What is assault and battery?

The term “assault and battery” is common in U.S. media but does not exist in Canadian criminal law. Understanding this difference is key if you’re facing charges or trying to make sense of the law in Canada.

• Canada uses a unified definition of “assault” under Section 265 of the Criminal Code, which includes both threats and physical force.

• There is no separate charge for “battery” in Canada; everything from threats to actual contact is simply called assault.

• Assault doesn’t require physical contact—threats, gestures, or actions that cause fear of harm can be enough.

• Assault charges are categorized by severity:

• Simple Assault: Minor contact or threats, no weapon or serious injury.

• Assault Causing Bodily Harm: Injuries that affect health or comfort.

• Aggravated Assault: Serious harm like disfigurement or life-endangering injuries.

• Assault with a Weapon: Involves using or threatening with an object as a weapon.

• Consent matters—but not in serious cases. Victims can’t legally consent to bodily harm or assaults involving weapons.

• Assault charges carry serious consequences including jail, fines, criminal records, and barriers to work and travel.

Don’t let legal myths cloud your understanding. Continue reading to learn how assault is really defined and prosecuted in Canada—and what to do if you’re facing these types of charges.

 

 

What does “assault and battery” mean in law?

A common phrase—but not a Canadian legal term

The phrase “assault and battery” appears frequently in American television shows, movies, and legal dramas, leading many Canadians to believe it represents how our legal system works. However, this terminology creates confusion because Canadian criminal law operates under a completely different framework than American law.

In the United States, “assault” and “battery” traditionally represented two distinct criminal offences. American law typically defined assault as the threat or attempt to cause physical harm, while battery covered the actual physical contact or harm inflicted on another person. This distinction meant that someone could be charged with assault for threatening violence even without making physical contact, or with battery for actual physical contact, or both if they threatened and then followed through.

The phrase became deeply embedded in popular culture because American legal shows and movies dominated entertainment media for decades. When people hear “assault and battery” charges discussed in these productions, they naturally assume the same terminology applies in Canada. This misconception can create real problems for people facing criminal charges in Canadian courts, as they may not understand the actual legal framework they’re dealing with.

Canadian legal professionals often encounter clients who expect to be charged with “assault and battery” based on their understanding of American law. This confusion can affect how people prepare for their cases and understand the potential consequences they’re facing.

 

The U.S. vs. Canadian approach to assault charges

The fundamental difference between American and Canadian approaches to assault charges reflects broader distinctions in how the two legal systems developed and operate. American criminal law evolved from English common law but incorporated elements from various state legal traditions, creating a complex patchwork of laws that vary significantly between jurisdictions.

Canadian criminal law, by contrast, operates under a unified federal Criminal Code that applies consistently across all provinces and territories. This means that assault charges work the same way whether you’re in British Columbia, Ontario, Quebec, or any other Canadian jurisdiction.

Under Canadian law, Section 265 of the Criminal Code defines assault comprehensively to include both the threats and physical contact that American law traditionally separated into assault and battery. This unified approach means that Canadian prosecutors don’t need to distinguish between threatening harm and actually causing it—both actions fall under the single umbrella of “assault.”

The Canadian approach also tends to focus more on the circumstances and consequences of the assault rather than the technical distinction between threats and contact. This means that factors like the severity of harm caused, the presence of weapons, and the identity of the victim (such as police officers) create different categories of assault charges rather than entirely separate offences.

Understanding this difference becomes crucial when dealing with the Canadian criminal justice system, as the legal strategies, potential defences, and sentencing considerations all operate under Canadian law rather than the American framework that many people expect.

 

 

How Canadian law defines assault

Physical force isn’t always required

One of the most important aspects of Canadian assault law that surprises many people is that you don’t need to actually touch someone to be charged with assault. The Criminal Code defines assault broadly enough to include situations where no physical contact occurs.

Section 265 of the Criminal Code establishes that assault occurs when someone intentionally applies force to another person without consent, but it also includes attempting or threatening to apply force if the person has the apparent ability to carry out that threat. This means that raising your fist at someone, making threatening gestures, or creating a reasonable belief that violence is imminent can constitute assault even if you never make physical contact.

