Suppose someone threatens me and I tell them that I have a concealed weapon and I'm willing to use it to defend myself (when I in fact do not, because that's illegal under section 89 of the Criminal Code), thereby avoiding an altercation. Does this make out an offence like uttering threats or assault? I ask because I've read that in Canada, it can be assault to simply hold up a fist and say "I'm going to hurt you".
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2 Answers
Assault requires an act or gesture, not mere words
Whether you have lied or not is irrelevant to whether the offence of assault was committed in the circumstances you described.
The relevant section of the Criminal Code is s. 265(1)(b):
A person commits an assault when ... 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
This requires an "act or gesture." See R. v. Byrne, [1968] 3 CCC 179:
There must be a threatening act or gesture and no mere words can amount to an assault.
It can be assault to hold up a fist and say "I'm going to hurt you"
You are correct, however, that it can be assault to hold up a fist and say "I'm going to hurt you." Although, there must be more: the threatener must also cause the other person to believe that the threatener has the present ability to actually carry out the threat. As an example, someone was found guilty of assault when he "stood up, clenched his fists and said 'Let’s go'" (R. v. Brogan, 2013 MBQB 6).
Uttering threats
The circumstances you describe more clearly make out the offence of uttering threats. See Criminal Code, s. 264.1:
Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat ... to cause death or bodily harm to any person
Note that, unlike assault, there is no requirement that the recipient feel threatened. It is enough that the words were threatening words, that they were intended to be threatening, and that they were received by someone. Whether particular words are threatening is assessed in consideration of all of the circumstances, including:
a) the actual words spoken;
b) the circumstances in which the words were uttered;
c) the manner in which they were spoken;
d) the person to whom they were addressed and that person’s situation; and
e) the speaker and that person’s situation
(R. v. Narwal, 2013 BCSC 340 at para. 16)
Self-defence
Any act that would otherwise be an offence may be justified or excused as self-defence if the elements of self-defence are made out. This involves a case-by-case assessment of all of the circumstances. The framework for the analysis has been presented in several other answers: 1, 2, 3, 4. There is no need to repeat here.
Yes
Unless you are under a specific obligation to be truthful, you can tell lies. You can lie about anything: your sexual prowess, your income, whether you own a yacht, and that you are carrying a concealed weapon.
However, you cannot commit assault:
An assault is any act — and not a mere omission to act — by which a person intentionally — or recklessly — causes another to apprehend immediate and unlawful violence: R v Burstow; R v Ireland [1998] 1 AC 147. Thus it is the fear which is the gist of assault.
How you tell the person you have a concealed weapon matters. If you do it in such a way that they reasonably believe that you intend to use it on them soon and unlawfully, that's assault.
