Assault and Domestic Assault

What is Assault?

An assault, is committed, as defined in section 265(1) of the criminal code when:

(a) person without consent of another person, applies force intentionally to that person directly or indirectly,

(b) attempts or threatens by an act or a gesture, to apply force to another person, if they have or causes that other person to believe on reasonable grounds that they have the present ability to affect their purpose or

(c) while openly wearing or carrying a weapon or an imitation where they impede another person.^[1]

This definition illustrates that an assault can range from an actual act or force to a threat of using force against an individual.

When does an Assault Constitute a ‘Domestic Assault’?

An assault becomes a domestic matter when the individuals involved are in an intimate or familial relationship. While the Criminal Code does not explicitly define ‘domestic assault’, the Police service, Crown and Courts take the matter with particular consideration.

There have been several policy changes over the years to reflect the additional resources and support to individuals involved in intimate partner violence. Majority of these changes stem from the Domestic Violence Action Plan Progress Report.^[2] An example of this is the Mandatory Charging Policy, which allows police officers who believe that an individual has assaulted their partner to law a criminal charge even if the person who was assaulted does not want this to happen.^[3]

Once an individual is charged, they will either be held for a Bail hearing, or released on an “Undertaking”. This decision is dependent on the severity of the altercation, and the criminal record of the accused. Regardless of the outcome, there will be conditions in place that do not allow the parties involved to communicate directly, or indirectly.^[4]

The components of intimate partner violence within the legal system outline several programs and safeguards to support the accused and the complainant in these situations. Examples of these components are: Partner Assault Response Programs (PAR), specialized Crown Attorney’s with additional legal training related to domestic violence, specialized evidence gathering protocols for police, and designated Victim Witness Assistance Programs.^[5]

This commitment to domestic violence solidifies the importance and urgency to obtain legal counsel who understands how to approach and represent their clients with attention and proficiency.

Assault with a Weapon or Causing Bodily Harm

Assault with a weapon or causing bodily harm occurs when an individual

• Carries, uses, or threatens to use a weapon or an imitation thereof,
• Causes bodily harm to the compliant, or
• Chokes, suffocates, or strangles the complaint.^[6]

For the purpose of the offence, a “weapon” is any object that is used to cause injury or to incapacitate a person.^[7] Therefore a weapon can be a knife, a bat or a common object such as a book.

Aggravated Assault

Aggravated assault can be found in section 268(1) of the Code and is committed when an individual wounds, maims, disfigures, or endangers the life of the complainant^[8]. Maims is defined as rendering a person less able to defend themselves, whereas disfigures amounts to an injury with lasting consequences, more than impacting the appearance of the person^[9].

Within the conduct elements, or actus reus of aggravated assault the definition of ‘wounds’ has been constantly debated. As a result, a wound is any injury to the “continuity of the skin”.^[10] This explanation is also applicable when discussing ‘serious bodily harm’^[11].

Therefore, it is dependent on the facts of the case and severity of the “wound” to differentiate between assault causing bodily harm and aggravated assault.

^[1] Criminal Code, R.S.C 1985, c C-46, s.265.

^[2] Government of Canada. Programming Responses of Intimate Partner Violence. January 20, 2023. https://www.justice.gc.ca/eng/rp-pr/jr/ipv-vpi/p10.html.

^[3] Ontario Women’s Justice Network. Ontario’s Domestic Violence Court Program. https://owjn.org/2022/09/06/ontarios-domestic-violence-court-program/.

^[4] Ibid.

^[5] Ibid.

^[6] Criminal Code, R.S.C 1985, c C-46, s.267.

^[7] Ibid, s.270.1(2).

^[8] Ibid, s.268.

^[9] R. v. L.(S.R.) 1992 CanLII 2836 (ON CA).

^[10] R. v. Pootlass, 2019 BCCA 96 (CanLII).

^[11] Ibid.