Criminal Law
Assault
This pamphlet answers some questions commonly asked about assault. It is not a complete statement of the law in this area and laws change from time to time. Anyone needing specific legal advice should contact a lawyer.
What is assault?
Assault is the intentional use of force against somebody without his/her consent. Attempting to use force or threatening to use force are assaults too.
Is there more than one kind of assault?
Yes. The federal Criminal Code describes different kinds of assaults depending on how much force is used. It sets out the procedures for dealing with offenders and the penalties for assault. The Code also deals with sexual assault which happens when somebody is assaulted in circumstances that are sexual in nature.
What is the penalty for an assault?
It depends on how serious the assault was, the kind of assault and whether the offender has been convicted of assault before. For a minor assault, if the Crown Prosecutor decides to charge the accused person with a summary conviction offence, he or she faces a fine of up to $2000 or a sentence of up to six months in jail or both. If the accused is charged with an indictable offence (for a more serious assault) he or she faces a prison sentence of up to five years.
A person who commits assault with a weapon, or threatens to use a weapon, could get up to ten years in prison even if it is only an imitation weapon.
If a person injures somebody because of an assault, he or she could be charged with assault causing bodily harm. If a court finds the person guilty, the sentence could be up to ten years in prison. "Bodily harm" means any injury that affects a person's health and comfort and is more than temporary or trifling in nature.
If a person seriously hurts somebody by wounding, maiming, disfiguring or endangers somebody's life, the offence is aggravated assault. This is a very serious charge. The maximum penalty for it is fourteen years in prison. Serious sexual assault offences also could bring an offender up to fourteen years in prison. The maximum penalty for aggravated sexual assault is life imprisonment.
Does assault only happen if someone grabs, hits or pushes me?
No. Even simple touching might be an assault, depending on the situation. If somebody touches you in anger while using threatening language and you believe that he or she could hurt you, that could be an assault.
An assault might be committed even without touching if somebody threatens to harm you and you reasonably believe that he/she could carry out the threat.
Examples of phrases that might be assaults are: "You're going to get it" and "You're going to die."
Does it make a difference if the assault happens in a private home?
Some people think they can do anything they want inside their own home. That is incorrect. The law says nobody is allowed to assault another person under any circumstances. Assaults in the home between spouses, family members, or friends are as serious as assaults between strangers. Even disciplining your child can be assault if you use unreasonable force. The police can lay charges no matter where the assault takes place or who the people are.
Can I agree to fight somebody?
Depending on the circumstances, two people may agree to fight without creating an offence. Silence is not agreement. The fight must be fair and it cannot go beyond reasonable limits. Weapons of any kind can't be used. If you do injure the other person, you could be charged with assault if the force used was excessive in these circumstances.
What if somebody provokes me to fight?
That's no excuse. If you strike the other person, you could be charged with assault. However, a court might take into consideration the degree of provocation in lessening a sentence against you.
No matter who starts the fight, you have a right to self-defence. For example, if the person you are fighting pulls out a weapon, you have a right to defend yourself. However, you can use only as much force as is reasonably necessary to protect yourself from serious bodily harm or death.
If somebody attacks me or threatens to attack me, can I use force to defend myself?
You have a right to use only as much force as is reasonably necessary to defend yourself. If somebody threatens you with serious bodily harm or death, you can do whatever is reasonably necessary to defend yourself from serious injury or death.
If you hit first because you think somebody is going to attack you, you will need a good reason for your belief. If you reasonably believed that using force was the only way you could protect yourself from serious injury or death, you may be able to raise the defence of self-defence. If, in self-defence, you seriously hurt or kill somebody who was threatening to kill you, a court may excuse your action. However, the evidence must indicate you did not have any reasonable alternative.
Can I defend somebody who is being assaulted?
You can use force to defend anyone under your care. The law allows people to defend family members, children, spouses or common law partners. A person might even be able to use force to defend friends, provided it could be shown it was somebody under his or her protection. The standard rules about the use of force apply here too.
What can I do if I've been assaulted?
If you've been assaulted, you should call the police. If you can, write down what happened, where, and the time of the assault. Get the names and addresses of any witnesses. Write a description of the person who assaulted you and, if possible, his/her name and address.
If you have been assaulted in your own home by your spouse or a member of your family, your personal safety is the first concern. If necessary, go to a friend's house or a shelter for victims of family violence. You can take action when you reach safety.
Don't wait too long to call the police or go to the police station yourself. The sooner you report the assault, theeasier it will be to collect the evidence needed to prove your case.
Can victims of assault get any compensation?
The crime compensation fund may cover some of your losses. For more information about compensation or other services for victims of crime contact the Department of Justice, and talk to the Victim Services coordinator for your area.
Public Legal Education and Information Service of New Brunswick (PLEIS-NB) is a non-profit organization. Its goal is to provide New Brunswickers with information on the law.
PLEIS-NB receives funding and in-kind support from the Department of Justice Canada, the New Brunswick Law Foundation and the Office of the Attorney General of New Brunswick.
We gratefully acknowledge the cooperation of members of the Law Society of New Brunswick, the Public Prosecutions Branch of the Department of Justice, Legislative Services of the Deparmtent of Justice of New Brunswick and the Faculty of Law, University of New Brunswick.
Published by:
Public Legal Education and Information Service of New Brunswick
P.O. Box 6000 Fredericton, N.B.
E3B 5H1 CANADA
Tel: (506) 453-5369
Fax: (506) 462-5193
Email: pleisnb@web.ca
March 2004
ISBN: 1-55048-663-2
Disclaimer: Please note that our website contains general information about the law. This is not a complete statement of the law on particular topics. We try to update our publications often, but laws change frequently so it is important for you to check to make sure the information is up to date. The information in our publications is not a substitute for legal advice. To receive legal advice about your specific situation, you need to speak to a lawyer.
