Assault (also known as ​“common assault”) is:

• the intentional use, or threat of use, of force against another person directly or indirectly,
• without that person’s consent (agreement).

Assault can range from mere touching to violent punching. Assault can include kicking someone or shoving someone out of your way.

Indirect use of force can also be an assault. An example of this is throwing a stone to hit someone. Spitting at someone is also considered assault.

Threatening or trying to use force can be an assault if you could have (or the other person reasonably believes you could have) carried out the threat. An assault can occur even if the victim isn’t hurt. For the full definition of assault, see section 265 of the Criminal Code of Canada.

Depending on the details of what happened and your criminal record, the Crown prosecutor (also called the Crown) can choose to charge you with either a summary offence or indictable offence. You could get a jail sentence for either type of offence.

If the Crown proceeds ​“summarily,” the maximum jail sentence a judge could give you is two years less a day in jail and/​or up to a $5,000 fine or both. But the judge could give you a shorter sentence or a sentence that doesn’t include jail at all (especially if you don’t have a criminal record).

If the Crown proceeds ​“by indictment,” the judge could give you a longer jail sentence depending on the offence.

The first time you’re in court, ask the Crown if they’re proceeding ​“summarily” or ​“by indictment.” The Crown should also say whether they’re asking for a jail sentence. The Crown should also provide you with:

• particulars,
• details of the Crown’s case, and
• an Initial Sentencing Position, which tells you what the Crown would be seeking as a sentence if you were to plead guilty. 

Do not plead guilty before speaking to a lawyer.

If the Crown says they’ll:

• proceed ​“by indictment,”
• ask for a sentence that includes jail, or
• ask for a sentence that will have other serious consequences for you,

immediately ask the judge to adjourn your case so you can get legal help.

If the Crown proceeds ​“by indictment” (or is asking for a jail sentence), you’ll usually have a better chance of getting legal aid — so be sure you understand how the Crown will proceed. Legal Aid BC may change its decision to not cover your case.

You can ask the court to appoint a government-funded lawyer to your case (a Rowbotham application) if:

• you can’t afford a lawyer, were denied legal aid and appealed your denial and were still denied;
• the Crown says that they’ll seek a jail sentence if you’re found guilty, or will seek any other type of sentence that will have serious consequences for you; and
• your case is too complicated for you to handle.

For more information, see If You Can’t Get Legal Aid for Your Criminal Trial.

When you prepare your defence, think about what evidence you can use. Evidence includes witnesses, documents, videos, recordings, or your own personal testimony. You don’t have to personally testify. You should ask a lawyer if it’s a good idea to testify. You have the right to not testify.

Make sure the Crown has given you all the evidence that they’ll use (called the disclosure), such as security videotapes or witness statements. The Crown should also tell you who they’ll call as a witness. You can send them a letter or email asking for this information. (See a sample letter in Representing Yourself in a Criminal Trial.)

Prepare to give truthful and relevant evidence to the court. For more information about the trial process, such as how to use witnesses, prepare questions, and decide whether to testify yourself, see Representing Yourself in a Criminal Trial.

Remember: you have the right to not testify. Speak to a lawyer before you decide whether you should testify.

To defend yourself against a charge of assault, you may be able to use one (or more) of the following five points, if they’re true:

You can use this defence if you touched the other person accidentally. For example, perhaps you were in a crowd and tripped. Or you lost your balance and bumped into a stranger, but it was an accident and you didn’t mean to assault the person. If you didn’t intend to hit someone, you haven’t committed an assault.

You can use this defence if you were assaulted (or threatened) and you used reasonable force to protect yourself. You can also use this defence if you were protecting someone else from an assault.

You can say that you acted in self-defence, if:

• it was reasonable to think that unauthorized or illegal force was being used (or threatened to be used) against you or another person and you were defending or protecting yourself or that other person against that force (or threat of force) in a reasonable way.
• you only intended to defend or protect yourself or the other person. For example, if you continued to use force after the threat ended, you can’t argue that you did that to protect yourself.
• your actions were reasonable in the situation. To decide if this is true, the judge will consider factors including:
   
• the type of force or threat you faced and if you had any other options,
• your history with the other person,
• how the incident started,
• the size and strength of the people involved,
• if your actions were appropriate for the threat,
• whether you knew the other person had the right to use force, and
• if a weapon was used.

