Q: I have heard that you can commit an assault without even touching somebody. Is this true?
A:Yes. Section 265 of the Criminal Code describes assault as the intentional application of force to another person, without his consent. It includes attempting or threatening, by an act or a gesture, to apply force to another person, if that person reasonably believes that the offending person has the ability to carry out his intention of applying force. It is also an assault to “accost or impede” (to confront or obstruct) another person while openly wearing or carrying a weapon or an imitation of a weapon.
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Some other interesting points around the charge of assault involve the whole question of consent: if force was applied to another with their consent, then that is not an assault.
The application of force by one hockey player against another, if it were carried out, for example, in a restaurant, would almost certainly result in a call to the police.
However, in a setting such as hockey, there is an implied consent to the application of a certain amount of force — the amount necessary to play the game by the accepted rules — and one consents to that when he steps on the ice to participate in the game.
However, where there is a deliberate attempt to inflict injury to another player, there could be a charge of assault.
The law states that, in a charge of assault, there is not true consent where it is not given freely: for example, where the consent is obtained by fraud.
An example of this is where a person who knows he is HIV-positive has sexual intercourse with another person but doesn’t disclose this fact.
In a charge of assault in such a case, the prosecution alleged that the consent of the victim was obtained by fraud and demonstrated that she would not have consented to sex if she had known the truth of his being HIV positive.
Consent is not present where it is obtained by the exercise of authority over the victim or by threats or fear of the application of force to the victim or another person, or by a previous application of force to the victim or to another person.
In some situations, such as sexual assaults, the accused person will put forward the defence that they believed there was consent to the action they took.
In such cases, the court will look at all the surrounding circumstances:
- Was there some sort of power imbalance between the victim and the accused, such as employee-employer)?
- Were there threats of harm?
- To what extent might intoxication have removed the element of consent?
Charges relating to assault become more serious based on the amount of force applied and the result to the victim.
Assault causing bodily harm is a more serious charge than common assault, and it arises where there is some level of injury to the victim.
Assault with a weapon is also a separate, more serious charge.
Aggravated assault, torture, unlawfully causing bodily harm, assault on a peace officer and sexual assault are all more serious forms of assault outlined in the Criminal Code.
