COMMENTARY: Nunavut July 11, 2018 - 10:17 am

Legal Ease, July 11

What is criminal assault?

JAMES MORTON

The concept of criminal assault is a fairly simple one: it is a criminal offence to hit other people.

Unfortunately, as with many legal concepts, the simplicity of a basic assault gets complicated because life is complicated.

First, as a technical matter, an assault takes place whenever you touch someone without their consent. So even putting your hand on someone’s shoulder and telling them off is an assault. Such an assault may be trivial—but it is an assault.

Second, consent is not always straightforward.

Consent means an agreement to the touching. That agreement has to be knowing and given without intimidation.

If someone is so drunk they are unconscious, they cannot give consent. Similarly, someone who has been threatened into agreeing does not legally agree.

So you can, obviously, consent to having sex. But someone who is passed out drunk cannot agree to have sex.

Similarly, someone who has sex because they are scared of being beaten up if they don’t have sex does not give consent.

You can consent to a fight—it’s a bad idea but it’s legal. However, you (probably) cannot consent to a fight leading to a lasting injury or death.

The law limits consent and generally forbids a consent to bodily harm. So a “fight to the death” can never be consented to as lawful.

Consent can also be limited. You can consent to some types of touching, but not other types of touching.

In a hockey game people consent to being checked—but what about illegal body checking? Generally, an illegal check isn’t an assault, but it all depends on the players, what they agreed to and how the game is usually played.

Illegal checking that inevitably leads to serious injury almost certainly is assault.

Similarly, someone may consent to being kissed but not to anything else—and absent consent, sexual activity almost always amounts to assault.

Now, the law accepts that there is an assumed consent to certain touching—say, tapping someone gently on the shoulder to get their attention. Similarly, if you find someone injured and unconscious, you can give them emergency treatment—consent is assumed.

But if the injured person wakes up and says stop, you must stop. And if you know someone does not want to have their shoulder tapped, you shouldn’t tap their shoulder.

Third, sometimes applying force without consent is legally justified. If someone attacks you, it is OK to defend yourself using only the reasonable force needed for self-protection. Of course, what is reasonable is something people can disagree about, and that can lead to all manner of legal argument.

Finally, an accidental touching is not an assault. So if you trip and fall down and in so doing knock someone over, that’s not an assault.

If you get into an accident and hit someone with your snow machine, that’s not an assault—it may be some other crime, especially if you got into the accident while drinking, but it’s not an assault.

What all this boils down to is a recognition that everyone has the right to physical integrity. You cannot touch someone without their permission.

So long as you behave respectfully to others you should be fine. But if you step over that line you may be guilty of an assault.

James Morton is a lawyer practising in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.