A push in a parking lot and a stabbing outside a bar can both be charged as assault. That single word covers a huge range of conduct, and the differences between the levels decide what you are facing, from a possible discharge at one end to a long penitentiary term at the other.
Many people charged with assault have never been in trouble before. It may have started with an argument at a banquet hall, a dispute with a neighbour in Springdale, or a shoving match at a kids’ soccer game. By the time the police leave, there are release papers, a condition not to talk to someone, and a court date. It’s easy to underestimate this kind of charge because it feels personal or minor. It’s just as easy to panic. Neither reaction helps.
This overview is general information about Canadian criminal law and doesn’t amount to legal advice. Assault cases are very sensitive to their facts, so what you read here may not apply to yours.
What Counts as an Assault
Section 265 of the Criminal Code defines assault more broadly than most people realize. A person commits an assault when, without the other person’s consent, they:
- intentionally apply force to that person, directly or indirectly
- attempt or threaten, by an act or a gesture, to apply force, if they have or cause the other person to believe on reasonable grounds that they have the present ability to carry it out
- accost or impede someone, or beg, while openly wearing or carrying a weapon or an imitation of one
So no injury is needed. A hard poke in the chest can qualify. A raised fist can too, in the right circumstances, since the force need not actually land.
Consent is at the centre of the definition. If it was truly given, an application of force may not be an assault. Think of a hockey game with ordinary body contact. However, under section 265(3), consent obtained through force, threats, fraud or the exercise of authority doesn’t count. Courts have also put limits on how far consent can go. Agreeing to a fight won’t necessarily protect someone who intends and causes serious harm.
The Levels, From Least to Most Serious
| Offence | What it involves | Maximum |
|---|---|---|
| Assault (s. 266) | Force or threat, with no weapon and no bodily harm | 5 years by indictment; up to two years less a day and a $5,000 fine on summary conviction |
| Assault with a weapon or causing bodily harm, or choking (s. 267) | Carrying, using or threatening to use a weapon or imitation; causing bodily harm; or choking, suffocating or strangling | 10 years by indictment, or summary conviction |
| Aggravated assault (s. 268) | Wounding, maiming, disfiguring or endangering life | 14 years; indictable only |
A few points help make sense of the table.
“Weapon” is a broad term. The Code’s definition covers anything used, or intended to be used, to cause death or injury or to threaten or intimidate. A bottle, a belt, a phone or a car door could be a weapon, depending on how it was used.
“Bodily harm” has a legal meaning. Under section 2, it refers to any hurt or injury that interferes with a person’s health or comfort and is more than merely transient or trifling. Serious bruising, a broken tooth or a concussion could qualify. A brief redness probably wouldn’t, but the line is rarely clear in advance.
Choking is treated separately. Since it’s listed in section 267(c), a charge can be elevated without any visible injury. It also triggers a reverse onus at bail in many cases.
Other assault offences exist too. Assaulting a peace officer, for example, has its own section, and the same goes for unlawfully causing bodily harm and for sexual assault, which isn’t covered here. Federal sentencing law also treats offences against first responders and transit workers as aggravating, so an altercation with a Brampton Transit driver may be looked at more seriously than a similar one elsewhere.
After the Arrest: The Usual Path
Peel Regional Police will often release a person charged with a less serious assault on an undertaking, with conditions like not contacting the complainant and staying away from a particular address. Those who are held go to a bail hearing.
From there, most cases follow a similar series of steps at the courthouse at 7755 Hurontario Street:
- Fingerprints and photographs, on the date in your release documents.
- First appearance. You or your lawyer collect disclosure, and the case is adjourned.
- Disclosure review. This generally includes the police synopsis, witness statements, photos, medical information, and any 911 calls and video.
- Crown pre-trial. Your lawyer speaks to the prosecutor to learn the Crown’s position and to raise problems in the evidence.
- Judicial pre-trial. A judge may help narrow down the issues and set a trial estimate, particularly in longer matters.
- Resolution or trial. Most assault trials are in the Ontario Court of Justice. An aggravated assault prosecuted by indictment may offer a choice of courts and may include a preliminary inquiry where it’s available.
Under the Supreme Court’s decision in R. v. Jordan, the presumptive ceiling for bringing a case in the provincial court to the end of trial is 18 months. Delay rules are complex, and some periods don’t count, but your lawyer will keep an eye on the clock.