The law recognizes that the fear and intimidation caused by credible threats can be just as harmful as actual physical contact. Someone who threatens violence while holding a weapon, for example, commits assault even if they never use that weapon. The victim’s reasonable fear of imminent harm is sufficient to establish the offence.

This broad definition also covers situations where force is applied indirectly. Throwing an object at someone, siccing a dog on them, or causing them to be harmed through some other means can all constitute assault under Canadian law. The key element is the intentional application or threat of force without the other person’s consent.

The consent requirement is particularly important in Canadian assault law. Even minor physical contact can constitute assault if it occurs without consent, while more significant contact might not be assault if it was consensual. This principle explains why activities like contact sports, medical procedures, and consensual intimate contact don’t typically result in assault charges despite involving what would otherwise be unwanted physical contact.

 

Threats and gestures can count as assault

The inclusion of threats and gestures in Canada’s assault definition reflects the legal system’s recognition that psychological harm and fear can be just as serious as physical injury. However, not every threat or angry gesture qualifies as assault under the Criminal Code.

For threats to constitute assault, they must be accompanied by the apparent present ability to carry them out. Simply saying “I’m going to hurt you” during a phone conversation typically wouldn’t qualify as assault because there’s no immediate threat of harm. In this example, the person could be charged with threatening bodily harm under the Canadian Criminal Code which is a separate charge from assault. However, making the same statement while standing close to someone and making threatening gestures could easily meet the legal threshold.

The “present ability” requirement means that courts examine whether a reasonable person in the victim’s position would believe that the threatened harm could occur immediately. Factors like the accused person’s physical proximity, their size and strength compared to the victim, the presence of weapons, and the specific nature of the threats all influence whether the legal standard is met.

Gestures alone can sometimes constitute assault, particularly when they’re combined with other threatening behavior. Raising a fist, making slashing motions across the throat, or reaching for what appears to be a weapon can all support assault charges if they create a reasonable fear of immediate harm.

The courts also consider the context surrounding threats and gestures. The same behavior might be interpreted differently depending on whether it occurs during a heated argument between strangers, a domestic dispute, or a situation involving alcohol or other factors that could escalate violence.

 

Different levels of assault in the Criminal Code

Canadian law recognizes several different levels or types of assault, each carrying distinct penalties and legal consequences. These categories reflect the varying degrees of harm and culpability involved in different assault situations.

Simple assault, also known as Level 1 assault, represents the most basic form of the offence. This covers situations involving minor physical contact, threats, or gestures where no weapon is used and no significant injury occurs. Examples might include pushing someone during an argument, slapping without causing injury, or making credible threats of immediate harm.

Assault with a weapon or causing bodily harm, sometimes called Level 2 assault, applies when the assault involves a weapon or results in injuries that interfere with the victim’s health or comfort beyond what’s merely trivial or temporary. The definition of “weapon” under Canadian law is surprisingly broad, including not just traditional weapons like knives or guns, but also everyday objects used to threaten or cause harm.

Aggravated assault, or Level 3 assault, represents the most serious category and involves wounding, maiming, disfiguring, or endangering the victim’s life. These cases typically involve severe injuries with lasting consequences or situations where the victim’s life was genuinely at risk.

The Criminal Code also creates special categories for sexual assault and assault against peace officers, recognizing that these situations involve additional factors that justify enhanced penalties and specific legal considerations.

 

 

So, what happened to “battery”?

Why Canada doesn’t use that term

The absence of “battery” as a separate offence in Canadian law reflects the historical development of Canada’s Criminal Code and the decision to create a more streamlined approach to assault charges. When Canada’s first Criminal Code was enacted in 1892, the drafters chose to consolidate various forms of assault into a single, comprehensive framework rather than maintaining the traditional English distinction between assault and battery.

This decision represented a deliberate choice to simplify the law and make it more coherent for both legal professionals and the general public. Rather than requiring prosecutors to navigate complex distinctions between different types of harmful behavior, Canadian law allows them to focus on the actual harm caused and the circumstances surrounding it.

