QUICK TAKEAWAY
Aggravated Assault is a serious criminal offence in Canada and is defined as the intentional application of force, either directly or indirectly, to another person without their consent. Covered by s.268 of the Code it is considered a major assault and can result in a maximum prison sentence of 14 years. If the aggravated assault is sexual in nature, the maximum sentence is life imprisonment. The difference between aggravated assault and assault causing bodily harm is the severity of the injuries sustained. Repeat offenders and those who use weapons in the commission of an aggravated assault can expect harsher sentences. If convicted, a person may also face a weapons ban and have their DNA entered into the National DNA Data Bank.
Table of Contents:
What is Aggravated Assault?
Aggravated assault is considered a level 3 assault. “If an attack “wounds, maims, disfigures or endangers the life of the complainant” you can be charged with aggravated assault, which is an indictable offenceIndictable offences are more-serious criminal offences.
What sets aggravated assault apart from other types of assault is the severity of the injuries inflicted and the potential for life-long, crippling injuries. It should be noted that while endangerment to life must involve an actual risk, it does not necessarily have to result in actual bodily harm.
What is Needed to Convict
In order to win a conviction, the Crown prosecutorLawyers who prosecutes charges on behalf of the Crown must prove beyond a reasonable doubtThe standard that must be exceeded to find someone guilty that there was an intentional application of force and you knew that it could result in bodily harm. The prosecutor must also establish that the injuries were not trivial or temporary and that the damage inflicted will be long-lasting or that the person’s life was in danger.
The Crown must prove there was an intent to cause bodily harm, but they do not need to establish that there was an intent to maim, wound or disfigure.
With any assault charge, it is the Crown’s responsibility to prove that you:
- applied force to someone;
- the victim did not consent to that force; and
- the force was applied intentionally.
Treated as an Indictable Offence
Unlike lesser assault charges which can proceed by summary conviction and result in less severe penalties, aggravated assault is considered an indictable offence. General deterrence is a primary sentencing factor when it comes to serious violent crimes. There is no minimum penalty, with a maximum prison sentence of up to 14 years.
The severity of the punishment could depend on the degree of the assault, the nature of the injuries, whether it was planned, if the assault was gratuitous in nature and your past criminal record.
If you are convicted of aggravated assault you will be subject to a mandatory weapons prohibition order under s.109 of the Code and a mandatory weapon forfeiture order under s.491.
Depending on the circumstance, the Crown can also bring an application to have you declared a dangerous offender, which brings an indeterminate prison sentence. Aggravated assault is also a designated offence requiring you to submit a sample to the National DNA Data BankA repository of DNA profiles of criminal offenders under s.487.051 of the Code.
As well, you could be forced to pay compensation to the victim and you will have a criminal record.
Possible Defence for Aggravated Assault
If you are accused of aggravated assault, your defence lawyer might submit evidence to show your actions were not intentional. There may also be evidence that your arrest was not lawful under the Canadian Charter of Rights and Freedoms. Your lawyer could also argue you were acting in self-defence and did not mean to inflict serious harm. As well, you may not be found guilty of aggravated assault if your actions were taken to protect yourself, your property or other people and their property.
It is important to note those actions would not be justified if you keep attacking someone when they are unable to defend themselves. As well, excessive force cannot be used to protect yourself against someone breaking into your home.
Insights from a
Defence Lawyer
CCH VERIFIEDCéline Dostaler
Insights from Ottawa Lawyer, Céline Dostaler
Strategies To Defend An Assault Charge
There are many valid defences that can be used when someone is charged with assault. Before any conviction can occur, the Crown must prove the charge. The Crown must prove that force was applied without consent, and they must show the consequences of the force. If there was no force or real threat of force, then there can be no assault.
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Glossary of Legal Terms
Crown prosecutor
Lawyers who act for the federal, provincial and territorial governments and prosecute people accused of crimes on behalf of the Crown.
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
National DNA Data Bank
The National DNA Data Bank maintains a collection of more than half a million DNA profiles of criminal offenders. Maintained by the RCMP it links crime when there are no suspects and can determine if a serial offender is involved in an offence.
Reasonable doubt
The Supreme Court of Canada has said that reasonable doubt “falls much closer to absolute certainty than to proof on a balance of probabilities” and “that something less than absolute certainty is required, and that something more than probable guilt is required."
