Charged With Assault in Toronto: The First 72 Hours

By Robb MacDonald

The Short Answer

If you have just been charged with assault in Toronto, there are four things to do in the first 72 hours, in this order:

1. Say you want to speak to a lawyer, then stop talking. Those are two separate steps and people routinely do the first and not the second.
2. Read your release conditions before you leave the station, and keep the paper. Breaching them is a new criminal offence, prosecuted separately from the assault.
3. Preserve evidence now. Photographs, messages, and surveillance video have short lives. Some of it is gone within days.
4. Write down what happened while you remember it, and give it to your lawyer, not to anyone else.

Everything below explains why each of those matters, and what is coming next.

What You Have Actually Been Charged With

"Assault" covers a range of charges that carry very different consequences, and the wording on your paperwork matters. Assault is defined in section 265 of the Criminal Code, and it is broader than most people expect: it includes applying force intentionally without consent, and it also includes attempting or threatening to apply force by an act or gesture where you have, or appear to have, the present ability to carry it out. No injury is required. No contact is required.

• Assault, section 266. The base offence. It is hybrid, meaning the Crown elects to proceed summarily or by indictment. On indictment the maximum is five years.
• Assault with a weapon or causing bodily harm, section 267. Also hybrid, with a maximum of ten years on indictment. Since 2019 this section expressly includes choking, suffocating or strangling, which is charged frequently in domestic files and is treated seriously.
• Aggravated assault, section 268. Wounding, maiming, disfiguring, or endangering life. Straight indictable, maximum fourteen years.
• Uttering threats, section 264.1. Often laid alongside an assault count rather than instead of one.

The Crown's election between summary and indictable procedure affects which court hears the case, whether you can elect a jury, and the sentencing range. It is not fixed at the moment of charge, and it is one of the things that can be discussed with the Crown later.

Whether You Will Be Released, and On What Terms

Most people charged with a first assault are released by police rather than held. Since the 2019 bail reforms, section 493.1 requires every officer, justice and judge to give primary consideration to releasing an accused at the earliest reasonable opportunity, on the least onerous conditions appropriate in the circumstances, including conditions the accused can realistically comply with. That last phrase matters, and it is worth raising if a proposed condition is unworkable for you.

If you are held, section 503 requires that you be taken before a justice within 24 hours where one is available. That is the bail hearing, and it is not a formality. What is put together for it, particularly the release plan and the surety, tends to decide the outcome.

Read the conditions. Whatever form your release takes, it will come with terms, and in an assault file those almost always include no contact with the complainant and often a condition not to attend a specific address. Breaching a release condition is a separate offence under section 145, prosecuted on its own, and it can be proved even where the underlying assault charge later collapses. A single well-meant text message is the most common way people turn one charge into two.

"No contact" means no contact of any kind. Not directly, not through a friend or a relative, not through social media, and not because the complainant contacted you first. If circumstances have changed and the condition no longer makes sense, the route is a variation, applied for properly, and not an informal arrangement between the two of you.

If It Is a Domestic Charge, the Rules Are Different in Practice

There is no offence in the Criminal Code called "domestic assault." It is charged as assault under the ordinary sections, but Ontario treats domestic files through a dedicated stream with its own Crown policies, its own courts, and much less discretion at the front end. Charges are typically laid whenever police attend and find reasonable grounds, regardless of what either person wants at the scene, and withdrawal is uncommon early on.

The practical consequences arrive fast: a no-contact condition that can exclude you from your own home, arrangements about children that have to be worked out around a criminal release order, and a parallel family law process that moves on its own schedule. See our page on domestic assault defence for how these files are handled.

The Complainant Cannot Drop the Charge

This is the single most common misunderstanding, and acting on it causes real damage. In Canada charges belong to the Crown, not to the complainant. A complainant can tell the Crown they do not wish to proceed, and that is information the Crown will consider, but the decision to continue or withdraw is the Crown's alone. A complainant who recants may still be summonsed and required to testify.

What follows from that is important: contacting the complainant to ask them to "drop it" does not end the case. It breaches your release conditions, it can support a fresh charge of obstruction or witness interference, and it hands the Crown evidence on the assault itself. If someone has told you this is worth trying, they are wrong.

Evidence That Disappears If Nobody Asks for It

This is the real reason the first 72 hours matter more than any other three days in the case. Much of what could help you is held by people with no obligation to keep it.

• Surveillance video. Most private systems in bars, lobbies, shops and buildings overwrite on a loop, sometimes as short as 72 hours and commonly within 30 days. A written preservation request has to reach the holder before the loop comes around. Once it is overwritten it is gone permanently, and no court order recovers it.
• Photographs of injuries, or of their absence. Photograph any marks on you, and do it the same day and again a few days later. In a case where both people allege they were assaulted, this is often the only objective record.
• Messages. Texts, direct messages and call logs before and after the incident. Back them up rather than relying on the device, and never delete anything, which looks far worse than whatever the messages say.
• Witnesses. Names and contact details, collected now. People move, change numbers, and lose the details within months.

Give all of it to your lawyer. Do not approach witnesses yourself, particularly in a domestic file, where it can be characterised as interference.

What Happens Next in the Court Process

Your first appearance is administrative. You will not be asked to plead, no evidence is heard, and the case is not decided. Its purpose is to confirm counsel and set the case down for disclosure. You do not have to resolve anything that day, and nobody should be pressuring you to.

Disclosure is where the case actually begins. The Crown has a constitutional duty to disclose all relevant material in its possession, whether it helps or hurts the prosecution, under the rule from R. v. Stinchcombe, [1991] 3 S.C.R. 326. In an assault file that means the officers' notes, the complainant's statement, any 911 recording, photographs, medical records where relevant, body-worn and in-car footage, and the record of any prior calls to the address. Reported Canadian decisions, including Stinchcombe, are freely searchable on CanLII.

Assault cases are frequently won on inconsistencies between the first statement, the later statement, and the physical evidence. Those inconsistencies are only visible once the disclosure is in hand and someone has read all of it properly.

Self-Defence, and the Limits of Consent

Self-defence is set out in section 34 of the Criminal Code, rewritten in 2013 into a three-part test: you believed on reasonable grounds that force or a threat of force was being used against you or another person, you acted for the purpose of defending yourself or that person, and what you did was reasonable in the circumstances. The section then lists the factors a court weighs, including the nature of the threat, whether weapons were involved, the relative size and age of the people involved, and any prior history between them.

Consent has limits too. Two people who agree to a fight do not thereby make it lawful: at common law, following R. v. Jobidon, [1991] 2 S.C.R. 714, a person cannot consent to the intentional infliction of serious bodily harm. "He wanted to fight" is not the complete answer people assume it is.

Get Advice Before You Do Anything Else

The first 72 hours are the window in which the cheapest and most effective work gets done: preservation letters go out, conditions get varied before they cause a breach, and a record is made while memories are intact. None of that is available later on the same terms.

Robb MacDonald has practised criminal defence for more than twenty years, earned his J.D. at Queen's University in 2006, was called to the Ontario bar in 2007, and trained under Edward Greenspan QC. He is a two time provincial advocacy champion (Arnup Cup, OTLA Cup) and is in court roughly five days a week. Every Ontario lawyer is regulated by the Law Society of Ontario.

If you have been charged, call (416) 315-1505 or email rm@lawintoronto.com. The office is at 130 Spadina Ave, Suite 606, Toronto ON M5V 2L4, and Robb is available day and night. You can also request a confidential consultation.