The consolidation also reflects a more modern understanding of how assault actually affects victims. Whether someone is harmed through threats, gestures, or physical contact, the psychological and social impact can be similar. By treating these behaviors as part of a single offence category, Canadian law acknowledges that the distinction between fear of harm and actual harm is often less important than the overall impact on the victim.

The unified approach also provides more flexibility for prosecutors and courts when dealing with complex situations that might involve both threats and physical contact. Rather than having to prove separate elements for multiple charges, prosecutors can focus on establishing the overall pattern of behavior and its consequences.

 

The acts that would be called battery are just part of assault in Canada

Everything that American law would classify as “battery”—the actual physical contact and harm inflicted on another person—falls under Canada’s comprehensive assault framework. This means that punching someone, pushing them, or causing any other form of unwanted physical contact gets charged as assault rather than as a separate battery offence.

The Criminal Code’s definition of assault specifically includes “intentionally applies force to another person, directly or indirectly, without that person’s consent”. This language captures all the physical contact that would constitute battery under American law, but it does so within the unified assault framework.

The practical effect is that Canadian assault charges can encompass a broader range of behavior than either assault or battery charges alone under American law. A single assault charge in Canada might include elements of threatening behavior, attempted harm, and actual physical contact, providing a more complete picture of the accused person’s conduct.

This comprehensive approach also means that the severity of assault charges gets determined by factors like the extent of harm caused, the presence of weapons, and the vulnerability of the victim, rather than by whether the case involves threats versus contact. Someone who causes serious physical harm will face more serious assault charges regardless of whether they also made threats beforehand.

The Canadian system also allows for more nuanced charging decisions based on the overall circumstances of the case rather than requiring prosecutors to fit complex situations into narrow categories of assault versus battery.

 

 

Types of assault charges in Ontario

Simple assault (s. 266)

Simple assault under Section 266 of the Criminal Code represents the most common and least serious category of assault charges. However, “least serious” doesn’t mean these charges are minor—simple assault is still a criminal offence that can result in imprisonment and a permanent criminal record.

Simple assault typically involves situations where someone intentionally applies force to another person or threatens to do so without causing significant injury and without using a weapon. Common examples include pushing someone during an argument, slapping or punching without causing substantial harm, grabbing someone’s arm or clothing, or making credible threats of immediate violence.

The key distinguishing factors for simple assault are the absence of weapons and the lack of significant bodily harm. Even if the physical contact is relatively minor, it can still constitute assault if it was intentional and occurred without consent. The law doesn’t require any specific level of force—even touching someone in an unwanted sexual manner or spitting on them can support simple assault charges.

Simple assault is a hybrid offence, meaning the Crown prosecutor can choose to proceed either by summary conviction or by indictment depending on the circumstances of the case. Summary conviction is typically used for minor incidents involving minimal harm and first-time offenders, while indictable proceedings are reserved for more serious cases or repeat offenders.

For summary conviction, the maximum penalty is two years less a day in jail and/or a fine up to $5,000. When proceeded with by indictment, simple assault carries a maximum penalty of five years imprisonment. However, many first-time offenders charged with minor simple assault may avoid jail time or a criminal record entirely, particularly if they have no previous criminal record and the incident involved minimal harm.

 

Assault causing bodily harm (s. 267)

Assault causing bodily harm under Section 267 applies when an assault results in injury that interferes with the victim’s health or comfort and is more than merely transient or trifling. This represents a significant step up in seriousness from simple assault, with correspondingly harsher potential penalties.

The legal definition of “bodily harm” is broader than many people expect. It doesn’t require serious or permanent injury—bruising, scratches, minor cuts, or even temporary pain can qualify as bodily harm if they interfere with the victim’s health or comfort beyond what’s trivial. Canadian courts have found that even bruising without accompanying pain can constitute bodily harm in some circumstances.

Common examples of assault causing bodily harm include punching someone and causing bruising or swelling, pushing someone down stairs resulting in cuts or sprains, throwing objects that cause injury, or any physical altercation that results in visible injuries or ongoing pain. The injury doesn’t need to require medical treatment, but it must be more than completely minor or temporary.

