Assault Charges in Ontario — Elements, Defences & Sentencing

The Three Levels of Assault in the Criminal Code

The Criminal Code of Canada creates three distinct assault offences, each with escalating severity and penalties. Understanding which charge you are facing is the starting point for any defence strategy.

Common Assault — Section 266

Common assault (also called simple assault) is the most frequently laid assault charge. Under section 265 of the Criminal Code, a person commits an assault when they intentionally apply force to another person without that person’s consent, or attempt or threaten to apply force where they have the present ability to carry out the threat.

No injury is required. A push, a slap, spitting on someone, or grabbing someone’s arm can all constitute common assault. The offence is hybrid — the Crown can proceed summarily (maximum 2 years less a day imprisonment) or by indictment (maximum 5 years imprisonment). There is no mandatory minimum sentence.

Assault with a Weapon or Causing Bodily Harm — Section 267

Section 267 applies when the assault involves a weapon (any object used to strike or threaten, including household items like a bottle or belt) or causes bodily harm to the complainant. The Criminal Code defines bodily harm as any hurt or injury that interferes with health or comfort and is more than merely transient or trifling.

This is also a hybrid offence. When proceeded with by indictment, the maximum sentence is 10 years imprisonment. There is no mandatory minimum.

Aggravated Assault — Section 268

Aggravated assault is the most serious assault charge short of attempted murder. It applies when the accused wounds, maims, disfigures, or endangers the life of the complainant. Broken bones, deep lacerations requiring stitches, permanent scarring, and injuries causing hospitalization can all constitute aggravated assault.

This is a straight indictable offence carrying a maximum of 14 years imprisonment. The seriousness of this charge means the accused faces the possibility of significant jail time even as a first offender, depending on the facts.

Assault vs Aggravated Assault: Key Differences

The distinction between the three tiers of assault is one of the most misunderstood areas of criminal law. The charge is determined by the outcome of the assault, not the intent behind it. A single punch that causes no injury is common assault; the same punch that breaks a jaw may be aggravated assault. The following table highlights the critical differences:

A critical point: the Crown decides which charge to lay, but can also agree to resolve a more serious charge by accepting a guilty plea to a lesser offence. For example, an aggravated assault charge may be resolved as assault causing bodily harm if the defence can demonstrate weaknesses in the evidence. This is a common part of resolution discussions in Toronto’s criminal courts. For a detailed analysis of aggravated assault specifically, see our guide on aggravated assault charges in Ontario.

What the Crown Must Prove

To secure a conviction for assault, the Crown must prove each element of the offence beyond a reasonable doubt. Failure to prove any single element results in an acquittal. The essential elements are:

• Identity — the accused is the person who committed the act.
• Intentional application of force — the contact was deliberate, not accidental. Bumping into someone on a crowded subway is not assault.
• Absence of consent — the complainant did not agree to the physical contact.
• No lawful justification — the accused was not acting in self-defence or defence of another person.

For section 267, the Crown must additionally prove that the assault caused bodily harm or involved a weapon. For section 268, the Crown must prove the complainant was wounded, maimed, disfigured, or their life was endangered.

In many assault cases, the primary evidence is the complainant’s testimony. When there are no independent witnesses and no surveillance footage, the case comes down to credibility. This is where skilled cross-examination can make the difference between a conviction and an acquittal.

Defences to Assault Charges

Self-Defence (Section 34)

Self-defence is the most commonly raised defence in assault cases. Under section 34 of the Criminal Code, a person is not guilty of an offence if they believed on reasonable grounds that force was being used or threatened against them (or another person), they acted for the purpose of defending themselves, and their response was reasonable in the circumstances.

The reasonableness of the response is assessed considering all the circumstances: the nature and imminence of the threat, whether weapons were involved, the relative size and strength of the parties, whether there were other options available, and the proportionality of the force used. Self-defence is a complete defence — if successful, it results in a full acquittal.

Section 34(2) of the Criminal Code sets out a non-exhaustive list of factors the court must weigh when assessing reasonableness:

• The nature of the force or threat
• The extent to which the use of force was imminent and whether there were other means available to respond
• The person’s role in the incident
• Whether any party to the incident used or threatened to use a weapon
• The size, age, gender, and physical capabilities of the parties
• The nature, duration, and history of any relationship between the parties, including any prior use of force or threats
• The proportionality of the response to the nature and extent of the threat

Section 34 also applies to the defence of others. A person who uses force to protect a third party from an assault can rely on self-defence, provided their belief in the threat was reasonable and their response was proportionate. There is no duty to retreat under Canadian law — the failure to retreat is simply one factor the court considers alongside all the circumstances. The Supreme Court of Canada’s decision in R v. Khill (2021) confirmed that the reasonableness of a self-defence response must be assessed from the perspective of a reasonable person in the accused’s circumstances, and that the accused’s subjective perception of the threat is a relevant — though not determinative — factor.