For example, it probably wouldn’t be reasonable for you to pull a knife on someone who threatened to punch you. Or, it may not be reasonable to use force if you’re much larger than the other person and could easily have walked away.

You also can’t use this defence if you used force against a police officer (or other person such as a court sheriff acting lawfully within the course of their duties), unless you had a good reason to think the person was acting illegally.

If the other person consented to the conduct which is subject to the allegation of assault, you can use the defence of consent. For example, if two people agree to a fist fight, one person can’t claim to have been assaulted.

You can’t use this defence if you pulled a knife and the other person agreed only to a fist fight. And you can’t use the defence of consent if you injure the other person. This defence also won’t work if you have special training or skill in fighting, and the other person didn’t know that.

If you’re going to say that the other person consented, both of you must have had the same idea about what you were getting into. The agreement wasn’t real if it was based on a trick or lie.

If someone tried to illegally enter, take, damage, or destroy your (or someone else’s) property and you used reasonable force to prevent it, you can argue that you were defending your (or someone else’s) property. However, the force you used to do this must be reasonable and you must be right that the property is legally yours or belongs to the person you’re defending and not to the person trying to take, damage, or destroy it.

For example, if you see a strange man taking your bike from your porch, you can try to stop him or get the bike away from him. But you can only use reasonable force to do so. The judge will look at the facts and decide what was reasonable in the situation.

You can’t use this defence if you didn’t possess the property at the time of the incident; for example, if you go to someone’s house and use force to take back something they’d stolen or borrowed. You also can’t use this defence if the other person legally possessed or was the legal owner of the property, even if by mistake you thought you were.

If the police got evidence of the assault by violating your rights under the Charter of Rights and Freedoms, the judge might not let the Crown use that evidence. And if that happens, and there is no other evidence proving your guilt, you can ask the judge to dismiss the charge against you.

For example, under the Charter, the police must do the following when they arrest you:

• tell you immediately what they’ve arrested you for;
• tell you immediately that you can talk to a lawyer, and let you do so in private before questioning you or taking any samples;
• give you access to a phone to speak to a lawyer privately; and
• tell you that you can get legal help for free.

(Legal Aid BC has lawyers available 24 hours a day to talk over the phone for free to people in police custody. This service is called the Brydges Line.)

Don’t make any statements to the police or anyone else before speaking to a lawyer.

If the police didn’t do all of these things (or others that the Charter requires such as get a search warrant before searching your house or belongings), you can say that they violated your rights. You would then say that the Crown shouldn’t be able to use any statements you made or other evidence that the police got by violating your rights.

However, the judge won’t automatically throw out the evidence in question. You must also show that accepting the evidence will reflect badly on how justice is carried out in Canadian courts.

If you plan to say that your Charter rights were violated, talk to a lawyer before your trial. Using the Charter is complicated and usually requires legal research. You must tell the Crown in advance if you plan to use this type of argument.

At the trial, before you present your defence, the Crown presents its case against you.

The Crown must prove beyond a reasonable doubt that you’re guilty of all the elements that make up the crime of assault. To do this, the Crown presents evidence to the court, using witnesses, documents, videos, or recordings.

If the Crown tries to use evidence that they didn’t tell you about in advance, you can object and ask the judge to dismiss the case or postpone the trial.

You can cross-examine the Crown’s witnesses, but you’ll normally do so only if you disagree with their information. You can ask relevant questions about what the witness saw or knows. You can also ask leading questions, which means making a statement and asking a witness if they agree with it. For example, you could ask ​“Isn’t it true that you couldn’t really see what happened?” For more details about how to cross-examine, see Representing Yourself in a Criminal Trial.

For a judge to find you guilty of assault, the Crown must prove the following things:

The Crown must prove that you’re the person who committed the crime. To do this, the Crown will call witnesses, including police officers, to give evidence. The witnesses will probably describe the person they saw commit the crime. Then the Crown will ask the witnesses to say if that person is in the courtroom.

The evidence, either from the witnesses or from other sources (such as fingerprints, a photograph, a video, or audio recording), must show that you’re the person who committed the crime.

The Crown must prove:

• that the crime happened in BC,
• the date of the crime, and
• the specific location where it happened.