This charge is also a hybrid offence, giving prosecutors discretion in how to proceed. For summary conviction, the maximum penalty is 18 months imprisonment (or two years less a day if the victim is under 16 years old). When proceeded with by indictment, assault causing bodily harm carries a maximum penalty of 10 years imprisonment.

The courts treat these charges seriously because they involve actual harm to victims and often indicate a higher level of violence or aggression than simple assault. Even first-time offenders may face jail time, particularly if the injuries were significant or the circumstances involved additional aggravating factors.

 

Aggravated assault (s. 268)

Aggravated assault under Section 268 represents the most serious category of assault charges and applies when someone wounds, maims, disfigures, or endangers the victim’s life. These charges typically involve severe injuries that are permanent or life-threatening, such as brain injuries, compound fractures, serious cuts requiring surgery, or any injury that puts the victim’s life at risk.

The legal threshold for aggravated assault is significantly higher than for other assault charges. “Wounding” typically means breaking the skin, “maiming” involves permanent injury that affects function, “disfiguring” means altering someone’s appearance permanently, and “endangering life” covers situations where the victim’s life was genuinely at risk even if they ultimately survived.

Examples of aggravated assault might include hitting someone with a baseball bat causing skull fractures, stabbing or cutting someone seriously, causing permanent scarring or disfigurement, pushing someone from a height resulting in life-threatening injuries, or any assault that requires emergency medical treatment or surgery.

Aggravated assault is an indictable offence only, meaning it cannot be proceeded with summarily, and it carries a maximum penalty of 14 years imprisonment. These cases almost always result in significant jail sentences for convicted offenders, particularly when the injuries are severe or permanent.

The courts also recognize that victims cannot legally consent to bodily harm or  aggravated assault, meaning that consent is not a defence to these charges even in situations where it might be relevant to lesser assault charges involving no bodily harm.  For example, if two people both agree to enter into a consensual fight and no bodily harm results from the fight, then consent would be a defence if the police mistakenly charge either of them with assault. 

 

Assault with a weapon

Assault with a weapon is covered under the same section as assault causing bodily harm (Section 267) and applies when someone commits assault while carrying, using, or threatening to use a weapon. This charge can apply even if no actual injury occurs, as the presence of a weapon significantly increases the potential for serious harm and the level of fear experienced by victims.

The Criminal Code defines “weapon” broadly to include anything used, designed to be used, or intended for use in causing death or injury to any person, or for threatening or intimidating any person. This definition encompasses not only obvious weapons like knives, guns, or clubs, but also everyday objects used as weapons, such as bottles, tools, vehicles, or even household items.

The key factor is how the object was used or intended to be used during the assault. A kitchen knife being used to prepare food isn’t a weapon, but the same knife becomes a weapon when used to threaten or harm someone. Similarly, a baseball bat is sporting equipment in most contexts but becomes a weapon when used to assault someone.

Assault with a weapon charges can be laid even if the weapon wasn’t actually used to cause harm. Simply carrying or displaying a weapon during an assault, or threatening to use it, is sufficient. The law recognizes that the presence of weapons dramatically escalates the potential seriousness of any violent encounter and the psychological impact on victims.

Like assault causing bodily harm, assault with a weapon is a hybrid offence with maximum penalties of 18 months for summary conviction (two years less a day if the victim is under 16) or 10 years for indictable proceedings. These charges are treated seriously by courts because of the enhanced danger weapons create and their potential to escalate conflicts into life-threatening situations.

 

 

What to do if you’re charged with assault

Being charged with any type of assault represents a serious situation that requires immediate professional legal assistance. Assault charges can result in jail time, substantial fines, and a permanent criminal record that affects employment opportunities, travel, professional licencing, and many other aspects of your life.

Your first priority after being charged should be contacting a criminal defence lawyer who understands assault cases and the specific procedures used in assault prosecutions. Different types of assault charges involve different legal strategies, potential defences, and negotiation approaches, making specialized knowledge crucial for achieving the best possible outcome.

Early legal intervention becomes particularly important in assault cases because evidence can be preserved, witnesses can be identified and interviewed, and potential defences can be investigated while information is still fresh and available. Many successful assault defences depend on technical details about the incident, witness statements, medical evidence, or police procedures that become harder to establish as time passes.

