For many, the differences between assault, assault causing bodily harm and aggravated assault are fuzzy. Generally, the severity of the offence increases from assault to assault causing bodily harm to aggravated assault. This article will examine the difference between assault, assault causing bodily harm and aggravated assault.
Assault is an intentional act that causes a person to fear that they may suffer physical harm from an individual. What is important to note is that placing another person in fear of bodily harm is already enough to constitute assault. The victim does not have to be harmed to be considered assaulted.
An assault, commonly referred to as a common or simple assault, is a hybrid offence, punishable by a maximum of five years imprisonment, if prosecuted by indictment, or a maximum of six months imprisonment when prosecuted by way of summary conviction.
Section 265(1) of the Criminal Code of Canada defines the offence of assault as such:
(1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or gesture, to apply force to another person, if he has, or causes that other person to believe upon reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
Section 267 of the Criminal Code of Canada defines assault causing bodily harm as a situation in which applying force to another person without consent results in bodily harm.
“Bodily harm” is defined under section 2 of the Criminal Code as hurt or an injury to an individual interfering with the health or comfort of that person that is more than transient or trifling in nature. This means that the interference with the victim’s health or comfort and injury must last more than a very short period of time and is more than a very minor degree which results in a very minor degree of distress.
Whether an injury is considered to constitute bodily harm is a legal question determined on a case-by-case basis.
The most significant distinction between a charge of assault causing bodily harm and aggravated assault lies in the severity of the injuries.
Assault causing bodily harm includes any assault that results in bodily harm to the victim. Some courts in Canada have found bodily harm to include injuries such as cuts, lacerations, lesions, fractured nose or ribs, swelling, and chipped or broken teeth. In other cases, the Courts have ruled that more minor injuries such as a swollen lip or a minor degree of bruising do not constitute bodily harm.
Aggravated assault is the most severe type of assault and can also result in lengthy prison terms if convicted. Section 268 of the Criminal Code of Canada defines aggravated assault as assault that results in wounding, disfiguring or maiming of the victim or putting their life in danger.
So, the severity of the injuries caused by the assault is the distinguishing difference between aggravated and assault causing bodily harm.
Aggravated assault is an assault that results in significant bodily harm, such as wounding, maiming or disfiguring.
“Wounding” is defined as “breaking of the skin”. An assault where one bites through the lip of another individual and cuts completely through the lip to the point where stitches are required may constitute the offence of aggravated assault.
“Maiming” is defined as an injury whereby a person is less able to fight and defend himself. Maiming essentially deprives a person’s bodily function through injury to a limb or organ. A broken forearm, lost eye and facial bone injuries have been found to meet the legal definition of maiming under the offence of aggravated assault.
“Disfiguring” involves a major injury that has some sense of permanency to it. While it does not have to be a permanent injury, it must be an injury that does not necessarily heal in a reasonable period of time and that may last for a significant period of time. Cutting off a finger or ear, or causing a permanent scar by throwing acid on one’s face would certainly constitute the offence of aggravated assault by way of disfiguring.
Section 267 of the Criminal Code states that any one guilty of assault causing bodily harm is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years, or a maximum of 18 months imprisonment if prosecuted by way of summary conviction.
Available dispositions for the offence of assault causing bodily harm include the following: an absolute or conditional discharge, suspended sentence, fine, conditional sentence order, probation and jail.
Assault causing bodily harm is generally more serious than a simple assault based on the fact that the injuries. That being said, sentencing is a case specific analysis that requires details of the offender and circumstances in order to determine an appropriate sentence.
Aggravated assault is a far more serious offence. Section 268(2) of the Criminal Code states that every one who commits an aggravated assault is guilty of an indictable offence and is liable to imprisonment for a term not exceeding 14 years.
While an absolute or conditional discharge is not an available disposition for aggravated assault, sentences for this type of offence may include one or more of the following: a suspended sentence, probation, a conditional sentence order, reformatory and penitentiary jail sentences. Sentencing is a very fact specific analysis that must be assessed on a case-by-case basis.
The circumstances of the offender and the circumstances of the offence will impact the type of sentence one may receive if found guilty of aggravated assault.
Assault related charges can potentially be defended through a claim of self-defence. Section 34 of the Criminal Code states that a person is not guilty of an offence:
Section 34(2) outlines the factors that are taken into consideration in this analysis which include the relevant circumstances of the person, the other parties, and the act, including but not limited to:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
A self-defence argument will rely heavily upon the specific facts and circumstances of the case. A court in Ontario rejected such a defence in a situation where a person was charged with aggravated assault for stabbing a complainant with a broken beer bottle at a bar. While the accused maintained that he was protecting himself from the complaint who was pushing him, the court ultimately rejected this defence. The Court determined that while the accused may have believed that the complainant was using force, the assault with a beer bottle was unreasonable and not done for the purpose of defending himself. The Court decided that in the context of relatively minor violence (pushing), a stabbing with a weapon was disproportionate to the threat of force.
Being charged with assault, assault causing bodily harm or aggravated assault are serious charges that carry severe consequences. If you have been charged with either type of assault, please consult with an experienced criminal defence lawyer immediately.
Just because you have been charged with an offence does not mean that you are guilty. The prosecution must prove all elements of your criminal charge beyond a reasonable doubt.
Farjoud Law has an outstanding track record defending clients charged with all types of criminal offences. We are dedicated to professionalism, client services and passionate advocacy. If you or a loved one have been charged with a criminal offence, do not hesitate to call Farjoud Law at 647-606-6776 to speak directly to a criminal defence lawyer who personally answers all calls 24 hours/day – 7 days/week or fill out our convenient online form.