Battery: What Does it Mean in Canadian Law?

By Last Updated: July 31, 2023

Battery What Does It Mean in Canadian LawUnderstanding the legal distinctions between criminal offences is essential for navigating the intricacies of the Canadian legal system. When it comes to physical altercations, the terms “assault” and “battery” are often used interchangeably, but it is important to recognize their differences within the Canadian context. Assault is a recognized offence in Canadian law, battery is not. Consequently, it is more appropriate to examine the variance between assault and assault causing bodily harm to gain a comprehensive understanding of these legal concepts and their implications.

Assault vs Battery: What is the difference?

Assault and battery are two distinct legal concepts, although they are often used interchangeably in common parlance. In Canada, assault refers to the intentional act of applying force to another person without their consent or the act of threatening to apply force that causes a reasonable fear of imminent harm. It is important to note that physical contact is not a requirement for assault. Battery or assault causing bodily harm involves assault with a weapon, the threatened use of a weapon, or assault that has caused any damage that interferes with a person’s health and well-being beyond a temporary nature. The concept of bodily harm extends beyond minor or superficial injuries and encompasses more substantial physical impairments that have a lasting impact on a person’s overall health and functioning.

The primary distinction between assault and assault causing bodily harm lies in the nature of the offence. Assault causing bodily harm is categorized as a crime involving physical force and resulting injuries, rather than psychological harm. In cases where one person threatens to inflict bodily harm upon another, it would be categorized as assault, as it involves the intention to apply force but does not necessarily result in physical injury. Assault causing bodily harm, however, specifically refers to situations where physical harm and injury are inflicted upon the victim.

What is Battery (Assault Causing Bodily Harm)?

Battery, as a distinct concept, is not explicitly defined in the Canadian Criminal Code. However, the concept of battery can be understood within the provisions of Section 267 of the Criminal Code, which deals with the offence of assault with a weapon or causing bodily harm. This section establishes that an accused person may be charged with assault if they carry, use, or threaten to use a weapon or an imitation thereof, cause bodily harm to the complainant, or chokes, suffocates, or strangles the complainant.

Within the context of this provision, the element of causing “bodily harm to the complainant” represents the essence of battery within an assault charge. It signifies a higher degree of physical harm inflicted upon the victim. In contrast, a simple assault charge may not necessarily involve bodily harm or the direct “use of force,” thus lacking the explicit notion of battery within the scope of the law.

It is important to note that under Canadian law, no one can legally consent to bodily harm. This firmly establishes the provision of “without consent” inherent to the concept of battery within the offence of assault with a weapon or causing bodily harm. While battery may not be explicitly defined as a standalone offence, its essence is encompassed within the elements and implications of assault with a weapon or causing bodily harm in the Canadian legal framework.

Examples of Battery (Assault Causing Bodily Harm) include:

  • Nursing Home Abuse: Instances where individuals responsible for the care of residents in nursing homes engage in physical mistreatment, such as hitting, pushing, or restraining residents against their will, constitute battery.
  • Attempted Rape: Any deliberate and non-consensual attempt to engage in sexual activity, involving the use of physical force or coercion, falls under the category of battery. The act of forcefully attempting to engage in sexual intercourse without the other person’s consent is a grave violation of their bodily autonomy and constitutes battery.
  • Head Injuries or Concussions: If someone deliberately strikes another person in the head with significant force, causing head injuries, concussions, or other substantial harm to the victim’s brain or skull, it would be deemed battery (assault causing bodily harm).
  • Unwanted Touching: Battery encompasses situations where an individual touches another person without their consent. For example, if someone forcefully grabs another person, touches them inappropriately, or engages in any physical contact without their explicit consent, it would be considered battery.

What is Assault?

Assault, as defined by Section 265(1) of the Canadian Criminal Code, encompasses various actions that involve the application of force without the consent of another person. It includes three primary scenarios:

Firstly, assault occurs when an individual intentionally applies force, directly or indirectly, to another person without their consent. This can include physical acts such as hitting, pushing, or any other intentional physical contact without the other person’s agreement.

Secondly, assault encompasses situations where an individual attempts or threatens, through acts or gestures, to apply force to another person. To constitute assault, there must be a reasonable belief, based on objective grounds, that the person has the present ability to carry out their intention.

Lastly, assault is committed when a person openly wears or carries a weapon or an imitation thereof while accosting or impeding another person or engaging in begging. The presence of a weapon or imitation thereof, in conjunction with accosting or impeding someone or begging, can contribute to the offence of assault.

In summary, assault, according to Section 265(1) of the Canadian Criminal Code, encompasses the intentional application of force without consent, attempted or threatened force, and certain actions involving the wearing or carrying of weapons while accosting, impeding, or begging.

What is the difference between Assault and Assault Causing Bodily Harm?

A crucial distinction between assault and assault causing bodily harm lies in the absence of consent and the severity of physical harm inflicted upon the victim. Consent cannot be given for assault causing bodily harm, as it involves significant harm beyond what is agreed upon in consensual fights. In certain circumstances, when two adults mutually agree to participate in a fight, the physical force applied during the fight is considered consensual and not classified as assault. However, if one participant were to cause significant bodily harm to the other, they could face a charge of assault causing bodily harm. It’s important to note that activities like MMA or boxing, where participants consent to controlled combat within defined rules, are not considered assault as long as they avoid inflicting severe bodily injury.

