Defence Against Assault Charges

What Does the Crown Have to Prove in an Assault Case?

Before considering a specific defence, it is important to understand what the prosecution must prove. Under section 265 of the Criminal Code, assault includes intentionally applying force to another person without their consent. Assault can also include certain attempts or threats to apply force where the accused has, or causes the other person to reasonably believe they have, the present ability to carry out the threat.

An injury is not required for a person to be charged with assault.

The Crown bears the burden of proving the offence beyond a reasonable doubt. Depending on the allegation, important questions can include:

• Was force actually applied?
• Was the physical contact intentional?
• Did the complainant consent?
• Did the accused make the alleged threat or gesture?
• Can the Crown establish the identity of the person responsible?
• Is the complainant’s account reliable?
• Does self-defence apply?
• Is there evidence contradicting the allegation?
• Was evidence obtained in violation of the accused’s Charter rights?

A defence does not always depend on proving an entirely different version of events. In some cases, exposing weaknesses or inconsistencies in the Crown’s evidence may be enough to create reasonable doubt.

What Is the Best Defence for an Assault Charge?

There is no single “best” defence to an assault charge. The strongest defence is the one supported by the facts and evidence of each particular case.

For one person, that may be self-defence, whereas another case may turn on whether the alleged physical contact was intentional. In another, surveillance footage or independent witnesses may contradict the complainant’s version of events.

Some cases depend primarily on credibility. Others involve identification, consent, Charter issues or evidence showing that the accused was not present when the alleged assault occurred.

Choosing a defence strategy therefore requires more than identifying a legal defence that could theoretically apply. The evidence must be examined to determine which arguments are realistically available.

Self-Defence in an Assault Case

Self-defence is one of the most important potential defences to an assault charge. Section 34 of the Criminal Code provides a defence where three requirements are met:

1. The accused believed on reasonable grounds that force was being used or threatened against them or another person.
2. The accused acted for the purpose of defending or protecting themselves or the other person.
3. The act committed was reasonable in the circumstances.

The third requirement is particularly important. There is no simple rule that a person can respond with a particular amount of force. Instead, the court considers the circumstances surrounding the confrontation.

Relevant factors can include the nature of the force or threat, how imminent it was, whether other means of responding were available, the accused’s role in the incident, whether anyone had a weapon, the physical capabilities of the people involved and the history between the parties.

The nature and proportionality of the response can also be considered, but it is one factor within the broader assessment of whether the accused’s conduct was reasonable.

What If You Struck First?

The fact that an accused physically struck the complainant first does not necessarily answer whether self-defence is available. Section 34 includes threatened force as well as actual force. The entire sequence of events matters. For example, evidence concerning threats, movements, weapons, previous interactions and what the accused reasonably believed was about to happen may all become relevant.

The question is not simply who made physical contact first. The court considers whether the legal requirements for self-defence were satisfied in the circumstances.

Can You Defend Another Person?

Yes. Section 34 applies to circumstances where an accused reasonably believed that force or a threat of force was being used against either themselves or another person.

This means the defence may potentially apply where someone intervenes to protect a family member, friend or another individual. As with defending yourself, the act committed to protect the other person must be reasonable in the circumstances.

Consent as a Defence to Assault

Consent can be an important issue because the basic assault offence under section 265 involves the intentional application of force without consent.

If the complainant consented to the physical contact in question, the Crown may be unable to establish an essential element of assault.

Consent can arise in situations involving ordinary social interaction, sporting activities and other consensual physical contact. However, consent is not unlimited. The Criminal Code specifically provides that consent is not obtained where a complainant submits or does not resist because of force, threats or fear of force, fraud or the exercise of authority.

Canadian law also places limits on the extent to which a person can legally consent to certain forms of intentional bodily harm.

Whether consent provides a defence therefore depends heavily on what occurred and the nature of the alleged physical contact.

Accident and Lack of Intent

Assault generally requires the intentional application of force. That distinction can be important where physical contact occurred accidentally.

People can collide during an argument. Someone attempting to leave a crowded area may unintentionally make contact with another person. A physical interaction can also unfold differently from the way a witness initially perceived it.

Where the alleged application of force was genuinely accidental, the Crown may have difficulty proving the intent required for assault.

Video footage, witness testimony and the circumstances immediately before and after the contact can be particularly important when intent is disputed.

