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What is the Difference Between Assault and Battery?

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People who consult with our Toronto-area lawyers about their assault charges often ask what the difference is between assault and battery. This is an interesting question because there are no provisions in Canada’s Criminal Code that cover “battery.” We assume the question is raised because the term “assault and battery” is frequently used in TV show dramas and other media that cover law enforcement and courts. Additionally, “assault and battery” is a legally defined offence in the U.S. These two facts might lead some Canadians to assume that battery could be a component of assault charges here. And it is, but it’s just not called “battery.”

“Battery” has Equivalent in Criminal Code

The Merriam-Webster dictionary defines battery as “the act of beating someone or something with successive blows: the act of battering,” and, as a legal term, “an offensive touching or use of force on a person without the person’s consent.” The first definition definitely falls under the parameters of the legal definition, but you should notice that the legal definition is broader in scope. In particular, note the characterization of “offensive touching” and “use of force,” combined with the issue of “consent.” All of these are important within the context of our Criminal Code’s description of assault, particularly its description of “assault with a weapon or causing bodily harm.”

Canada’s Criminal Code covers assault from Sections 264.1 (1) to 278.98 (4). The basic definition of assault is set out in Section 265(1) of the Code , which defines assault as an offence in which a person:

  • “(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 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.”

The basic assault definition applies to all other forms of assault and is commonly referred to as “simple assault,” which makes up the vast majority of Ontario’s 35,000 or so annual assault arrests. While battery is implied in provision (a) of Section 265(1), it is more clear cut in Section 257’s assault with a weapon or causing bodily harm, which is conditioned by stating that the accused:

  • “carries, uses or threatens to use a weapon or an imitation thereof,
  • “causes bodily harm to the complainant, or
  • “chokes, suffocates or strangles the complainant.”

The second provision of causing “bodily harm to the complainant” represents the battery within the assault charge. A simple assault charge may not include bodily harm and direct “use of force,” which means it does not carry the idea of battery within the context of the law. Not only does the causing bodily harm represent battery, but under Canadian law, no one can consent to bodily harm, which clearly establishes the “without consent” provision of battery under assault with a weapon or causing physical harm.

Penalties for “Battery” Conviction Are Stiff

Because simple assault arrests don’t involve significant physical harm and typically arise from fistfights or domestic disputes that turn physical, penalties for a conviction are usually light. Most simple assault charges are heard in Ontario courts as a summary conviction offence, which carries a maximum sentence of six months in jail, though many offenders usually avoid jail time. If the Crown elects to prosecute the case as an indictable offence charge, the maximum penalty is five years in prison.

The potential penalties for assault with a weapon or causing bodily harm are far more severe. When charged as a summary conviction offence, the maximum sentence is 18 months in jail. When charged as an indictable offence, the maximum penalty is 10 years in prison upon conviction. The sexual assault equivalent crimes carry the same penalties. Aggravated assault , the most severe form of assault in terms of both damage done to the victim and legal penalties, is solely tried as an indictable offence, with a maximum sentence of 14 years in prison.

Assault Charge Defence Strategies

Anyone facing charges for assault with a weapon or causing bodily harm in Ontario should seek legal representation from an experienced criminal defence assault lawyer, such as those who work at the Greater Toronto Area’s Mass Tsang . We have a strong record of developing effective criminal defences that can lead to acquittals, withdrawn charges, dismissal, or reduced charges or penalties. Strategies we might use to defend against assault with a weapon or causing bodily harm charges include:

Self DefenceSection 34 of the Criminal Code allows a not guilty finding if:

  • “[The suspect had] reasonable grounds [to believe] that force [was] being used against them or another person or that a threat of force [was] being made against them or another person;
  • “The assault was “committed for the purpose of defending or protecting themselves or the other person from the use of that force; and
  • “[T]he act committed [was] reasonable in the circumstances.”

Raising reasonable doubt — as you’ve undoubtedly seen in TV courtroom dramas, experienced criminal lawyers question any element of a case that might raise doubts about the evidence. Doubts weaken the Crown’s case, and a conviction must pass the legal concept of “beyond a reasonable doubt.”

Lack of intent — considered when there is evidence that the assault may have resulted from a reflexive reaction to external stimuli or was otherwise unintentional.

Charter Rights violations — to err is human, but when police or prosecutors make errors that impact a suspect’s Charter Rights, it can jeopardize the entire basis of their case.

Plea bargain for reduced charges — might be used if your lawyer believes the evidence is overwhelming or otherwise does not see a clear path to acquittal or dismissal of the charges.

Consult with Mass Tsang for your Ontario Assault Defence

The criminal trial lawyers at Mass Tsang are dedicated to securing the most favourable outcome possible for every Toronto-area client it represents in an assault case. This dedication has helped Mass Tsang lawyers successfully defend thousands of Toronto-area assault cases. If you or someone you know has been charged with assault in the GTA contact the experienced Mass Tsang lawyers today for a free consultation.



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