5 years (indictable) / 2 years less a day (summary)
Hybrid offence. Simple assault as an indictable offence creates inadmissibility under IRPA s.36(2). However, with a 5-year maximum (under 10 years), it is not classified as serious criminality under s.36(1) unless the individual received a sentence of 6 months or more in Canada.
The basic definition of assault, covering unwanted force and even a threatening gesture backed by the ability to follow through. The Crown chooses the serious or the lighter route, and immigration law counts the serious one, capped here at 5 years. Five sits under the 10 year line, so a bar fight record is usually ordinary criminality rather than the serious kind.
(1) A person commits an assault when (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or (c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs. (2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault. (3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of (a) the application of force to the complainant or to a person other than the complainant; (b) threats or fear of the application of force to the complainant or to a person other than the complainant; (c) fraud; or (d) the exercise of authority. (4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.