Is It Possible to Defend An Assault Charge?
Successfully Defending An Assault Charge May Arise By Showing That the Assault Occurred During a Lawful Self-Defence Reaction, By Showing That There Was Consent to Contact, By Showing That Contact Occurred Accidentally, or By Raising Reasonable Doubt That Any Assault Actually Occurred At All.
Understanding the Charge of Assault Per Section 265 of the Criminal Code Including Available Defence Strategies
The charge of assault, sometimes also referred to as common assault as opposed to the charge of assault with a weapon, remains a very serious charge with the potential for very significant penalties including jail time. Accordingly, if you are charged with assault it is important to carefully review and select an appropriate defence strategy.
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.
(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.
(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.
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.
The potential penalty for assault depends on the selection of whether the prosecutor elects to proceed with the charge as an indictable offence proceeding or a summary conviction proceeding. As interestingly notable, if an assault charge proceeds as an indictable offence, then only a lawyer may provide legal representation services on behalf of the accused person; however, if an assault charge proceeds as a summary conviction offence, then either a lawyer or a paralegal may provide legal representation services.
As for the Criminal Code specifics regarding the potential penalties, the Criminal Code states:
As shown above, section 266 of the Criminal Code specifies two possibilities for penalties for assault. For an assault charge prosecuted as an indictable offence, a maximum five (5) year term of imprisonment is expressly stated; however, for an assault charge prosecuted as a summary conviction offence, the penalty is unstated; and accordingly, reference to section 787(1), which provides the General Penalty details applicable to a summary conviction offence, is necessary. Specifically, section 787(1) states:
787 (1) Unless otherwise provided by law, every person who is convicted of an offence punishable on summary conviction is liable to a fine of not more than $5,000 or to a term of imprisonment of not more than two years less a day, or to both.
As shown per section 787(1) above, the potential General Penalty for an assault prosecuted as a summary conviction offence is a fine up to $5,000 or two years less a day imprisonment or both.
In addition to the potential for a significant fine and imprisonment, a conviction for assault may result in a criminal record that adversely affects future employment opportunities as well as travel privileges into the United States. Accordingly, a strategic defence against assault allegations is worthy and warranted.
Available Defence Strategies
The defence strategy known as self-defence involves demonstrating that although an assault occurred as defined in section 265(1) of the Criminal Code, the assault occurred during an effort to defend oneself or another person. Simply said, when an assault occurs in response to an aggressor and the response involves a level of force reasonable to the circumstances, the charge of assault should be dismissed. With this said, it is necessary to remain aware that the self-defence theory must be able to show that the reaction arose genuinely from a view of self-preservation or protection of another person rather than as a retaliation. Arguing a self-defence theory will fail if the incident began with the accused acting defensively and thereafter acting offensively.
Defence — use or threat of force
34 (1) A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.
Circumstances may arise where a person comes into contact with another person due to an automated response, meaning reflex, rather than from a conscious intent. In such circumstances, if an assault charge were to arise, the accused person may be able to defend the charge on the basis of reflex. Reflex, as a defence to an assault charge, was explained well within the case of R. v. Feng, 2020 ONCJ 593, where it was said:
 The use of reflex as a defence to assault has been raised in one of two broad ways. A narrow dictionary reading of “reflex” defines it as “independent of the will, caused as automatic response to nerve stimulation” or “an action, involuntary action of a muscle, gland or other organ, caused by the excitation of a sensory nerve being transmitted to a nerve-centre, and thence reflected along an efferent nerve to the organ in question”.
 A reflexive action defined in this way is an involuntary response over which the accused had no control which would negate the actus reus of an offence (see R. v. Lewis,  O.J. No. 529 (ONCA) at paragraphs 16 and 17 and R. v. Mullin (1990), 56 C.C.C. (3d) (PEICA) 476 at 484). A patient who kicks her doctor when tapped on the knee by a rubber hammer has reacted reflexively in an involuntary manner and no offence has been committed. This form of autonomic nerve response is not what is at issue here, but there is a broader reading of “reflex” that relates to the mens rea element of assault which requires proof of an intentional application of force.
 This was highlighted by the ONCA in R. v. Wolfe, 1974 CanLII 1643 (ON CA),  O.J. No. 868 where, in brief oral reasons, Gale C.J.O. noted that a trial judge was permitted to consider the actions of the appellant as a reflex action where “no offence was committed because some intent is a necessary ingredient in an assault” (at paragraph 3). The accused in Wolfe struck the complainant in the head with the telephone receiver he was holding immediately after himself being punched by the complainant. I agree with Berg J. in R. v. Sayed-Mansour,  O.J. No. 6329 at paragraph 40 that:
Clearly the test in Wolfe is not concerned with an action that is independent of the will, an action that is truly involuntary in the physiological sense. What Wolfe and the line of cases that follow are dealing with is an action that is an immediate and unpremeditated reaction to an external stimulus. While voluntary, no conscious thought is involved.
 In contrast, where the accused responded to spilling his tea upon being bumped by following the complainant through a door, taking a step inside, and hurling the hot remains of his tea cup, the court declined to define his actions as a reflex and he was found guilty (R. v. D.T.,  O.J. No. 688 at paragraphs 74-80).
 These cases are best viewed along a continuum with differing legal consequences at each waypoint. That continuum runs from autonomic physiological reflex to unconscious reaction to considered reprisal. Where the action of the accused is purely an electrochemical response to external stimulus, it is an involuntary reflex that fails to engage the actus reus of the offence. Where the action of the accused is an immediate reaction taken without consideration or conscious thought it is an unintended application of force that fails to engage the mens rea of the offence. Where the action of the accused is a considered reaction to outside events, it is neither involuntary nor unintended and thus, if proven, makes out the offence of assault.
Consent to Contact
In some circumstances, it may be possible to demonstrate that the person assaulted actually consented to the contract; and accordingly, the charge of assault should be dismissed whereas assault is unlawful only if force was applied upon the other person without consent. Of course, proving that force, including the level of force, was consented to may be difficult.
Absence of Intention
An intention to engage in conduct that applies force upon another person is a critical element of the charge of assault; and accordingly, if it can be shown that the contact with another person was an accident, then the charge of assault should be dismissed.
To obtain a conviction on any criminal charge, the prosecutor must prove, beyond a reasonable doubt, that the allegations are true. If the judge, or jury, is left with a reasonable doubt, then the charge should be dismissed. Accordingly, any defence theory that demonstrates weakness in the prosecution theory is helpful.
Raising reasonable doubt may occur by challenging witnesses during the cross-examination phrase of a Trial. For example, a witness might first testify that the accused person charged with assault threw an unprovoked first punch; however, on cross-examination, that same witness may admit to the incident occurring in a dark area, to being at some distance from the accused and alleged victim, and to failing to wear prescription glasses at the time of the alleged incident. Simply said, cross-examination questions that raise possibility that a witness was mistaken, helps to raise doubts in the prosecutors case and can help lead to dismissal of the charge and acquital in favour of the accused person.
The charge of assault, being common assault, involves potential penalties upon conviction that vary depending upon whether the prosecutor proceeds with the case as an indictable offence or a summary conviction offence. Assault as an indictable offence presents potential penalty of five years imprisonment. Assault as a summary conviction offence presents potential penalty of a $5,000 fine or two years less a day imprisonment or both.
Possible defence theories to use in countering an assault charge include theories of self-defence, of consent to contact, of absence of intention, or of reasonable doubt that the incident occurred as alleged, if at all.