Section 86 - Assault and battery

(1) A person makes an assault and battery on another person, if without the other person’s consent, and with the intention of causing harm, pain, or fear, or annoyance to the other person, or of exciting the other person to anger, that person forcibly touches the other person.

(2) The application of subsection (1) is subject to the following provisions:

(a) where the consent of the other person to be forcibly touched has been obtained by deceit, it suffices with respect to intention that the touch is intended to be a touch that is likely to cause harm or pain, or is intended to be a touch that, but for the consent obtained by the deceit, would have been likely to cause harm, pain, fear or annoyance, or to excite anger;

(b) where the proper person is insensible, unconscious, or insane, or is, by reason of infancy or any other circumstance, unable to give or refuse consent, it suffices, with respect to intention,

(i) that the touch is intended to cause harm, pain, fear or annoyance, or

(ii) that the touch is intended to be a touch that would be likely to cause harm, pain, fear, or annoyance to, or to excite the other person’s anger, if that person were able to give or refuse consent, and were not consenting;

(c) the slightest actual touch suffices for an assault and a battery, if the intention is an intention as is required by this section;

(d) a person is touched, within the meaning of this section, if the body is touched, or if the clothes or any other thing in contact with the body or with the clothes on the body are or is touched, although the body is not actually touched; and

(e) for the purpose of this section, with respect to intention to cause harm, pain, fear or annoyance, it is immaterial whether the intention is to cause the harm, pain, fear, or annoyance by the force or manner of the touch itself or to forcibly expose the person, or cause that person to be exposed, to harm, pain, fear, or annoyance from any other cause.

Illustrations

Subsection (1)

1. A strikes B, or spits upon B, or causes a dog to bite B, or in any manner causes B to fall or be thrown on the ground. Here, if A’s intention was to cause harm, pain, fear or annoyance to B, or to excite B’s anger, A commits an assault and battery;

2. A puts A’s hand on B’s shoulder in order to attract the attention of B, but does not use unnecessary force. A has not committed an assault and battery.

Subsection (2)

1. A under false pretence of surgical treatment induces B to consent to harm or pain. A commits an assault and battery;

2. A kicks B, who is insensible. A commits an assault and battery even though the kick does not cause pain to be felt by B on B recovering sensibility;

3. A pushes B so as to cause B to fall into water. A commits an assault and battery although the push is so slight as not of itself to be material.