The offence: an assault is an unwelcome interference with a person. It is a form of violence.

Question: How does the law define an assault where the victim is hurt?

Answer: This definition sets out the elements of the offence.

Assault causing bodily harm occurs when...

• a person intentionally uses force of any sort against another person
• this is done without the victim's consent or agreement
• the victim is injured and the injury is something more serious and long-term than a scratch or small bruise.
  Source: sections 265 and 267 of the Criminal Code

Question: What does the word intentionally mean?

Answer: This is what two courts have said about intention:

• A reflex action lacks the necessary intent to constitute an assault.
  Case source: R. v. Wolfe (1974), 20 C.C.C. (2d) 382 (Ontario Court of Appeal)
• An accused does not have to intend to cause bodily harm. What is necessary is that a reasonable person would be able to predict that his or her actions posed a risk of bodily harm.
  Case source: R. v. DeSousa (1992), 76 C.C.C. (3d) 124 (Supreme Court of Canada)

Question: How does the court decide if a victim has given consent?

Answer: This is what two courts have said about consent.

• A person cannot consent to being injured in a serious way.
  Case source: Jobidon v. The Queen (1991), 6 C.C.C. (3d) 454 (Supreme Court of Canada)
• If the victim provokes the assault, the courts have said that the victim consented to the assault.
  Case source: R. v. Oppal (1984), 43 C.R. (3d) 365 (B.C. Provincial Court)

Note: All elements of the offence need to be proved by the Crown in order to convict a person of this offence. Those elements that are in doubt, in question, become legal issues. For example, whether or not the victim "consented" is often a legal issue in cases of assault.

The defence: people have the right to defend themselves from attack.

Question: What does the law say about acting in self-defence?

Answer: Here is how the defence is defined:

Self-defence occurs when...

• a person attacks you when you have done nothing to provoke or cause the attack
  Source: section 34 of the Criminal Code
• you defend yourself but only with as much force as is necessary.
  Source: section 34 of the Criminal Code

Question: What kinds of behaviour could be considered as provocation for an attack?

Answer: Provocation includes provocation by blows, words or gestures.
Source: section 36 of the Criminal Code

Question: How can a judge know how much force was necessary in the circumstances?

Answer: This is a difficult decision to make and it cannot be made without looking at all the facts. However the following interpretation by a court suggests the court does not demand a completely rational reaction:

• A person under attack is not expected to stop to weigh or measure his or her reactions perfectly or precisely.
  Case source: R. v. Baxter (1975), 33 C.R.N.S. 22

Note: The legal defence of self-defence is not available unless these conditions are met. An accused person who is successful in arguing self-defence will be acquitted of the charge. Another defence, always open to an accused person, is that the elements of the offence have not been proven. If there is a reasonable doubt about the legal issues in dispute, the accused person should be acquitted.

*****The actual wording of the law has been simplified in this handout.