatening to use a weapon as an indictable offence, the maximum penalty is 10 years in prison. If convicted of assault causing bodily harm as a summary conviction offence, the maximum penalty is 18 months in prison.
Consenting to a Simple Assault
If the accused and the victim consented, or agreed, to the use of force in a simple assault, it may not be an assault. There are circumstances where even if consent to an assault was given, it may not be accepted as valid consent by the Court. For example, there is never consent where someone uses their position of authority, trickery, or fraud to get the victim to consent to an assault.
A victims consent is not valid when the consent was forced. This can include where a victim was being threatened. For example, if a woman consents to being assaulted because her husband is threatening to hurt their child, the consent is not valid.
No person can consent to an assault with a weapon, assault causing serious bodily harm, or aggravated assault. For example, if you are involved in a fist-fight or bar brawl, and you are seriously injured by another person, the Court cannot find that you consented to the assault. As there was no consent, the offender will face charges of either assault causing bodily harm, or aggravated assault, depending on the extent of your injuries.
Assault in Civil Law
In civil cases, the police do not lay criminal charges, but the person who was assaulted can sue the person who assaulted them. This means that you would personally sue the person who assaulted you.
There are two type of assault in civil law: assault and battery. Civil assault occurs when a person threatens or attempts to hurt someone else. Battery occurs when a person intentionally applies force to another person without their consent.
Dial-A-Law is a Calgary Legal Guidance public service project funded in part by the Alberta Law Foundation.