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What the Law says about Physical AbuseSome forms of physical abuse are criminal offences as described in the Criminal Code of Canada (which applies in all provinces and territories). The criminal offences listed below cover many of the physically abusive actions that can be inflicted on older adults. These are general descriptions of legal concepts. There are many individual and separate offences some of which are very similar to one another. Sometimes one action can fit the definitions of more than one offence and may lead to multiple charges against the alleged abuser. Examples of criminal offences that may apply to different forms of physical abuse include the following.
Assault occurs when one person intentionally applies force to another person without that person's consent. Assault can also occur if the individual merely threatens to apply force and the other person reasonably believes that he or she has the ability to carry out the threat. For example:
Over-medicating someone can also amount to assault.
Assault with a weapon is an offence that occurs when a person carries, uses, or threatens to use a weapon (or something that looks like a weapon) during an assault. For example, pointing a gun at someone may be considered assault with a weapon.
Assault causing bodily harm is an offence that occurs when the force used during an assault causes a physical harm or injury that interferes with health or comfort and is more than just trivial or minor.
Aggravated assault occurs in circumstances where a person wounds, maims, disfigures, or endangers the life of another. For example: punching someone is assault, but punching someone until they loose consciousness could be aggravated assault.
If an individual has a legal duty, he or she must perform that duty in a way that does not endanger the lives or safety of others. Incorrectly performing the duty or failing to perform the duty may be “negligent” (in other words, they can be held responsible for not doing their duty). If the person with duty behaved even more badly and showed complete disregard for someone’s life or safety by doing something (or not doing something) when there was a legal duty to do, or not do, the act, that person could be more than just “negligent”, they could be “criminally negligent.” Depending on how severe the criminal negligence was, it can lead to even greater punishment: for example if the negligence resulted in bodily harm or if it resulted in death. In addition, criminal negligence can be a form of something called “culpable homicide”. So, if someone dies as a result of an act of criminal negligence, the person who committed the act could be charged with murder. In order to establish that criminal negligence has been committed it is not necessary to show that the accused intended to be negligent. It is enough to show he or she was indifferent as to what happened. A court will look at the surrounding circumstances of a particular case to determine whether the conduct of an accused was reasonable.
Failure to Provide Necessities of Life The term “necessities of life” means those things necessary to preserve life. For example: food, shelter, heat, and medical assistance. Individuals have a positive legal obligation to provide their dependents with such necessities of life. In the case of an older adult who cannot provide for him- or herself, this means that a spouse, common-law partner, or other adult caregiver must provide such necessities. A person is guilty of this offence if his or her failure to provide the necessities of life endangers the life or health of the dependent. However, before coming to a decision, the court will consider whether or not the provider was capable of supporting his or her dependents and whether the provider’s behaviour was a marked departure from the standard of a reasonable person in the same situation as the provider.
Sexual assault is an assault that takes place within a sexual context and violates the sexual integrity of the victim. Whether or not the context is sexual will depend upon a number of factors, including: the part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and the intent of the person committing the act.
This occurs when there is sexual assault while using, carrying or threatening to use a weapon.
This occurs when there is a sexual assault that wounds, maims, disfigures or endangers someone's life.
Although we often think of murder as occurring when a person plans to kill someone, this need not be the case. The accused does not need to have specifically intended to kill the other person for the act to be murder. For example: murder can occur when one person causes the death of someone through another intentional act such as assault or theft. It is sufficient that the accused knew his actions could harm another person and that death was a likely consequence. If the accused planned and consciously decided to kill the other person then the murder is first degree and is more severely punished.
This crime occurs when there was no specific intent to kill. For example, murder charges can be reduced to manslaughter when the accused establishes that s/he was provoked.
Unlawfully Causing Bodily Harm Bodily harm is any hurt or injury that interferes with a person’s health or quality of life. There is a distinction between lawfully and unlawfully causing bodily harm because many medical procedures cause bodily harm but these procedures are lawful and may be for the overall benefit of the patient.
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