Assault & Battery Law in Ontario

You may hear “assault” and “battery” used interchangeably in Ontario but there are important differences between these two terms.

Assault is a criminal offence defined under the Criminal Code of Canada—while battery is not. The distinction should, however, be made between assault and assault causing bodily harm, the latter of which is sometimes considered the same as “battery.”

Assault refers to an intentional act of applying force to another person without their consent or the act of threatening to apply force that causes a reasonable fear of imminent harm. No physical injury is required for assault charges to be filed though sometimes relatively minor or superficial injuries are charged as simple assault.

Assault causing bodily harm (“battery”), on the other hand, is a more serious charge involving a weapon, the threatened use of a weapon or assault that causes damage to an individual’s health and well-being.

Let us consider the terms further—and what they could mean for anyone charged with an assault crime in Ontario.

Battery is not defined in the Canadian Criminal Code, but Section 267 refers to the offence of assault with a weapon or causing bodily harm as follows:

Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on summary conviction who, in committing an assault,

1.  carries, uses, or threatens to use a weapon or an imitation thereof,
2.  causes bodily harm to the complainant, or
3.  chokes, suffocates, or strangles the complainant.

So, to carry, use or threaten to use a weapon or an imitation weapon and cause bodily harm to or choke, suffocate or strangle another person constitutes this offence, which is the closest offence to battery in the Criminal Code.

Under Canadian law, nobody can legally consent to bodily harm. Arguing that the other person consented is no defence to a charge of assault with a weapon or causing bodily harm.

Examples of battery

Typically, the following examples may constitute battery in Ontario:

• Deliberately striking another person and causing head injuries.
• A forceful and intentional attempt to engage in sexual intercourse without the other person’s consent.
• Physical mistreatment by individuals responsible for the care of residents in nursing homes, including hitting or restraining residents against their will.

Assault is defined in Section 265 of the Criminal Code as follows:

A person commits an assault when

1. without the consent of another person, he applies force intentionally to that other person, directly or indirectly.
2. 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 affect his purpose; or
3. while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

So, a simple assault charge may not necessarily involve bodily harm or the direct use of force. It should not be confused with battery or assault with a weapon or causing bodily harm.

Simple assault charges can be filed if the incident causes psychological harm to the complainant (such as fear, panic, or anxiety) rather than physical harm.

The main distinction between assault and assault causing bodily harm (battery) is that the latter involves physical force and potentially results in lasting physical injuries. It also often involves the use of a weapon or the threat to use a weapon.

If an individual threatens to inflict bodily harm upon another person, it would usually be charged as an assault if no physical injury results—or the injuries are considered minor and temporary.

Sometimes, consent can be used as a defence against assault—for instance, if two adults mutually agree to participate in a fight and the physical force applied is considered “consensual.” However, if the fight escalates and more severe physical injuries are caused, consent cannot be used as a defence and the criminal charge would likely be assault causing bodily harm.

In such cases, “severe physical injury” usually refers to injuries that interfere with an individual’s health or comfort. These include broken bones, cuts, lacerations, and head injuries.

Various defences can be raised for charges of assault and assault causing bodily harm. Leaving aside the “consent” defence, which has already been covered, other commonly used defences in assault and battery cases include:

• Self-defence: If a defendant can show that the act was committed in self-defence to protect themselves or others from imminent harm, according to a reasonable belief in the necessity of using force, the charges can be successfully defended.
• Lack of intent: assault causing bodily harm requires intentional physical contact. If we can show that the defendant’s contact was accidental or unintentional, the charges can be defeated.
• Reasonable doubt: all we require is “reasonable doubt” to win a criminal case. As experienced criminal defence lawyers, we scrutinize the evidence in minute detail for information that can introduce this doubt and weaken the prosecution’s case.
• Charter Rights violation: as with all criminal cases, law enforcement must follow correct procedures and observe a suspect’s Charter Rights, such as search and seizure rights and the right to legal counsel. Failure to do so can result in key evidence being inadmissible, often resulting in the collapse of the cases against the defendant.

The penalties for assault vary depending on the severity of the offence and other factors. They are hybrid offences, meaning that they can proceed summarily or by indictment.

A simple assault conviction is usually a summary offence resulting in:

• A maximum penalty of up to six months imprisonment
• A fine of up to $5,000, or
• Both

If prosecuted by indictment, which is much rarer in simple assault cases, the maximum penalty increases to five years imprisonment. Penalties are likely to be elevated if the offender uses a weapon, has committed previous crimes or other aggravating factors apply.

In many simple assault cases, alternative sentencing options, such as probation, fines, or community service may be available to judges.

Assault causing bodily harm attracts much harsher penalties in Canada. A summary offence can result in a maximum penalty of up to 18 months imprisonment while, for indictable offences, the maximum penalty is 10 years in prison.

Aggravated assault is even more serious and is prosecuted as an indictment. This offence causes serious harm or disfigurement or endangers the life of the victim. A conviction can result in a prison sentence of up to 14 years.

Being charged with assault causing bodily harm comes with the real risk of imprisonment.

Depending on the circumstances and your decision to hire a criminal defence lawyer, a robust defence may be available that can help you avoid these and other unwanted consequences.

To understand your legal options if you are charged with assault or battery in Ontario, speak to a criminal defence lawyer in Ottawa during a free consultation.