Award-winning actor Will Smith shocked the crowd (and the world) at the 2022 Oscars when he slapped Chris Rock after the comedian made a joke at the expense of Smith’s wife, Jada Pinkett Smith. The joke was about Pinkett Smith’s baldness—which is caused by the medical condition alopecia.
While it is reported that Rock decided against filing a police report, the event led many to question whether there could be legal consequences for Smith’s actions.
In the United States, legal experts have already weighed in, reasoning that, if charged, the chances of prosecution are slim. If Smith was prosecuted, it is expected that he would face a misdemeanour battery count, which carries a maximum of six months in jail.
But what if this happened in Canada? How might our legal system respond if Will Smith slapped Chris Rock on Canadian soil?
In short, had this occurred in Canada, it is almost certain that charges would be laid against Will Smith…With a strong prospect of conviction.
Would Will Smith be Charged with Assault in Canada?
Assault can be defined as the intentional application of force to another person, either directly or indirectly, without the other person’s consent.
This means that assault can encompass many behaviours including grabbing, shoving, kicking, punching, and—you guessed it—slapping.
In other words, Will Smith’s actions fall squarely within the definition of assault found in section 265(1)(a) of the Criminal Code of Canada (the “Code”):
What the Crown would need to prove beyond a reasonable doubt can be reduced to three questions:
- Did Smith apply force to Rock? It is clear from the video that Smith struck Rock in the face, which constitutes an application of force.
- Did Smith apply this force intentionally? Again, based on the video evidence, Smith appears to slap Rock deliberately and intentionally.
- Did Smith apply this force without Rock’s consent? This slap was not part of a consensual fight, nor was it a planned ‘bit’ between the two performers.
Consent and intentionality will be further discussed below under the defences heading.
Does Chris Rock Need to Cooperate for the Police to Lay Charges?
The Los Angeles Police Department (LAPD) has confirmed that Rock declined to file a police report. Additionally, the Los Angeles City Attorney’s Office has stated that it cannot bring charges without a police referral.
According to US defence lawyer Alan Jackson, a former LA County prosecutor, although police could technically open the investigation, they wouldn’t do so without Rock’s participation.
Therefore, the decision regarding whether to lay charges seems to be largely policy-based, at least in the US. That is, even if there is ample evidence of a crime, apparently police won’t act without the complainant’s participation. In other words, unless Rock changes his mind and files a report, it appears that police will not be pursuing charges against Smith.
Conversely, charges would very likely be laid in Canada, irrespective of Rock’s wishes.
No blanket policy exists in Canada requiring the alleged victim’s participation to justify charges. Once police are notified of a possible offence and satisfy themselves that one was committed, they are highly likely to proceed with charges unless there are compelling reasons not to (like an inability to prove the case). In fact, particularly in domestic conflict cases, many police departments have a policy of laying charges even in the face of protestation by the alleged victim.
Simply put, in Canada, it would be up to the police or Crown Prosecutor’s office—not Rock’s—to determine if charges should be laid. Once the charges are laid, Rock would simply become a witness in the case.
While sometimes not having a cooperative complainant can be fatal to a case, in this situation there is more than enough evidence to proceed with charges absent Rock’s cooperation. For example, any one of the witnesses who saw the assault can be called to testify against Smith, even if Rock suddenly developed amnesia at trial. Moreover, the video of the incident itself, if properly tendered into evidence, can be enough to prove the offence.
How Strong Would the Case Against Will Smith be in Canada?
In deciding whether to lay the charges, the police/prosecutor must consider whether there is a reasonable prospect of conviction.
The prosecutor will also consider whether proceeding with the charge is in the public’s best interest. Prosecutors do not want to send the message that someone can publicly assault another person without any consequences.
Not laying charges here would send a dangerous message—that a crime that fits squarely within the Code can go unaddressed.
Notably, former LA District Attorney Jackson weighed in on the effect Smith’s celebrity status may have on the legal consequences, stating;
“[i]f some Joe Blow committed this act in front a police officer, would he be able to walk away from it? Probably not.”
