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.
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.
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.
| Offence | Maximum (Indictable) | Maximum (Summary) | Mandatory Minimum |
|---|---|---|---|
| Common assault (s.266) | 5 years | 2 years less a day | None |
| Assault CBH / weapon (s.267) | 10 years | 2 years less a day | None |
| Aggravated assault (s.268) | 14 years | N/A (straight indictable) | None |
The sentencing range in practice is wide. For a first-time offender convicted of common assault without injury, the typical range begins at a discharge (no criminal record) and extends to a suspended sentence with probation. Jail is reserved for more serious cases or repeat offenders.
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.
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:
- 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.
- 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.
- 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.
- Closing submissions — both sides make legal arguments about whether the elements have been proven beyond a reasonable doubt.
- 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 charges across Ontario, including:
- 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.
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.