INTRODUCTION AND BRIEF DESCRIPTIONA review of section 266 of the Criminal Code of Canada which sets out the offence of assault simpliciter
SECTION WORDING266 Every one who commits an assault is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or (b) an offence punishable on summary conviction.
EXPLANATIONSection 266 sets out the offence of assault. This is the lowest form of basic assault often referred to as "assault simpliciter". Other variants of assault are found at sections 267(a), 267(b) and 268, which set out the offences of assault with a weapon, causing bodily harm, and aggravated assault respectively. The term "assault" is defined earlier in the Code at section 265. This is one of the most commonly charged offences, and is interpreted broadly. Simply put, an assault is any unwanted application of force (or even threat thereof) without consent. This can include strikes, pushes, punches or kicks. However, it also includes grabbing, holding, spitting or more minor forms of contact such as grabbing an item from another person's hand (indirect assault).
COMMENTARYThe Criminal Code does not distinguish between domestic and non-domestic assault. However, typically, where an offender is charged with an assault simpliciter pursuant to section 266, and it is in the context of a domestic relationship, it is considered to be an aggravating factor on sentence on account of section 718.2(a)(ii). That section requires the Court to consider whether there is any "evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner" in determining sentence.
STRATEGYOn account of the sheer volume of assault charges, both domestic and non-domestic, that flow through the criminal justice system, there has been a lot of caselaw generated over the years. Defences include self-defence, defence of property, defence of another person. In some instances the voluntariness of the physical application of force may be challenged. Additionally, the common law allows for the defence of mutual fight, so long as no bodily harm resulted. A higher threshold of assault is available for sporting activities, depending on the nature of the sport and its typical rules. Reference should be had to the current provisions related to self defence as found in sections 27 and 34 of the Code.
QUESTIONS AND ANSWERS| Q. | | If I am convicted of assault will I have a criminal record?
| | A. | | The punishment for assault simpliciter ranges from an absolute discharge to penitentiary time. Typically, a first time offender with a low level assault will be given the opportunity to enroll in an anger management court, upon completion of which, the Court would be in the position to impose a discharge, thus sparing the accused a criminal conviction. However, each case is unique and adjudicated on its own merits. Some jurisdictions as for "short sharp" jail sentences even for first time offenders.
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CATEGORIES| offences of violence |
| weapons offences |
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