Consent

Consent is a defence in limited circumstances. If two people agree to a fight (a mutual combat situation), neither can generally claim to be the victim of an assault — though consent has limits. Under section 265(3) and the Supreme Court of Canada’s decision in R v. Jobidon, consent is vitiated (negated) where the accused intentionally causes serious bodily harm. You can consent to a boxing match; you cannot consent to being stabbed. In contact sports, implied consent covers contact within the rules of the game.

Lack of Intent

Assault requires intentional application of force. If the contact was accidental — tripping and falling into someone, reflexive movement, or incidental contact in a crowd — it is not an assault. The defence does not need to prove the contact was accidental; the Crown must prove it was intentional.

Identification

In cases involving bar fights, group altercations, or incidents without clear surveillance footage, the Crown may have difficulty proving that the accused is the person who committed the assault. Misidentification by witnesses — particularly in chaotic, fast-moving situations — is a well-documented problem in the criminal justice system.

Sentencing Ranges

Sentencing for assault depends on the level of the offence, the severity of the injury (if any), the accused’s criminal record, and the aggravating and mitigating factors present in the case.

The sentencing range in practice is wide. The following table summarizes typical sentencing outcomes by offence level for first-time offenders:

Aggravating factors that increase a sentence include a prior criminal record (particularly for violence), use of a weapon, a domestic relationship with the complainant, vulnerability of the complainant (age, disability), and premeditation. Mitigating factors include provocation, the absence of a criminal record, expressions of remorse, completion of rehabilitative programming such as anger management, and a guilty plea.

First-Time Offender Outcomes

Having no criminal record is the single most significant mitigating factor at sentencing. For first-time offenders facing assault charges, several outcomes avoid a criminal record entirely:

Peace Bond (Section 810)

A peace bond is the most common resolution for first-time assault charges where the evidence is not overwhelming. The accused enters a recognizance to keep the peace for up to 12 months, the charges are withdrawn, and no criminal record results. Peace bonds require the consent of the Crown and are most commonly used for common assault involving minor force or disputed facts.

Diversion Programs

Some Ontario courthouses offer diversion for eligible first-time offenders. The accused accepts a degree of responsibility, completes programming (such as anger management counselling or community service), and the charges are withdrawn upon completion. Availability varies by courthouse and Crown policy.

Absolute or Conditional Discharge (Section 730)

If the case results in a finding of guilt, first-time offenders may receive a discharge. An absolute discharge is removed from the CPIC database after 1 year; a conditional discharge (which includes probation) is removed after 3 years. A discharge is not available where the offence carries a maximum of 14 years or more — meaning aggravated assault (section 268) does not qualify.

Can Assault Charges Be Dropped?

Assault charges in Ontario can be withdrawn, but only by the Crown Attorney — not by the complainant. This is one of the most common misunderstandings in criminal law: the person who was allegedly assaulted cannot “drop” the charges. Once police lay a charge, the prosecution is conducted by the Crown on behalf of the state.

That said, charges are withdrawn regularly. The most common paths to withdrawal are:

• Evidence problems — If the Crown cannot prove the charge beyond a reasonable doubt (e.g., no independent witnesses, inconsistent statements, or missing surveillance footage), the charge may be withdrawn before trial.
• Peace bond under section 810 — The accused enters a recognizance to keep the peace for up to 12 months, the charges are withdrawn, and no criminal record results. This is the most common resolution for first-time common assault charges.
• Diversion programs — Where available, the accused completes programming (counselling, community service) and the charges are withdrawn upon completion.
• Charter violations — If the police violated the accused’s constitutional rights during the arrest or investigation, evidence may be excluded and the charge withdrawn.

In domestic assault cases, the Crown follows policies that strongly favour proceeding with charges regardless of the complainant’s wishes, making withdrawals harder to achieve but not impossible. For a detailed discussion, see our guide on whether domestic assault charges can be dropped in Ontario.

What Happens After Being Charged with Assault

The process from arrest to resolution follows a predictable sequence in Ontario’s criminal courts. Understanding each stage helps you make informed decisions about your case.

