What is assault and battery?

What is assault and battery?

Anyone who watches American newscasts or TV dramas dealing with legal issues will have heard of the charge “assault and battery.” In American law, battery is commonly defined as any unlawful and or unwanted touching of a person by an aggressor.

That term is not used in Canada. The most comparable charge we have is assault causing bodily harm. Section 267 of the Criminal Code gives three examples of when this charge can be laid:

• when someone carries, uses or threatens to use a weapon or an imitation weapon;
• if bodily harm was caused to the complainant; or
• if someone was choked, suffocated or strangled.

What is bodily harm in Canada?

Bodily harm is an injury that affects someone’s physical health and well-being. It cannot just be a transitory injury or pain that quickly subsides. In most cases, the complainant may have to seek medical care or an absence from work to heal from such an injury.

How are assault and assault causing bodily harm different?

Assault is the intentional act of applying force to another person without their consent. Section 265 of the Code states a person commits an assault when they:

• intentionally apply force to another person or another person without their consent, directly or indirectly;
• threaten, by an act or a gesture, to apply force to another person, even if no physical contact occurs; and
• openly wear or carry a weapon or an imitation weapon.

In contrast, there is always some degree of physical contact with assault causing bodily harm. Examples of assault causing bodily harm include:

• A physical altercation that leads to harm such as broken bones or injuries requiring surgery or extending medical treatment.
• An assault that causes severe cuts and lacerations that lead to substantial bleeding necessitating stitches or other medical intervention.
• A beating that leaves the victim with a concussion or injuries that have a long-lasting impact on their cognitive or physical functions.
• Any incident where the victim's injuries are serious enough to cause disability, disfigurement or long-term impairment.

Generally speaking, the severity of the injuries and the circumstances surrounding the assault will determine if the charge of assault is upgraded to assault causing bodily harm.

How is consent a factor in either type of assault?

Consent refers to a person's voluntary and informed agreement to engage in a particular activity, including physical contact. For an action not to be considered assault, it generally requires the informed and voluntary consent of all parties involved.

For example, hockey players voluntarily accept they are playing a game where physical contact is expected. If two players drop their gloves and start to punch each other, neither will be charged with assault as they both consented to the skirmish. But if one player is knocked to the ice and the other player continues to land punches, he could be charged with assault since the consent to fight is considered to be withdrawn once one participant is unable to defend himself.

Key principles related to consent in the context of assault include:

• Voluntariness: Consent must be given freely, without coercion, threats, or duress. It should not be the result of intimidation, force, or any form of pressure.
• Capacity: A person must have the legal capacity to provide consent, meaning they must be of sound mind and at an age where they can understand the nature and consequences of their actions.
• Informed: Consent must be informed, meaning that the person giving consent understands what they are agreeing to. They should be aware of the nature of the activity, any potential risks or consequences and their right to withdraw consent at any time.
• Ongoing: Consent can be withdrawn at any time. Everyone has the right to change their mind and withdraw consent and all parties involved should respect that decision.

Consent cannot be given for any assault causing bodily harm.

What are defences to assault and assault causing bodily harm?

Any defence depends on the circumstances that led to the attack, though there are some commonly recognized defences.

Self-defence: People can act in self-defence to protect themselves or others from imminent harm if the force used was reasonable in the circumstance.

Lack of intent: There must always be physical contact for a charge of assault causing bodily harm to be laid. If that contact was accidental or unintentional, it may serve as a defence against the charge.

Charter rights violation: Every citizen is protected by the rights established by the Canadian Charter of Rights and Freedoms.

Those rights include the denial of the right to legal counsel. Any violation of those rights may potentially lead to the dismissal of charges or the exclusion of crucial evidence.

What are the penalties for assault causing bodily harm?

Penalties for assault causing bodily harm are more severe than for simple assault. If the charge is treated as an indictable offence, the maximum sentence is no more than 10 years in prison, with lighter sentences given to charges treated as summary convictions.

Everyone deserves a fair trial and can only be convicted of a crime if the Crown can prove guilt beyond a reasonable doubt. Contact me for a free consultation if you have been charged with assault or assault causing bodily harm so we can discuss what is the best way to proceed.