By: William Jaksa Criminal Litigation November 5, 2023

WHAT IS AGGRAVATED ASSAULT?

Elements that Aggravated Assault Requires

Aggravated Assault Requires:

The intentional application of force – it must be committed purposefully for any assault
Directly or Indirectly – the may be applied directly or through another means indirectly
To a Person – the intended target must be a person, it cannot be done accidentally
Without Consent – a person can consent to a fight, or common assault, but not aggravated
And that force must either wound, main, disfigure or endangers the life

The aggravated assault Canada definition is found in section 268(1) of the Criminal Code of Canada and carries a maximum penalty of 14 years.

Aggravated Assault Meaning

What distinguishes an aggravated assault from another form of assault is that the nature of the injuries to the complainant are of such a degree that it wounds, maims, disfigures or endangers that persons life. The injuries are more than minor and more than serious bodily harm. These injuries will significant enough that they marked the complainant for some time, or that the injuries threaten the life of the complainant. Examples of injuries of a wound, maiming or disfigurement under the aggravated assault meaning include:

a broken jaw, broken orbital bone, broken nose
any significant breaking or cutting of skin

Wounding

Wound generally refers to when there is a breaking or cutting open of a person’s skin that causes bleeding that would require medical attention. Small scrapes and scratches don’t rise to the level of aggravated assault. It usually requires some permanent damage to meet the definition.

Maiming

Some criminal law cases have defined maiming to refer to an injury that is so significant it hurts a person to such a degree that they are unable to function or less able to fight. It includes injuries such as broken bones, loss of vision, mobility and alike.

Disfigurement

When criminal courts discuss disfigurement they have defined it to mean injuries that are more than a temporary marring of a persons appearance. While sometimes this may include bruising and other times will not. It usually means that there will be a permanent scarring, permanent disability, the loss of function of a arm, leg or hand.

Three Levels of Assault in Canada

The criminal code enumerates three different levels of assaults in Canada, excluding sexual assault. These levels are: simple assault assault causing bodily harm, and aggravated assault. Simple assault, under section 265, is the least serious, then assault causing bodily harm more serious and aggravated assault being the most serious. Both simple assault and assault causing bodily harm are hybrid offences and the Crown prosecutor can choose to proceed by summary conviction or indictment depending on how serious the offence is, but aggravated assault is a straight indictable offence.

What Must Crown Prove For a Conviction

As for almost all criminal offences in Canada the Crown must prove the date, time and jurisdiction as to where the offence took place. These are usually fairly easy for the prosecution to establish. Then an important element is that the accused was the person that committed the crime or was a party to the offence. That usually means establishing the accused persons identity and placing them at the scene of the offence. Once these elements have been proven or established then the Crown must prove each element of the offence beyond a reasonable doubt.

For an aggravated assault the Crown must prove that the accused applied force to the victim without their consent. That the force was applied either directly, such as a punch, or indirectly like an object thrown at the victim. That the application of force was intentional, in that the accused meant the act committed and meant that to be an assault. Finally, that the violence used was predictable to cause the aggravated injuries that resulted in the wounding, maiming or disfigurement of the victim.

The mens rea for aggravated assault is the same for common assault with the addition that there was objective foresight that the assaultive act carried the risk of causing bodily harm. The Crown does not need to prove that the offender wished to or intended to cause the specific injuries just that those injuries were reasonably predictable. The court when determining the intent will apply the ‘reasonable person’ test. That whether a reasonable person would realize that the actions, the assault, would cause the risk of some harm.

Assault Cause Bodily Harm vs. Aggravated Assault

What is the difference between assault causing bodily harm and aggravated assault. They both have the same required assault elements in that force must be applied intentional, either directly or indirectly, without consent against another person. They both have the additional required element that there must be a serious injury. The main difference between assault causing bodily harm and aggravated assault is the severity of the injuries.

Assault Causing Bodily Harm found is under section 267(b) of the Criminal Code. For an assault to be considered meeting the bodily harm threshold the injuries must have interfered with the victim’s health or comfort and be more than merely transient or trifling in nature. The injury must last longer than a very short period of time and be more than minor in nature. Bodily harm can also include a psychological injury. Bodily harm is a low threshold to meet in comparison to an aggravated assault.

Another difference is that aggravated assault is a straight indictable offence, while assault cause bodily harm is a hybrid and the Crown can choose how to prosecute the offence.

For an more detailed explanation of the Summary Offences vs Indictable Offences please refer to the article: Differences Between Summary vs Indictable and Hybrid Offences.

What does Transient & Trifling mean?

For and injury to raise to level of bodily harm it must more that transient, meaning that it lasts more than just a few days. That it is not permanent or even temporary. While trifling means that the injuries were of little value, petty or insignificant. An injury must be both transient and trifling to be excluded from being defined as bodily harm. The courts have ruled that it is not necessary to call medical evidence to prove bodily harm. The victim’s evidence is sufficient to establish evidence of the injuries.
In most instances bruising will not be considered bodily harm. More substantial bruising that lasted more than a week or that may be present for an extended time on the face or neck area can be considered bodily harm and in some instances even aggravating. But, these are considered on a case by case basis.
Examples of bodily harm include such injuries as broken noses, scrapes and lacerations that are more than just minor. Sore throats, neck and other soreness that lasts for more than a transient amount of time. Bruising that is on the face, neck or other parts of the body that last for more than a few days or a week (no fixed amount of time).
There is no legal requirement that a specific injury be present for a certain period of time to be considered bodily harm. The injury suffered by the victim may only last a short period of time and still not be considered trifling.

