What are defences to an assault charge?
Assault is the intentional application of force against another person without their consent. It can also be a threat, by act or gesture, to apply force against another person. Lastly, assault can be if you are openly carrying a weapon and approach someone aggressively, obstruct them or beg from them.
There are a number of defences to assault and they are each based on the specific facts of the case. The most important aspect of any defence is to have a skilled and experienced trial lawyer in your corner. Cory Wilson has successfully represented countless individuals charged with assault.
In order to rely on the self-defense provisions found in section 34 of the Criminal Code, an accused must satisfy the judge of the following criteria:
- They believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
- The act the constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that us or threat of force; and
- The act committed is reasonable in the circumstances.
In considering whether the act committed was reasonable, a judge will look at the non-exhaustive list of factors found in section 34(2) of the Criminal Code:
- The nature of the force or threat;
- Was the use of force imminent;
- The person’s role in the incident;
- Whether any party used or threatened to use a weapon;
- The size, age and gender of the parties involved;
- The nature, history and duration of the relationship;
In order to prove an assault beyond a reasonable doubt, the prosecutor must prove that the force applied was without the consent of the other person. A defence to the charge of assault arises if the application of force was consensual. This scenario is generally found in a fist fight between two people. If both people involved consented to the fight, neither party can be convicted of assault. If however, bodily harm occurred, it is irrelevant if the fight was consensual because a person cannot consent to bodily harm.
Reflex actions are involuntary physical reactions to an external source. In order to be convicted of assault, the accused person must commit the physical act and have done it intentionally. An involuntary act such as a reflexive action cannot rise to the level of a criminal offence because intent is a necessary ingredient of assault.
Section 43 of the Criminal Code provides that every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable in the circumstances.
This defence is most commonly invoked in situations where a parent applies force to their child as a corrective measure. Generally, these cases involve spanking and are very limited in their application. These use of a weapon is strictly prohibited and will vitiate any defence under this section.