You should also understand that assault charges often involve complex procedural requirements and strict timelines that must be met to preserve your rights and options. Missing deadlines or making procedural errors can significantly harm your case and limit your defence options.

The consequences of assault convictions extend far beyond the immediate criminal penalties, making it crucial to understand all the potential impacts of different outcomes and resolution strategies. An informed defence approach considers not just avoiding conviction, but also minimizing the broader life consequences of criminal charges.

 

 

Frequently asked questions

Is there any difference between “assault” and “assault and battery” in Canada?

No, there is no legal distinction between these terms in Canada. “Assault and battery” is American legal terminology that doesn’t exist in Canadian criminal law. What Americans call “battery”—the actual physical contact—is simply included as part of “assault” under the Canadian Criminal Code. When Canadians use the phrase “assault and battery,” they’re typically referring to a single assault charge that might involve both threats and physical contact.

 

Can I be charged with assault even if I didn’t hit anyone?

Yes, you can definitely be charged with assault without making physical contact with anyone. Canadian law includes threats and threatening gestures as forms of assault if they create a reasonable belief that harm is imminent and you have the apparent ability to carry out the threat. Raising your fist at someone, threatening violence while holding a weapon, or making credible threats of immediate harm can all result in assault charges even without physical contact.

 

What’s the difference between simple assault and assault causing bodily harm?

The main difference is the extent of injury caused to the victim. Simple assault typically involves minor or no physical harm, while assault causing bodily harm requires injury that interferes with the victim’s health or comfort and is more than merely transient or trifling. Bodily harm can include bruising, cuts, sprains, or any injury that goes beyond completely minor or temporary discomfort. The presence of bodily harm significantly increases the potential penalties and the seriousness of the charges.

 

Can someone consent to assault in Canada?

Consent can be a defence to some assault charges, but there are significant limitations. People can generally consent to minor contact that might otherwise constitute simple assault, such as in contact sports or consensual intimate contact.  A person can also consent to a fight with another person as long as the fight does not result in bodily harm. However, you cannot consent to assault that causes bodily harm or involves weapons, and you definitely cannot consent to aggravated assault. The courts also examine whether consent was truly informed and freely given, and whether it was vitiated by factors like fraud or the threat of harm.

 

What happens if I’m charged with assault against a police officer?

Assault against a peace officer is treated as a more serious offence under the Criminal Code, with enhanced penalties. The law specifically protects police officers and other peace officers who are acting in the lawful execution of their duties. Depending on the circumstances, such as whether weapons were involved or bodily harm was caused, penalties can range from a maximum of 2 years less a day in jail if the Crown elects summarily and up to to 10 years imprisonment if the Crown proceeds by indictment. These charges also often involve additional scrutiny from prosecutors and courts.

 

Will an assault conviction affect my employment or travel?

Yes, assault convictions create permanent criminal records that can significantly impact both employment and travel opportunities. Many employers conduct background checks and may refuse to hire people with assault convictions, particularly for positions involving trust, security, or work with vulnerable populations. International travel can also be affected, as countries like the United States can deny entry to people with criminal convictions. Professional licencing bodies may also impose restrictions or revoke licences based on criminal convictions.

 

 

At Kruse Law Firm, we understand that assault charges can fundamentally impact your future, affecting everything from your immediate freedom to your long-term career prospects and family relationships. Our approach combines thorough knowledge of assault law with practical understanding of how these cases unfold through Ontario’s criminal court system.

We provide comprehensive assault defence services through our offices across Ontario. Our Toronto assault lawyers serve clients throughout the Greater Toronto Area, while our Kitchener assault lawyers provide representation throughout Waterloo Region. For clients in Southwestern Ontario, our London assault lawyers offer local knowledge of regional court procedures, and our Windsor assault lawyers serve clients throughout Essex County and the border region.

Our comprehensive assault defence practice includes extensive resources on understanding types of assault charges and detailed analysis of levels of assault that can help clients understand the specific charges they’re facing and the potential consequences involved.

For immediate consultation regarding assault charges, contact Kruse Law Firm. Early legal intervention can mean the difference between a manageable situation and consequences that affect the rest of your life.