These details are included on the Information. This is the official court form (listing the date, place, and type of offence) that the Crown gives you before the trial. The Crown must still prove these details at the trial.

Usually the Crown calls a witness to give evidence about the date and place of the crime. This witness will likely be the investigating police officer.

The Crown must prove that you intended to use force, and that the assault wasn’t an accident. An attempt to use force or a threatening act or gesture can be an assault, but only if you could have carried out the threat (or caused the victim to reasonably believe that you could have carried out the threat or attempt). Threatening someone who isn’t nearby is still a crime; it just isn’t considered assault.

For example, if you said to someone on the phone, ​“I’ll hit you,” that wouldn’t be assault because you weren’t there and couldn’t have done it. (However, it could be the offence of threatening.) But if you said that to someone in the same room, it could be considered an assault if you had the ability to (or the other person could reasonably believe that you were going to) use force.

The Crown will ask the victim, along with anyone else who was present, to give evidence about the force you used (or tried to use) or the threats you made.

The Crown must prove that you used force (or tried or threatened to do so) against the victim without their consent.

The Crown might argue that the victim consented out of fear, or that you tricked the victim into consenting. In either case, the Crown would argue that there was no real consent.

Don’t plead guilty to the charge of assault without talking to a lawyer.

Sometimes the Crown uses an affidavit to prove some of the points in their case. If the Crown plans to use an affidavit, they should give you a copy of this document before the trial. If you disagree with it, or if you think it should include other information, ask the Crown and the court to make the person who swore the affidavit come to your trial. Then you can question that person about the information that they swear is true. 

After the Crown finishes presenting its case, it’s your turn. You now have your chance to use the points you’ve prepared to use as your defence. You can use your gathered evidence, call witnesses, and, if you want to, give evidence as a witness yourself. You have the right to not testify. Ask a lawyer whether you should or not. See Representing Yourself in a Criminal Trial for more details.

After you finish presenting your defence, you close your case. Tell the judge why you think the Crown didn’t prove that you’re guilty beyond a reasonable doubt. Mention if you think the Crown’s case was weak or inconsistent in any area. This summary is called your submission. See Representing Yourself in a Criminal Trial for more details.

Once you and the Crown finish speaking, the judge decides if you’re guilty or not. If the judge finds you guilty, you’ll get a sentence. The sentence you get depends on the details of the offence and your criminal record. It could be any of the following:

• an absolute discharge (your record won’t show a conviction)
• a conditional discharge (you’ll be regarded as not having been convicted if you meet conditions that the judge sets)
• probation (a ​“suspended sentence” including, for example, community service)
• a fine (up to $5,000)
• a conditional sentence (most often means house arrest, which is like a jail term, but you serve it in the community)
• a jail term (generally up to two years less a day for summary offences; up to five years for an indictable assault; up to 10 years if a weapon or imitation weapon is used or bodily harm is caused; or up to 14 years for aggravated assault. A conviction on an indictable assault against an ​“intimate partner” (including a current or former spouse, common-law partner, or dating partner) carries even higher jail terms.

A judge usually only grants an absolute or conditional discharge when an accused person has pleaded guilty and doesn’t have a previous criminal record.

You get a chance to speak to the judge before they decide your sentence. (This is called speaking to sentence.) The judge will give you a chance to explain why you committed the crime, why you won’t do it again, and whether you need help for any problems you may have that were connected to the crime. Speaking to sentence is important because it gives you a chance to explain your situation to the judge. You can ask for a lower sentence than what the Crown is asking for. Read Speaking to the Judge Before You’re Sentenced before you go to court.

The maximum fine for most summary offences is $5,000. If the judge fines you, you can ask for time to pay. Tell the judge how much you can pay each month. If you think you will run out of the time set for paying your fine, you must come back to Court and get an extension. Do this as soon as possible.

You’ll usually also have to pay a victim surcharge, which is thirty percent of your fine, or $100 for a summary offence, or $200 for an indictable offence. The judge can reduce the amount or drop the surcharge completely if you show that paying it would cause you undue hardship. For example, this could be because you:

• are unemployed,
• are homeless,
• don’t have assets, or
• have significant expenses for your dependant(s).

Being in jail isn’t considered an undue hardship.