The answer to the question “What’s the difference between assault and aggravated assault in Canada?” will vary depending upon whom you ask. Your average Torontonian with no criminal history might correctly guess, in part, that aggravated assault is a more severe form of simple assault, while a Statistics Canada employee might tell you that the 2022 national difference is 71,906—that is, between the 75,248 people arrested for assault versus the 3,342 charged with aggravated assault.
However, an Ontario aggravated assault charge defence lawyer will tell you the difference is nine years – that is, between the maximum prison sentence of five years for assault and 14 years for aggravated assault.
The differences between these definitions are imperative to understand when dealing with assault and aggravated assault in the context of Canadian law.
What is Assault?
Canada’s Criminal Code broadly defines assault under Section 265(1) as an offence during which a person:
- “(a) without the consent of another person… applies force intentionally to that other person, directly or indirectly;”
- “(b) attempts or threatens, by an act or gesture, to apply force to another person, if he has or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
- “(c) while openly wearing or carrying a weapon or an imitation thereof… accosts or impedes another person or begs.”
Usually referred to as “simple” or “basic” assault, subsection (a) of this offence typically covers altercations such as fistfights and domestic disputes that turn physical. Meanwhile, charges laid due to violations of subsections (b) and (c) are far less common, though the law clearly makes such acts illegal.
However, proving subsection (b) in court can be problematic due to the subjectiveness of the victim’s belief regarding the nature of the action or gesture. Subsection (c) would be far easier to prove in court, with the weapon’s presence during the incident being key.
The Crown can charge assault as either a summary conviction or an indictable offence. Ontario courts address most simple assault charges as summary conviction offences, which carry a maximum sentence of six months in jail, while the maximum penalty when charged with an indictable offence is five years in prison.
What is Aggravated Assault?
While aggravated assault is a far more serious offence than simple assault, Section 268 (1) of the Criminal Code defines it as:
- “Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.”
Thus, if a simple assault causes injuries to the victim, the Crown can elevate the offence to an aggravated assault.
This represents the crux of the difference between assault and aggravated assault. However, the Criminal Code also includes under Section 267 information about assault with a weapon or causing bodily harm. The Crown can lay charges with this assault category if the alleged assailant does any of the following during the incident:
- Carries, uses, or threatens to use a weapon or an imitation of one against the victim.
- Causes bodily harm to the victim.
- Chokes, suffocates, or strangles the victim.
Why, you might ask, would this assault category include provisions about causing bodily harm when that seems to be covered by aggravated assault?
The answer is that bodily harm provisions provide the Crown with more options to moderate the severity of punishment for assaults that cause injuries. The Crown charges aggravated assault solely as the more serious indictable offence, and can set the other assault categories as either indictable or summary conviction offences.
The Crown typically therefore lays assault causing bodily harm charges if the victim suffers minor injuries such as cuts, bruising, or other harm that doesn’t require hospitalization. If these wounds require hospitalization, cause disfigurement or maiming, or otherwise put the victim’s life in significant danger, prosecutors will usually pursue aggravated assault charges.
The Penalties for These Two Forms of Assault
Conviction for aggravated assault, assault with a weapon, or assault causing bodily harm, carries much harsher sentences than simple assault.
As noted, aggravated assault is always tried as an indictable offence, with a maximum 14-year prison term. As a hybrid offence, the maximum sentence for assault with a weapon or causing bodily harm under indictment is 10 years imprisonment. If charged as a lower-level summary conviction offence, the maximum penalty is 18 months in jail.
Defending Against Aggravated Assault Charges
A skilled aggravated assault defence lawyer is able to consider many options and strategies when working on a defence. Starting with the basics, it’s important to know that in order to secure a conviction for aggravated assault, the Crown must prove that the alleged offender committed the assault and did so intentionally and/or knowingly. They must also clearly demonstrate that the degree of injuries meets the “aggravated” threshold of the offence, and the Crown must also be able to prove these factors “beyond a reasonable doubt.”
Therefore, a key component of developing a defence strategy for these charges is identifying any evidence or components of the Crown’s case that a lawyer can challenge on a reasonable doubt basis – if a defence lawyer identifies significant flaws with the Crown’s case or evidence, they will usually raise them with the prosecutors pre-trial in an effort to get the charges dropped or otherwise favourably resolved.
Other defence strategies that might come into play include:
Section 34 of the Criminal Code mandates a “not guilty” finding if the following parameters are met:
- The offender had reasonable grounds to believe the victim was using force or threatening to use force against them or others.
- The assault was “committed for the purpose of defending or protecting themselves or the other person from that use or threat of force.”
- The assault was a reasonable response, given the circumstances.
Lack of Intent
A defence lawyer may be able to raise the lack of intent defence strategy if they can offer enough proof that the assault was not intentional, or occurred because of a reflexive reaction to external stimuli.
Consent for the Use of Force
A defence lawyer can use this defence in aggravated assaults that occur as the result of a fistfight. This strategy strives to mitigate the alleged assailant’s guilt in the assault by demonstrating that it wouldn’t have happened if the victim hadn’t been a willing participant in the brawl.
It’s important to keep in mind that even if consent is successfully proven, the court can still hand down a conviction. This may, however, help reduce the severity of sentencing
Charter Rights Violations
Experienced defence lawyers always review evidence and case details for potential Charter Rights violations by police or prosecutors.
Due to the fact that Charter violations cause disrepute to the judicial system, judges will often exclude relevant evidence connected to any such violations. Judges will even dismiss all charges if these violations are severe, or appear to have been purposeful.
When the evidence seems overwhelming and there’s no clear path to acquittal or dismissal of your charges, a defence lawyer will usually suggest that their clients allow them to pursue plea bargain negotiations for reduced charges.
If you’re facing aggravated assault charges in the Greater Toronto Area, it’s essential to secure experienced legal representation from skilled lawyers, such as our team at Vilkhov Law. Reach out to us today by contacting us for a free, confidential consultation.