Mistaken Identity

Sometimes there is little dispute that an assault occurred. The issue is whether the accused was the person responsible. Identification evidence can be unreliable, particularly where an incident occurred quickly, at night, in a crowded environment or under stressful circumstances. A defence lawyer may examine:

• the witness’s opportunity to observe the person;
• lighting and visibility;
• how long the witness observed the person;
• inconsistencies in descriptions;
• whether multiple people were involved;
• surveillance footage;
• cellphone recordings;
• photographs;
• electronic evidence; and
• evidence establishing the accused’s location.

The Crown must prove beyond a reasonable doubt that the accused committed the offence. A genuine issue concerning identification can therefore become central to the defence.

Alibi Evidence

An alibi is closely related to identification but involves evidence that the accused was somewhere else when the alleged offence occurred.

Potential alibi evidence can include independent witnesses, surveillance footage, receipts, electronic communications or other reliable evidence establishing the accused’s location. An alibi should be carefully investigated rather than assumed.

Where reliable evidence establishes that the accused could not have committed the alleged assault, it can significantly undermine the prosecution’s case.

Credibility and Conflicting Versions of Events

Assault cases frequently arise from confrontations where the accused and complainant provide very different accounts of what happened. There may be no independent witness who observed the entire interaction.These cases can depend heavily on credibility and reliability.

A defence lawyer can compare a complainant’s account against:

• previous statements;
• police notes;
• 911 recordings;
• text messages;
• photographs;
• surveillance footage;
• independent witnesses;
• medical evidence; and
• other objective evidence.

An inconsistency does not automatically mean a witness is lying. Memory can be imperfect, particularly following a stressful incident. However, significant contradictions, unexplained changes in an account or conflicts with objective evidence can become important when determining whether the Crown has proven its case beyond a reasonable doubt.

Defence of Property

The Criminal Code also recognizes a defence relating to the protection of property. This can potentially become relevant where an assault allegation arises during a confrontation involving someone entering, taking, damaging or interfering with property. However, protecting property does not create an unlimited right to use force.

Whether the defence applies depends on the circumstances and whether the accused’s conduct was reasonable.

Where an assault charge arises from a confrontation over a home, vehicle, business or other property, both the assault allegation and the circumstances giving rise to the confrontation should be examined carefully.

Charter Defences in Assault Cases

An assault defence is not always limited to what happened during the alleged confrontation. The conduct of police during the investigation can also become relevant.

The Canadian Charter of Rights and Freedoms protects individuals against certain forms of unlawful state conduct. Depending on the circumstances of an assault investigation, potential issues can involve:

• unlawful detention;
• unlawful arrest;
• unreasonable search or seizure;
• failure to provide access to legal counsel; or
• statements obtained in circumstances that violated the accused’s rights.

Where a Charter breach occurred, a defence lawyer can determine whether an application should be brought and what remedy may be available.

In some circumstances, this can include seeking exclusion of evidence.

What Evidence Can Help Defend an Assault Charge?

Evidence can disappear quickly after an alleged assault. Businesses may overwrite surveillance recordings. Text messages can be deleted. Witnesses can become more difficult to locate and memories can change. Potentially useful evidence can include:

• surveillance footage;
• cellphone videos;
• photographs;
• text messages;
• emails and social media communications;
• 911 recordings;
• body-camera footage;
• witness statements;
• medical records;
• photographs of injuries;
• location information;
• receipts or transaction records; and
• communications before and after the incident.

Evidence showing injuries to the accused can also be important in a self-defence case, particularly where the prosecution’s version portrays the accused as the sole aggressor.

Preserving evidence early can give the defence a more complete picture of what actually occurred.

What If There Are No Independent Witnesses?

A prosecution does not automatically fail because there are no independent witnesses. Some assault cases primarily involve the evidence of the complainant and accused.

The court must still determine whether the Crown has proven the charge beyond a reasonable doubt. This makes a careful examination of the complainant’s evidence particularly important. Previous statements, inconsistencies, surrounding circumstances and objective evidence may help determine whether an account is reliable or not.

A case should not be assumed to be unwinnable simply because the complainant and accused are the only people who witnessed the entire incident.

What If the Complainant Wants to Drop the Charge?

A complainant cannot simply “drop” a criminal assault charge after it has been laid. The prosecution is controlled by the Crown, not the complainant. A complainant may communicate that they no longer want the prosecution to continue, but the Crown ultimately determines whether the charge will proceed, and be prosecuted. This is particularly important in domestic assault cases.

If the accused has a no-contact condition, the complainant asking to resume communication does not automatically cancel that condition. The accused must continue complying with the terms of release unless they are formally varied. Breaching those conditions can result in additional criminal charges of Failure to Comply.

