The definition of assault in Canada: Charges under Sections 265 and 266 of the Criminal Code

The definition of an assault in Canada is any unconsented to physical contact or any physical action that causes someone to react defensively without any actual physical contact. Just scaring someone could be enough for the police to charge someone with assault and for them to be convicted if the judge or jury agrees with the alleged victim.

A grab of someone’s arm or a push without causing the person to fall, is still enough for the police to charge someone with assault

Nobody has to be badly beat up or injured for the police to press charges for assault. A push, shove, grab etc. is enough. When someone is charged with assault the courts will examine the specifics of why the person charged because the degree of seriousness can vary tremendously. There is a big difference between an open palm slap or a closed fist. Was it to the person’s face/head, genitals, or somewhere else? The seriousness will be judged by both the Crown Attorney and the Judge by these factors.

Additional factors that matter determine the age of the alleged victim. An assault on a child or an elderly person will be viewed as much worse than a young or middle aged adult (which ranges from approximately 18 - 58). Also the mental and physical conditions of the alleged victim will be considered. If the alleged victim has a mental health problem or a physical disability the assault will be viewed as far more serious. In general, the level of vulnerability is a major factor in assault cases. The court may also take other factors such as gender, height, and weight into consideration.

Issues of and the classification of domestic or non-domestic assault

In Ontario, the all police forces (Toronto Police, YRP, Peel, Durham, OPP, etc.) are under policies to charge for assault in most domestic contexts. Domestic in the Canadian criminal justice system means anything involving a wife/husband, boyfriend/girlfriend, past ex bf/gf, spouse, partner, date (no physical connection of sexual activity required) regardless of gender or gender identity. All LGBTQ+ connections are considered the same by the police as heterosexual instances when evaluating whether the case is to be classified as a domestic assault or not. Any person to person connection that is or was in the past entered into with the potential to be anything but platonic will be considered domestic. Domestic cases are handled by special domestic violence (DV) courts with specifically assigned Crown Attorneys (prosecutors).

Domestic cases are taken extremely seriously in Ontario. They often take longer to resolve, or result in trials depending on what the accused has to say about what happened. Just as the police will charge with assault in virtually every instance of an assault allegation, the Crown Attorney will normally not drop the case without clear proof of innocence or substantial counselling from the accused. Sometimes the Crown will drop the charges if they have evidence that the complainant/victim does not want to testify, have their partner not be able to communicate with them, go home, etc. This alleged victim impact from the complainant is sometimes provided in the form of an affidavit to help their spouse.

Despite the COVID pandemic, in 2021 ride sharing services such as Uber, Lift and Taxis are still used and sometimes disputes arise between the driver and the rider. These are sometimes the result of alcohol intoxication, a dispute over a payment, the quality of the service or a myriad of other reasons. If any unwanted physical contact, no matter how minor, is reported to 911 or the police charges for assault will almost always be laid.

How do I know if I was charged with assault or not?

Anyone charged with assault will either receive a Form 9 Appearance Notice (rare in Assault cases), Form 10 Undertaking, or be held for bail and released on a Form 11 Release Order. All persons charged with assault (s. 266) will either be fingerprinted upon arrest at the police station or given a future fingerprint date on the Undertaking or Appearance which must be served personally on them by the police.

There is no evidence of the assault since it is just my word against theirs

Evidence is not just videos, statements, forensics, phone/text records, and confessions. Many cases in Canada are based solely on eyewitness testimony. The eyewitness is often the alleged victim themselves in assault cases. If someone tells the police you assaulted them that is normally enough for them to charge you with assault. The case will then either resolve (withdrawn with or without a peace bond, guilty plea), or it will go to trial. This depends on how the accused (the person charged) decides to proceed. Everyone in Canada charged with assault or any other criminal offence has a right to say they did not do it and take the case to trial.

If the accused wants to go to a trial the Crown will ask or subpoena (legally force) the complainant/alleged victim to testify as to what they say happened. The accused’s lawyer will have the opportunity to cross examine (ask leading and other questions) the complainant. Any other evidence of other witnesses, video/CCTV, audio, forensics, etc. will be presented if allowed into evidence by the judge.

The accused will then be given the opportunity to testify and proclaim their innocence if they want to. They may testify that the accused is a liar and made up the story. People lie for various reasons in assault cases. Common reasons are that they want to sue the accused for money, gain an advantage in a family law case, stay out of trouble themselves after a fight or incident got out of hand, and that they were actually the bad guy/person themselves and the accused simply acted in self defence.

It is extremely easy to be charged with assault in Ontario whether it is domestic or not. Anyone who has a court date for an assault (s. 265 or 266) is being charged and should contact a criminal lawyer immediately as defences may be time sensitive. Exculpatory evidence can become unavailable if the accused does not act immediately such as lost and destroyed including CCTV or other video footage, cell phone media, phone audio recordings etc. There are many things that may exonerate the accused or help them get the assault charges dropped which are often time sensitive. Sometimes exonerating evidence is permanently destroyed before the first court appearance date.

You don't have to jeopardize your future or waste thousands of dollars on excessive legal fees. We provide effective and affordable lawyer representation for those charged with criminal offences throughout Ontario, Canada.

Have a skilled criminal lawyer who focuses on criminal law protect you and your future from the stigma and consequences of a criminal record and conviction.

Are you a lawyer? If you are defending a criminal case and are looking for expert advice regarding possible defences, case strategies, and information release management call us at: 647-228-5969.

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*2024 Results: the percentage of 99% of clients avoiding a criminal record (conviction) stated on this page is based solely on Lawyer Mark Zinck's personal representation of approximately 2000 criminal defence case clients as of the year 2024. Past results are not necessarily an indication of future results.

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