The Crown decides whether to proceed by summary conviction or by indictment when a charge permits either. That decision is one of several factors that affect the maximum penalty, the procedure, and even how long you’d wait for a record suspension later on.
What You Should Not Do
Conditions usually come first in these cases. If your paperwork says no contact with someone, it means no contact, whether by text, social media, through friends, or by showing up to apologize. The fact that the other person contacts you first isn’t a defence, and if they call you, you shouldn’t respond. A breach is a new charge, and it could lead to you being held in custody.
Also, try to resist the urge to explain. Giving police a statement “to clear things up” may feel like the honest thing to do, but you’re entitled to get advice first. People in stressful situations often get details wrong, and those errors can later be used to attack their credibility. If police want to speak with you before you’ve received legal advice, you can politely say that you’d like to talk with your lawyer first.
Preserve anything helpful. Take photos of your own injuries and damaged clothing right away. Save relevant messages, and note who was there and where cameras may be located. Many stores, restaurants and plazas overwrite video after a short while, so your lawyer may need to move quickly.
Defences That Commonly Come Up
Reasonable doubt. The Crown has to prove each part of the offence beyond a reasonable doubt. Many assault trials come down to whose account the court accepts, or whether it’s left unsure. Inconsistencies, motives to lie, video and independent witnesses often matter a great deal.
Self-defence. Under section 34, a person isn’t guilty if they reasonably believed force or a threat was being used against them or another person, they acted to defend or protect, and the act was reasonable in the circumstances. Courts consider things like how serious and imminent the threat was, whether other options existed, the person’s own role in the incident, the use of any weapon, the size and abilities of those involved, and any history between them. Proportion matters too. Responding to a push by punching someone repeatedly may fall outside the defence, even if the first shove was unjustified.
Defence of property. Section 35 offers a separate, more limited defence for those protecting property in their peaceable possession. Force still has to be reasonable. Tackling a person who is walking away from your shop is a very different scenario from stopping someone mid-theft.
Consent. This can apply in sports, some mutual altercations, and physical contact that’s part of everyday life. As mentioned, it has legal limits.
Accident or lack of intent. Assault requires intentional force. Truly accidental contact, such as an elbow in a crowded Bramalea Terminal bus line, is not assault, though the evidence must support that account.
Charter issues. Where police breached your rights, for example in how they took a statement, a court might exclude evidence. That isn’t automatic.
Ways a Case Can End
Not every case ends in a trial. Depending on the evidence, the seriousness of the allegation and your background, a matter might be resolved through:
- Withdrawal, if there is no reasonable prospect of conviction, or if prosecuting isn’t in the public interest.
- A peace bond under section 810, where the Crown withdraws the charge in exchange for an agreement to keep the peace and follow set conditions for up to a year. It isn’t a conviction, but breaking one is a crime.
- Diversion through the Direct Accountability Program. Ontario’s directive on community justice programs lists aggravated assault as never eligible, and intimate partner violence as presumptively ineligible except in exceptional cases. Other assault charges aren’t automatically excluded, but the person must accept responsibility, and the prosecutor has to agree.
- A guilty plea with a discharge or another sentence. A court may grant an absolute or conditional discharge for most assault charges, where this is in your best interests and not contrary to the public interest. Aggravated assault isn’t eligible, as it has a 14-year maximum.
- A trial, ending in an acquittal or a conviction.
Judges weigh a range of factors at sentencing, including how serious the conduct and injury were, your record and your remorse, as well as things you’ve done since the incident, such as counselling. Assaults against a spouse or partner, or a child, are aggravating under section 718.2, and repeat violent offending has been given further weight by Parliament.
Consequences Beyond the Sentence
A violent offence on a record may have an outsized effect on employment, especially in health care, education, security or anything requiring a vulnerable sector check. It can also complicate cross-border travel and a family court matter involving your children.
Immigration deserves particular attention. Since the maximum for section 267 is 10 years, it can be treated as serious criminality for a permanent resident, whether or not the Crown proceeded summarily. A sentence that seems minor in criminal court can have serious immigration effects, so a lawyer needs to consider this before any plea is entered.
Next Steps
Keep your papers together, write down your account for your lawyer only, and follow your conditions to the letter. Then get advice before your first court date. Our assault defence page has more about how these cases are handled, and you can contact us to arrange a consultation. Every case depends on its evidence, and no one can promise an outcome, but understanding your position early can help you make more careful choices along the way.