Types of Assault Charges in Canada and What Each One Means

The types of assault charges in Canada range from a shove that leads to a peace bond to an attack that can mean years in a penitentiary. Crown picks the charge based on what’s alleged, the injuries, any weapon and who the complainant is. Julian Van Der Walle, a criminal defence lawyer based in Vernon, BC, defends assault files at every level across the BC Interior. If you’ve been charged, the first step is knowing exactly which section you’re facing, because the defence looks different for each one. If you need representation now, see how Julian works as an assault lawyer in Vernon.

What counts as assault in Canada?

Section 265 of the Criminal Code defines assault more broadly than most people expect. It covers four kinds of conduct:

1. Applying force to someone, directly or indirectly, without their consent, such as a punch, a shove or spitting.
2. Attempting to apply force, like a swing that misses, which is why “attempted assault” is still an assault.
3. Threatening to apply force by an act or gesture, where the other person reasonably believes you can carry it out.
4. Accosting or blocking someone while openly carrying a weapon or an imitation of one.

So a raised fist, a missed swing or a clear push can all end up as an assault file in a BC courtroom. The Criminal Code then sorts that conduct into specific charges based on what happened and how serious the harm was.

When does a fight become an assault charge in BC?

It’s the question most people actually have when they call Julian. A pushing match outside a Vernon bar, an argument at a family barbecue in Kelowna, a confrontation in a parking lot. Any of these can become a criminal file once police are involved, and three things usually decide which way it goes.

Who called the police. When someone calls 911 and names you as the aggressor, police will almost always investigate and may forward a report to Crown counsel, even where injuries are minor.

Whether anyone was hurt. No injury usually means common assault under section 266. A visible injury that’s more than trivial moves it to assault causing bodily harm under section 267. Wounds, broken bones or a threat to life move it toward aggravated assault under section 268.

Whether a weapon was involved. The Criminal Code’s definition of a weapon is wide. A bottle, a chair, a vehicle or a boot can qualify once it’s used or threatened, and the charge becomes assault with a weapon.

Mutual combat isn’t an automatic defence. Even if both people were swinging, Crown can charge one or both. Self-defence under section 34 has to be raised and supported by the evidence.

The types of assault charges in Canada

These are the assault charges Julian sees most often in Okanagan courtrooms, with the maximum penalty for each.

• Common assault, section 266. The base charge. Hybrid, with a maximum of 5 years by indictment or two years less a day summarily.
• Assault with a weapon, section 267(a). Any object used or threatened as a weapon. Maximum 10 years.
• Assault causing bodily harm, section 267(b). An injury that interferes with health or comfort and is more than brief or trivial. Maximum 10 years.
• Aggravated assault, section 268. Wounding, maiming, disfiguring or endangering life. Indictable only, maximum 14 years.
• Unlawfully causing bodily harm, section 269. Bodily harm caused by an unlawful act, even without a direct assault. Maximum 10 years.
• Assaulting a peace officer, section 270. Assault on police or someone helping them. Maximum 5 years.
• Sexual assault, sections 271 to 273. Its own track, from basic sexual assault to aggravated sexual assault with a maximum of life. See jail for sexual assault in Canada.
• Uttering threats, section 264.1. Threats to cause death, bodily harm or property damage. Often laid alongside an assault.

Criminal harassment (section 264) and mischief (section 430) are also commonly added when the facts allow it. Julian reviews every count on the information, because Crown often charges at the highest level the facts might support and the file can come down from there.

Aggravated assault in Canada, section 268

Aggravated assault is the most serious assault charge short of attempted murder. Section 268 defines it as an assault that wounds, maims, disfigures or endangers the life of the complainant. Any one of those is enough. Crown can’t proceed summarily, and the maximum is 14 years.

• Wounds. A break through the full thickness of the skin. A cut needing stitches usually qualifies. Bruising usually doesn’t.
• Maims. An injury that permanently reduces the person’s ability to defend themselves.
• Disfigures. Lasting damage to appearance, not swelling that heals.
• Endangers life. Conduct that put the person’s life at risk, whether or not they nearly died.

The line between section 268 and section 267(b) is often the whole fight in a Vernon or Kelowna file, because it changes the sentencing range and whether the file must go by indictment. Under R v Godin, Crown only has to show it was objectively foreseeable the assault would cause bodily harm, not that the accused meant to wound. But Crown still has to prove the assault itself, and if self-defence or identity is a live issue, the aggravated consequences never come into it. Under R v Jobidon, consent to a fistfight doesn’t cover intentionally causing serious bodily harm.

