R. v. Foti, 2002 MBCA 122
17 While under s. 265(1)(a), an intention to apply force to another person is clearly required, under s. 265(1)(b), a threat is sufficient. As stated in R. v. Horncastle (1972), 1972 CanLII 1320 (NB CA), 8 C.C.C. (2d) 253 at 262 (N.B.C.A.):
It is not necessary to constitute the offence of assault that the accused actually apply force or even intend to do so. It is sufficient if he threatens to do so and has the present ability to do so. Mens rea lies in the intention to threaten not in the intention to carry out that threat.
[underlining added]
18 Similarly, in R. v. Nurse (1993), 1993 CanLII 14691 (ON CA), 83 C.C.C. (3d) 546 at 557, the Ontario Court of Appeal stated:
It is, however, clear that the act of firing a hand-gun in close proximity to a house without the intention of hitting the house but with the intention of threatening the occupants of the house does amount to an assault under s. 265(1)(b) when the shooter has, or causes the occupants to believe on reasonable grounds that he has the present ability to effect his purpose of applying force to them. The threat in this case in the firing of the hand-gun was the communication of the message to the occupants that they would be shot.
19 See also, R. v. Colburne (1991), 1991 CanLII 3701 (QC CA), 66 C.C.C. (3d) 235 at 251 (Que. C.A.), and R. v. Melaragni (1992), 1992 CanLII 12779 (ON SC), 75 C.C.C. (3d) 546 (Ont. Gen. Div.), where those cases held that, even where a bullet misses its intended victim and the victim is unaware of being shot at, the firing of a gun in the direction of the victim will constitute assault under s. 265(1)(b).
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