Can Assault Charges Be Withdrawn?

Yes, assault charges can be withdrawn in appropriate circumstances, but withdrawal is not guaranteed. After reviewing the disclosure and circumstances of the case, a defence lawyer may identify evidentiary problems, legal issues or other factors that can be raised with the Crown. Depending on the case, possible outcomes can include:

• withdrawal of the charge;
• a peace bond;
• another alternative resolution;
• an acquittal following trial; or
• a negotiated resolution.

The appropriate objective depends on the strength of the evidence, the seriousness of the allegations and the circumstances of the accused.

Do You Have to Prove Your Innocence?

No. An accused person does not generally have to prove their innocence. The Crown bears the burden of proving the offence beyond a reasonable doubt. This distinction is fundamental to defending an assault charge.

The defence may present evidence where appropriate, but the ultimate question remains whether the prosecution has established the offence to the required legal standard. A successful defence can therefore result from affirmative evidence supporting self-defence, an alibi or another defence, but it can also result from weaknesses in the prosecution’s own case that leave a reasonable doubt.

How De Boyrie Law Builds a Defence Against Assault Charges

Every assault case requires an individual assessment. At De Boyrie Law, preparing an assault defence can include reviewing the allegations, obtaining disclosure, examining police and witness statements, identifying evidence that should be preserved and determining which legal defences are realistically supported by the facts.

Depending on the case, this can involve:

• reviewing disclosure and police evidence;
• examining the complainant’s statements for inconsistencies;
• obtaining surveillance or video evidence;
• identifying and interviewing potential witnesses;
• preserving electronic communications;
• examining medical evidence;
• assessing self-defence;
• determining whether consent or lack of intent is relevant;
• challenging identification evidence;
• investigating an alibi;
• examining police conduct for Charter violations;
• negotiating with the Crown; and
• preparing the case for trial.

The strategy should be driven by the evidence rather than forcing the facts into a predetermined defence.

Frequently Asked Questions About Defending Assault Charges

What Is the Most Common Defence to Assault?

Self-defence is an important defence in many assault cases, but there is no defence that automatically applies simply because someone has been charged.

The strongest strategy depends on the evidence. Some cases are better defended through lack of intent, consent, mistaken identity, credibility issues or reasonable doubt in the Crown’s case.

Can I Claim Self-Defence If I Injured the Other Person?

Potentially. The fact that the complainant was injured does not automatically prevent self-defence from applying. The court considers whether the requirements of section 34 were satisfied and whether the accused’s actions were reasonable in the circumstances. The seriousness of the response and the injuries caused can nevertheless be relevant to that assessment.

Can I Be Convicted If the Other Person Wasn’t Injured?

Yes. An injury is not required for common assault. The Crown can prosecute an allegation involving an intentional application of force without consent even where the complainant suffered no physical injury.

Can Text Messages Be Used to Defend an Assault Charge?

Potentially. Messages exchanged before or after an alleged assault may provide important context, contradict a witness’s account, establish the relationship between the parties or support another aspect of the defence. They should be preserved in their original form whenever possible.

Can Surveillance Footage Help My Case?

Yes. Video evidence can be particularly valuable because it may provide evidence independent of the accounts given by the accused and complainant. If surveillance cameras may have captured an incident, identifying and preserving that footage quickly can be important because recordings are often automatically overwritten.

Can an Assault Charge Be Defended Without Going to Trial?

Yes. Many assault charges are resolved without a trial. Depending on the circumstances, the defence may seek withdrawal, a peace bond or another favourable resolution. Other cases should proceed to trial because the charge is disputed or an acceptable resolution cannot be reached.

What Should I Do Immediately After Being Charged?

• Follow all release conditions, avoid contacting anyone you are prohibited from contacting and preserve potentially relevant evidence.
• Avoid posting about the allegations on social media or discussing the details of the case unnecessarily.
• You should also obtain legal advice as soon as possible so that the evidence and circumstances can be reviewed before important decisions are made about the defence.

Speak With a Lawyer About Defending an Assault Charge

An assault charge is an allegation, not a conviction. Whether the case involves self-defence, conflicting accounts, accidental contact, identification issues or another defence, the evidence needs to be examined before an effective strategy can be developed.

De Boyrie Law represents individuals facing assault allegations and can review the circumstances of your case, explain the potential defences and identify the next steps.

Call (647) 931-0248 or request a free consultation to discuss your assault charge.