Nevertheless, if a consensual fight escalates and causes serious bodily harm, the injured party is no longer able to give consent for such harm. Bodily harm, within the context of assault causing bodily harm, encompasses injuries that interfere with an individual’s health or comfort, such as broken bones, cuts, lacerations, and head injuries. It is essential to distinguish that assault causing bodily harm primarily pertains to physical force and injury, rather than psychological damage. Threatening bodily harm constitutes assault rather than assault causing bodily harm, as it does not involve actual physical force or injury. Understanding these distinctions is vital in accurately assessing the nature and severity of the offence within the legal framework.


Defences to Assault and Battery 

In the Canadian legal context, there are various defences that can be raised in relation to assault and battery charges. These defences aim to challenge the prosecution’s case by providing justifications or excuses for the accused’s actions. Here are some commonly recognized defences:

  • Self-defence: The accused may argue that they acted in self-defence to protect themselves or others from imminent harm. This defence requires demonstrating a reasonable belief in the necessity of using force to prevent harm.
  • Reasonable doubt: Experienced criminal lawyers meticulously scrutinize every aspect of a case, seeking any factor that could cast doubt on the evidence presented. These doubts serve to weaken the prosecution’s case, as a conviction must meet the legal standard of proof “beyond a reasonable doubt.” By challenging and questioning various elements, such as the reliability of witnesses, the credibility of evidence, or the consistency of accounts, skilled defence attorneys strive to create reasonable doubts that can potentially lead to a favourable outcome for their clients.
  • Consent: In certain circumstances, consent can serve as a defence to assault charges. If the alleged victim willingly and voluntarily consented to the physical contact or activity that led to the assault, it may be argued that the accused should not be held criminally liable.
  • Lack of Intent: Battery requires intentional physical contact. If the accused can establish that the contact was accidental or unintentional, it may serve as a defence against battery charges.
  • Charter Rights Violation: When police or prosecutors make mistakes that infringe upon a suspect’s Charter Rights, it can have profound implications for the integrity of their case. While errors are inherent to human nature, the violation of Charter Rights can cast doubt on the entire foundation of the prosecution’s argument. Charter Rights violations, such as unlawful search and seizure, coerced confessions, or denial of the right to legal counsel, can compromise the fairness of the legal proceedings and potentially lead to the dismissal of charges or exclusion of crucial evidence.

Frequently Asked Questions

What is the punishment for Assault?

In Canada, the punishment for assault can vary depending on the severity of the offence and other factors. Assault offences are categorized into different levels, including simple assault, assault causing bodily harm, and aggravated assault. The potential punishments for assault in Canada are outlined in the Criminal Code and are subject to judicial discretion.

Simple Assault: This is a summary conviction offence with a maximum penalty of up to 6 months imprisonment, a fine of up to $5,000, or both. If prosecuted by indictment, the maximum penalty increases to 5 years imprisonment. Most offenders in simple assault cases typically avoid jail time.

It’s important to note that these are general guidelines, and the specific penalties can vary based on the circumstances of each case. The court considers factors such as the severity of the injuries, the presence of weapons, the accused’s criminal history, and other relevant factors when determining the appropriate punishment. Additionally, the court may consider alternative sentencing options, such as probation, fines, or community service, depending on the circumstances and the offender’s background.

What is the punishment for Battery?

Battery (Assault causing bodily harm): This entails significantly harsher penalties in Canada. If charged as a summary conviction offence, the maximum sentence is 18 months of imprisonment. However, when treated as an indictable offence, the maximum penalty upon conviction escalates to 10 years of imprisonment. Similar penalties apply to crimes equivalent to sexual assault.

Aggravated Assault: Aggravated assault involves causing serious harm, disfigurement, or endangering the life of the victim. It is a serious offence carrying a maximum penalty of up to 14 years imprisonment. Aggravated assault represents the most severe form of assault in terms of both the harm inflicted on the victim and legal consequences. Aggravated assault is exclusively prosecuted as an indictable offence.

Can I go to jail for Assault or Battery?

The possibility of going to jail for assault or assault causing bodily harm (battery) exists in Canada. The severity of the offence, the circumstances surrounding the incident, and the individual’s criminal history are crucial factors in determining the potential outcome. Assault, depending on the level of harm inflicted, can lead to imprisonment for up to 6 months for simple assault or up to 14 years for aggravated assault. Assault causing bodily harm (battery) is subject to penalties with a maximum sentence of 18 months for a summary conviction or up to 10 years for an indictable offence. It’s important to note that these are general guidelines, and the specific penalty will depend on the unique circumstances of the case as determined by the court. Seeking legal advice from a qualified professional is essential to understand the potential consequences and explore defence strategies that may mitigate the charges or penalties involved.

About The Author

Michael Oykhman

Managing Partner

Michael Oykhman is a senior lawyer and founder of Strategic Criminal Defence, a full-service criminal law firm with central law offices across Western Canada and Ontario.

My professional experience consists of countless court appearances and thousands of successful defences and satisfied clients. Over the last 10 years, I have worked to build a law office where all the lawyers share our collective experience, resources, and passion to help people. Our team approach to legal representation is client–rather than only law–centred. We look for opportunities to add value to our clients through strategic thinking and creative solutions.

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