Defences To Assault

If you have been charged with assault, you may have a few defences available to you. Here are three of the most common defences that are used in criminal court:

Consensual or Mutual Fight

If you and the other person both agreed to engage in a fight, this may be a defence to an assault charge. However, it is important to note that you cannot agree to bodily harm. If one of the parties involved in a consensual fight suffers bodily harm, you could be charged with assault causing bodily harm and there is no consensual or mutual defence to that. Keep in mind that the agreement must be mutual and both parties must have consented to the fight.

Mistaken Belief in Consent

If you believed that the other person was consenting to a fight, but were mistaken, this may be a defence to an assault charge. For example, if you touched or hit someone in a playful manner and thought they were consenting, but they were not, this may be a defence. However, the objective facts of the situation must point to their consent.

Self-Defence

Self-defence is one of the most common defences to assault in Canada.

According to the Canadian Criminal Code, individuals have the right to protect themselves or others from harm. This defence can be used when someone has applied force to you or is making movements to assault or threaten you and you reasonably apprehend or perceive that they are going to assault you. To successfully invoke self-defence, you must have used reasonable force to defend or protect yourself. It is important to note that self-defence is a very difficult defence and is more complicated than one would think. You must have acted out of necessity and not out of revenge or anger. The force used must be proportionate to the threat and must not exceed what is necessary to defend yourself or others.

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Video Transcription:

Our law firm represents a lot of people who have been charged with assault. Bar fights, domestic assaults and fights with strangers on the streets, you name it. What are some of the defences to an assault charge? Aside from the fact that an accused might claim “it never happened” and the alleged victim is simply making up a story, which is always a defence (i.e. “I didn’t assault anyone. It never happened”), what are the 3 defences if you did actually apply physical force to someone?The first defence is it could be a consensual or mutual fight. For example, you may have engaged in a consensual fight where both parties specifically agreed to engage in a fight.  For example, you both agreed to step outside the bar and you both agreed to a “fair” fist fight and no one was hurt. By the way, you cannot agree to bodily harm. If one of the parties involved in a consensual fight suffers bodily harm (I cover this issue in detail in another video), you could be charged with assault causing bodily harm and there is no defence to that.   However, certainly you can agree to a fight as long as no one is harmed.  Another example, is two parties agree to a play fight or wrestling match for sure.  You might engage in a fight with your brother and it is consensual.The second defence is a mistaken belief in consent. You reasonably apprehended or thought the other person was consenting to a fight, but were honestly mistaken that the other person was consenting. I won’t give examples, but certainly I can think of scenarios where that could happen where you could have a mistaken, but honest belief that someone was consenting that you could assault them. For example, you touched them in some manner or even hit them in some manner of play fighting, etc.  but in their own mind they were perhaps not consenting.  However, they were causing you to believe that they were consenting in some fashion or the objective facts of the situation pointing to their consent.

The third deference to assault of course is the self-defence biggie that which I have done a YouTube video about. I am going to continue to do a further series of videos on self-defence because it is an important area of law, but self-defence is where you have been assaulted by someone else or you thought they were about to assault you and you used reasonable force to defend or protect yourself.  Someone has applied force to   your or is making movements to assault or threaten you and you reasonably apprehend or perceive that they are going to assault you.  i.e.  you are about to be assaulted by someone and you defend yourself using reasonable force.  This essentially what self-defence is all about

So those are the 3 big defences on how to defend yourself for an assault charge in the Canadian criminal courts.