Is there first, second or third degree assault in Canada?

No. First, second, third and fourth degree assault are categories from American state law. Canada doesn’t use them, and it doesn’t use the words felony or misdemeanor either. Canadian offences are summary, indictable or hybrid, and Crown chooses how a hybrid charge proceeds. The only offence with degrees is murder.

If you’re trying to translate American terms, simple assault is closest to common assault under section 266. Felony or aggravated assault in the US lines up with assault causing bodily harm under section 267(b) or aggravated assault under section 268. What actually matters in BC is the section number on your information and how Crown elected to proceed.

Is there a minimum sentence for assault in Canada?

For most assault charges, no. Common assault, assault with a weapon, assault causing bodily harm and aggravated assault have no mandatory minimum jail sentence, unless a firearm was used in an aggravated assault. That means outcomes like a peace bond, a conditional or absolute discharge, probation or a fine are all possible, especially on a first charge. Sexual assault where the complainant is under 16 is different and does carry minimums.

Domestic assault charges in BC

Domestic files are handled differently from other assault charges. In BC, police send a report to Crown counsel whenever there’s evidence of an assault in a relationship, and Crown decides whether to approve the charge. Even if the complainant later wants it dropped, Crown often goes ahead.

• If you’re arrested, you’ll very likely be released on a condition not to contact the complainant.
• If you live together, that condition can keep you out of your home until it’s varied.
• Under section 718.2(a)(ii), abusing an intimate partner or family member is an aggravating factor at sentencing.

Domestic files often have real weaknesses, such as inconsistent statements, drinking, recantations and injuries on both sides. Julian regularly defends domestic assault charges in BC Provincial Court and has resolved them at every stage, from before charge approval to acquittal at trial.

Penalties for assault charges in Canada

Common assault and uttering threats are usually prosecuted summarily, with a maximum of two years less a day. Julian looks at every file for alternatives such as a peace bond, a conditional discharge or probation, which often beat the risk of losing at trial.

On the more serious charges Crown proceeds by indictment. Common assault by indictment carries up to 5 years, assault with a weapon and assault causing bodily harm up to 10, aggravated assault up to 14, and aggravated sexual assault up to life. Actual sentences almost always fall well below those maximums, but they set the frame Crown argues within.

Defences to assault charges

Self-defence under section 34 is the most common, and the question is whether what you did was reasonable in the circumstances. Defence of property under section 35 and consent in a genuinely mutual fight or contact sport can also apply. Charter applications under sections 8, 9 and 10 come in where police breached your rights during the arrest, search or detention, and they can lead to evidence being excluded.

Every defence starts with the disclosure. Police notes, statements, medical records, video and 911 audio each tell part of the story, and the gaps between them are where Julian Van Der Walle builds the case.

What to do in the first 48 hours after an assault charge

• Don’t talk to police about it. You have the right to silence under section 7 of the Charter. Use it.
• Don’t contact the complainant. Breaching a no-contact condition is a new criminal charge and makes release much harder next time.
• Write down what happened. Write it while it’s fresh, for your lawyer only.
• Get a criminal defence lawyer early. Julian can review disclosure, talk to Crown and start building the defence before your first court date.

If you were held for a bail hearing, read about bail hearings and sureties in BC. Julian defends assault charges as a criminal lawyer in Vernon, as a criminal lawyer in Kelowna, and in Penticton, Salmon Arm, Revelstoke and the Kootenays.

Assault charge questions

What are the types of assault charges in Canada?

Common assault, assault with a weapon, assault causing bodily harm, aggravated assault, unlawfully causing bodily harm, assaulting a peace officer and the three sexual assault offences. Uttering threats is a related charge.

Is assault a felony in Canada?

Canada doesn’t use the word felony. Assault charges are summary, indictable or hybrid. Common assault is hybrid, and aggravated assault is indictable only.

What is the most common assault charge?

Common assault under section 266, usually prosecuted summarily. On a first charge it often ends in a peace bond or discharge.

Can assault charges be dropped in BC?

Crown can stay or withdraw a charge, but the complainant can’t drop it. Crown decides based on the evidence and the public interest. Read what a stay of proceedings means.