1. Arrest and release — For most common assault charges, police release you at the scene or from the station with an undertaking or appearance notice setting conditions and a first court date. For more serious charges, or where there is a risk to the complainant (particularly in domestic situations), you may be held for a bail hearing within 24 hours.
2. Retain a lawyer — Before your first court appearance, retain a criminal defence lawyer or speak with duty counsel. A lawyer can appear on your behalf for most early appearances, review disclosure, and begin building your defence immediately.
3. First appearance and disclosure — At your first court date, no plea is entered. The Crown provides disclosure — all the evidence it intends to rely on, including witness statements, police notes, photographs, and any surveillance footage.
4. Crown pre-trial — Your lawyer meets with the assigned Crown attorney to discuss the case. Many assault charges are resolved at this stage through a withdrawal (where evidence is weak), a peace bond under section 810, or entry into a diversion program.
5. Judicial pre-trial — If no resolution is reached, a judge meets with both sides to narrow the issues and explore settlement. The judge can provide a sentencing indication — a preliminary view of the likely sentence if the accused pleads guilty — which helps both sides assess their positions.
6. Trial — Most assault trials in the Ontario Court of Justice are heard by a judge alone and take 1 to 3 days. For aggravated assault (section 268), the accused can elect trial by judge and jury in the Superior Court.
7. Verdict and sentencing — The judge delivers a verdict of guilty or not guilty. If convicted, sentencing may follow immediately or be adjourned for a pre-sentence report.

The timeline from charge to resolution is typically 6 to 12 months for common assault. More serious charges take longer. Under the R v. Jordan framework, the presumptive ceiling for trial completion in provincial court is 18 months from the laying of charges.

The Trial Process

If an assault case cannot be resolved through a withdrawal, peace bond, or diversion, it proceeds to trial. In Ontario, most assault trials in the Ontario Court of Justice are heard by a judge alone. For indictable offences with a maximum of 14 years (aggravated assault), the accused has the right to elect trial by judge and jury in the Superior Court of Justice.

The trial process typically involves:

1. Crown’s case — the Crown calls its witnesses (the complainant, police officers, any civilian witnesses) and presents its evidence. The defence cross-examines each witness.
2. Defence motion (optional) — at the close of the Crown’s case, the defence may bring a directed verdict or no-evidence motion if the Crown has failed to establish a prima facie case.
3. Defence evidence (optional) — the accused is not required to testify or call evidence. The right to silence is absolute. However, in some cases, calling defence witnesses or having the accused testify strengthens the defence.
4. Closing submissions — both sides make legal arguments about whether the elements have been proven beyond a reasonable doubt.
5. Verdict — the judge (or jury) delivers a verdict of guilty or not guilty.

Under the R v. Jordan framework, the presumptive ceiling for trial completion in provincial court is 18 months from the laying of charges. If the Crown exceeds this timeline (net of defence delay), the accused can bring a section 11(b) Charter application to have the charges stayed for unreasonable delay.

Representative Results

RH Criminal Defence has defended clients facing assault and violent offence charges at courthouses across Ontario, including as a criminal lawyer in Toronto:

• R v. D.J. — Client charged with assault was acquitted after a trial in Scarborough. The assault was alleged to be on a cab driver. Due to credibility issues with respect to the main witness and the failure of the police to properly identify the client, the charge was dismissed by the presiding judge.
• R v. N.L. — Client charged with assault with a weapon, threatening death and possession of a weapon for a dangerous purpose was acquitted after a two day trial at 1000 Finch Court in Toronto.
• R v. A.J. — Client charged with aggravated assault was discharged following a seven-day preliminary inquiry at 1000 Finch Court. The judge found that there was not enough evidence that the accused was involved in the assault, rather than merely present at the scene. The charge was dismissed.
• R v. H.F. — Client charged with aggravated assault had charge withdrawn at College Park in Toronto. The Crown was only able to establish the accused’s presence at the scene of a stabbing, but not that he was a party to the offence.
• R v. K.N. — Client charged with assault causing bodily harm, forcible confinement, and fail to comply with undertaking had all charges withdrawn in Newmarket Court on the day of trial. The defence obtained information that the complainant had been charged with a serious assault in a separate domestic incident with a different person, and the Crown chose to withdraw rather than proceed.
• R v. S.M. — Client charged with assault peace officer had charges withdrawn in Brampton Court. The defence had access to independent witnesses that contradicted the police officer’s account of the encounter, and the Crown chose not to proceed on the day of trial.
• R v. C.W. — Client charged with assault at a house party had charge withdrawn in Oshawa. The Crown had difficulty proving the client’s involvement in the assault and decided to withdraw the charge on the day of trial.

Every case is different and the above examples are not indicative of what will happen in your case. Past results do not guarantee future outcomes.