265

Assault

265 (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 a 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, he accosts or impedes another person or begs.

Annotations 265(1)

  • Section 265(1)(a)
  • Sections 265(1)(a) and (b) do not create separate offences. Rather, these provisions define two ways of committing the same offence: R v MacKay, 2005 SCC 79 at para 4

     

  • Assault as defined in s.265(1)(a) is a general intent offence and requires only that the perpetrator intended to apply force without consent: R v Senecal, 2017 QCCA 954 at para 23; R v Tatton, 2015 SCC 33 at para 35; R v Jobidon, 1991 CanLII 77 (SCC); R v AE, 2000 CanLII 16823 (Ont CA) at para 26; R v Paice, 2005 SCC 22; R v MD, 2010 BCCA 162 at paras 29-31.

     

  • Notwithstanding that the application of force be without consent, a person cannot consent to bodily harm within the meaning of s.267(b): R v Jobidon, 1991 CanLII 77 (SCC); R v Zsombor, 2023 BCCA 37 at para 33.

     

  • Similarly, consent in the context of a fight is vitiated where “one party employs tactics that change the nature of the consensual fight from an activity with some risk of serious bodily harm to one with a significant risk of such harm”: R v Zsombor, 2023 BCCA 37 at para. 33; R v Sullivan, 2011 NLCA 6 at paras 34-38.

     

  • More precisely, the provisions of s.265 do not constitute the “entirety of limitation that may be placed on the defence of consent”: R v Jobidon, 1991 CanLII 77 (SCC); R v Welch, 1995 CanLII 282 (Ont CA) at para 25

     

  • However, there is no need that the application of force be socially unacceptable, provided the other criteria in s.265(1)(a) are met: R v Prohaska, 2017 ONCA 684 at paras 7-8

     

  • The force required for an assault need not be significant. In fact, “an assault may be no more than a touching of the person of the complainant in circumstances which interfere with the bodily integrity of the complainant.” There is no minimum amount of force required: R v AZ, 2000 CanLII16976 (Ont CA) at para 6; R v Burden, 1981 CanLII 355 (BCCA); R v MWC, 2002 NSCA at para 33.

     

  • Courts have found that “even a minor touching may be an assault if it is done in anger or takes place in a rude, insolent or a vengeful manner”: R v Fensom, 2016 ONSC 868 at para 45

     

  • By way of example an assault has been found to have occurred where:
    1. the perpetrator put his hand on a woman’s thigh: R v Burden, 1981 CanLII 355 (BC CA)
    1. the perpetrator shoved papers into the face of another person regardless of whether the perpetrator’s hand made contact with the other person: R v Jenkins, 2007 ONCJ 371

       

  • Although these examples are at the lower end of the spectrum of seriousness such conduct is nonetheless a crime in Canada. The de minimus doctrine is one that seeks “to avoid the criminalization of harmless conduct by prevent the conviction of those who have not really done anything wrong. The application of the principle goes only so far as to preclude the criminalization of conduct for which there is no reasoned apprehension of harm to any legitimate personal or societal interest.”: R v Carson, 2004 CanLII 21365 (ONCA) at para 24, leave to appeal dismissed 2004 SCCA No 260; R v Giglia, 2012 ONCJ 533 at para 70.

     

  • Some courts have applied this doctrine to the offence of assault: R v Carson, 2004 CanLII 21365 (ONCA) at para 24, leave to appeal dismissed 2004 SCCA No 260; R v Wolfe, 1974 CanLII 1643 (Ont CA) at para 5.

     

  • Other Courts have rejected its application, particularly in cases of intimate partner violence: R v Giglia, 2012 ONCJ 533 at para 73; R v Rumo, 2013 ONSC 1856 at para 15; R v Downey, 2002 NSSC 226 at para 38; R v Wojcik, 2015 ONSC 6851 at paras 54-57.

     

  • The Crown does not need to prove that the accused intended to apply force to a particular or specific person: R v Senecal, 2017 QCCA 954 at para 23.

     

  • This is so due to the doctrine of transferred intent. Where a perpetrator intends to assault one person, but instead assaults another, the doctrine of transferred intent holds the perpetrator responsible for committing the crime even though it was committed against someone other than the intended target: R v Gordon, 2009 ONCA 170 at para 43; R v Paibomsai, 2011 ONCJ 421 at para 29

     

  • In other words, to be found “guilty of assault by way of the doctrine of transferred intent, there must be an intention to commit as assault against one person, and an intentional application of force against another”: R v Shammo, 2018 MBPC 38 at para 52

     

  • Section 265(1)(b)
  • Mere words will not constitute an assault under s.265(1)(b). Instead, the evidence must prove that the accused “attempted or threatened, by act or gesture, to apply force to another person, if he has the ‘present ability to effect his purpose’ or ‘if he…causes that other person to believe on reasonable grounds, that he has, present ability to effect his purpose’”: R v MD, 2010 BCCA 162 at para 30; R v Pelletier, 2018 SKQB 45 at paras 7-8; R v Tower, 2008 NSCA 3 at para 47

     

  • The victim’s reasonable apprehension will only be relevant where an accused does not have the ability to carry out his purpose: R v MD, 2010 BCCA 162 at para 30.

     

  • Section 265(1)(c)
  • The actus reus of this offence requires proof that the accused “openly wore or carried a weapon or an imitation of a weapon and that while doing so, he or she accosted or impeded another person or begged”: R v Whitehorn, 2004 CanLII 6855 (NL PC) at para 66

     

  • The essence of the actus reus is the “inherently threatening nature of such activity when it is committed by a person who is openly wearing or carrying a weapon” or imitation: R v Whitehorn, 2004 CanLII 6855 (NL PC) at para 66

     

  • The mens rea of the offence “requires proof that the accused intended to openly wear or carry a weapon or an imitation of a weapon and that he or she intentionally committed the act which constitutes the accosting or impeding of another person”: R v Whitehorn, 2004 CanLII 6855 (NL PC) at para 67

     

  • Convictions under this provision and s.85(1)(a) may both stand – the Kienapple principle does not require a stay of proceedings: R v Meszaros, 2013 ONCA 682 at para 43

     

  • This conclusion follows in part from the observation that s.265(1)(c) requires that the accused be “openly wearing or carrying a weapon or imitation thereof” [emphasis added]. Weapon is defined in s.2 of the Code and includes, but is not limited to firearms: R v Meszaros, 2013 ONCA 682 at paras 48 and 55

Application

(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

Annotations 265(2)

  • As indicated, s.265 is applicable to all forms of assault including sexual assault: R v Cringle, 2010 ONCA 451 at para 14

Consent

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(a) the application of force to the complainant or to a person other than the complainant;

(b) threats or fear of the application of force to the complainant or to a person other than the complainant;

(c) fraud; or

(d) the exercise of authority.

Annotations 265(3)

• Pursuant to s.265(3)(c), fraud can vitiate consent. In the context of sexual assault cases, concealing, or a failure to disclose one’s HIV-positive (or other disease) status may constitute fraud within the meaning of this provision: R v Cuerrier, 1998 CanLII 796 (SCC) at para 124; R v Hutchinson, 2014 SCC 19 at paras 13 and 94; R v Mabior, 2012 SCC 47 at para 2 • In this context, fraud requires both a dishonest act and a deprivation: R v Hutchinson, 2014 SCC 19 at para 91

Accused’s belief as to consent

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.

Annotations 265(4)

• This provision is applicable to all forms of assault including, but not limited to, sexual assault. It is a codification of the common law defence of mistake of fact: R v Osolin, 1993 CanLII 54 (SCC); R v Jobidon, 1991 CanLII 77 (SCC)

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