This is also a message the Crown would want to avoid sending. It is an opportunity to show that nobody, not even an Academy Award winner, is exempt from the law.
This case is what you might call a ‘slam dunk’ case for the prosecution. The entire incident—start to finish—is on video. That video alone is sufficient to warrant charges.
If the video does not suffice, there is no shortage of witnesses. It does not need to be Rock who testifies about the assault. Any member of the large Hollywood audience could testify about what they witnessed that evening.
Besides, suppose Rock’s testimony was vital. In that case, the Crown could still subpoena Rock to court and legally compel him to answer questions about the assault.
How Would Common Defences to Assault Apply to Will Smith?
Many celebrities and commentators have weighed in on whether Will Smith’s actions are morally defensible. He was, after all, defending his wife’s honour, right? But understanding, or even empathizing with Smith’s actions is not synonymous with excusing them, never mind making them legally defensible. In law, there is (or at least there should be) a clear separation between “motive” and “intent”.
In Smith’s case, his motive was to defend his wife’s honour. To give all the commentators who have weighed in on the issue looking to prop up Smith’s actions the benefit of the doubt, that’s what most of them are really talking about. Smith’s motive was honourable, and many who have come out in his defence mostly speak to that.
What is much harder to justify, at least legally, is Smith’s actions in satisfying that motive. In the present case Smith’s intent was to strike Rock across the face. It is that immediate intended action that must be legally defensible to give Smith a hope of winning the case in Canada.
We’ll explore some of the most common defences to assault below. Spoiler alert, none would be promising for Smith.
Self-defence, a defence commonly raised in assault cases, can easily be ruled out here. To claim self-defence, Will would have to prove that he had reasonable grounds to believe that force was being used against him or another person.
Although Rock’s words were hurtful, there was simply no force or threat that would have warranted Smith leaving his seat, walking up onto the stage, and slapping Rock.
While technically available on the facts in this case, it would still have to be believed by the judge, which is doubtful based on everything we know.
For the slap to constitute an assault, Rock must not have consented to the slapping. It is evident in this case that consent was not obtained based on the video and audio that reveal the context of the slap.
There was some early speculation, which is now known to be incorrect, about whether the slap was a planned scene between two skilled performers. If that was the case, consent would be a complete defence, absolving Smith of criminal liability.
To constitute an assault, the application of force must be intentional. The video makes it clear that Smith’s actions were deliberate and intentional.
Even if Smith claimed that he only intended to pretend to slap Rock, it would be foreseeable that slapping the air near Rock could result in Rock actually being slapped.
Therefore, the consequences of his actions were foreseeable, and the accident defence would not hold water. Moreover, Smith’s post slap conduct (failing to immediately apologize and doubling down with warnings for Rock to keep Picket’s name out of his mouth) are certainly not consistent with an accidental strike.
To learn more about these defences and how they apply to assault cases more generally, please see our FAQ on the best defences to an assault charge.
Would Will Smith get a Criminal Record in Canada?
While the defences outlined above won’t help in Smith’s situation, that certainly does not mean nothing can be done to help his case.
In fact, people get charged with similar ‘slam dunk’ cases every day. Our lawyers can advocate zealously on their behalf, often resulting in our client not receiving any criminal record.
By taking the rights steps, the fictional Canadian Will Smith could very well have his charges diverted outside of the criminal justice system.
A critical part of eligibility for resolution programs is taking responsibility for one’s actions. Smith’s public apology on Instagram, where he mentioned Rock by name, is a positive first step. But alone, this apology would not be enough.
There are numerous other steps that Smith could take, including seeking out an anger management program and attending counselling. Additionally, community service and charitable donations may be a component of a diversion agreement.
Every case is unique. The defences and considerations that would apply to Will Smith on Canadian soil differ from those that may apply to you or your loved one’s case.
Our dedicated defence lawyers are always available to assist you through the difficult process of facing criminal charges. Please contact our office nearest you to discuss your case.
- What is assault?
- The victim of the assault changed their mind and does not want to press charges. Can they have the charges dropped?
- What are the best defences to an assault charge?
- How can I get my assault charges dropped?