Common Defences for Assault and Aggravated Assault

There are a number of substantive defences to assaults in general. They must have an Air of Reality to them at trial to be successful.

Consent

Consent is a defence only to common assault as a person cannot consent to bodily harm. However, if the bodily harm was not intended then consent may still be an available defence, see the Supreme Court of Canada case of R. v. Paice (2005).

Self Defence

Self defence allows a person to use reasonable force to defend themselves. There are certain circumstances in which all people have the right to respond to force, or the threats of force, with force to stop an attack. An accused must be able to show that the follow criteria were present at the time:

They reasonably believed that force was being used or a threat of force being made against them or someone else;
That the actus reus of the offence the accused is charged with was carried out with the purpose of defending themselves or someone else; and,
That the act committed by the accused was reasonable in the circumstance.

An accused person is never required to prove that there was no reasonable way of withdrawing or retreating from the situation.

Defence of Property

The defence of property is another circumstance in which force may used and is a defence to a type of assault. This defence is codified under section 35(1) of the criminal code. A person must have reasonable grounds to use the force, the grounds must be reasonable in the circumstances.

This defence is often available for property owners that are trying to remove people from their property.

Defence of Another Person

The law also allows the application of force to defend others. The force used to stop the attack on another must be reasonable in the circumstances. The accused must be able to show the same criteria as with self-defence was present at the time.

Reflexive Action

The defence of reflexive action is based on a lack of voluntary conduct, no actus reus, may be raised in answer to criminal charges. The reflex action must an involuntary response to which that accused had no control over, and of course there must be an air of reality to the defence.

Sentencing Considerations

Sentencing for most offences in Canadian criminal justice system is highly individualized in practice. When handling assault charges Judges must first determine the appropriate sentencing principles that apply and the appropriate sentencing ranges. Once those are considered the Judge starts the process of weighing and assessing the various aggravating and mitigating factors that were present in the case. Also, much of the offender’s personal circumstances and prospects for rehabilitation are considered when crafting an appropriate sentence.

Some of the aggravating and mitigating factors that may apply specifically in an aggravated assault case include, but certainly not limited to the following:

The offender has a criminal record that contains entries for violence
The offender has a criminal record
The nature and severity of the injuries suffered
That the injuries are permanent and life altering
Whether it was an unprovoked attack or the attack was gratuitous in nature
Reasons for the attack or the assault
If the violence was used in the commission of other criminal offences – like a sexual assault

Unfortunately in most cases when there is a conviction for aggravated assault prison time will likely follow.

Criminal Code Sentencing for Aggravated Assault

The Criminal Code outlines that not all sentencing dispositions are available for this offence. A person found guilty of aggravated assault cannot receive a discharge. But a convicted person can receive a suspended sentence, fine and probation. There is no minimum jail sentence required upon conviction of aggravated assault.

Also since this is a straight indictable offence and since it carries a maximum penalty of 14 years in prison the accused is entitled to a preliminary hearing if they wish.

While the maximum penalty is 14 years in prison that maximum sentence increases to a life sentence IF the aggravated assault involved intimate partner violence and the accused already has a conviction for domestic violence.

Sentencing Guidelines in Ontario

In Ontario, Justice Code’s decision in the case of R. v. Tourville, 2011 ONSC 1677 (CanLII), provides sentencing guidelines for those convicted of aggravated assault. Justice Code organized distinct sentencing ranges to bring some order to the wide range of sentences that case law discloses.

The low range which Justice Code considered to be “exceptional” are sentences that are less than 18 months. These cases will have serious bodily harm, but likely not life altering, and there will usually be a high degree of mitigation which will reduce the amount of jail required.

Then there is the mid-range where sentences range between eighteen months and two years less a day. These cases generally involve first offenders and generally contain some elements suggestive of consent fights but where the accused has resorted to excessive force.

The high-end range is generally between four to six years. These cases generally involve recidivists, with serious prior criminal records, or they involve “unprovoked” or “premeditated” assaults with no suggestion of any elements of consent or self-defence.

Charged With Assault and Need Legal Advice

If you are charged with aggravated assault Canada, it is important to have an experienced criminal defence lawyer who understands the law and can give you legal advice about your best options. William Jaksa has over 15 years of experience defending people accused of all types of criminal charges, including sexual assault and aggravated assault. He understands the consequences a conviction can have on your life and will work hard to get the best possible outcome for you. He understands that all clients matter and all results matter.

A criminal defence lawyer will be able to provide general information and legal advice on possible defences and explain in detail what constitutes an aggravated assault and if the injuries are of a nurture that maims, disfigures or endangers the life of the complainant. Contact us today.