QUICK TAKEAWAY
Assault with a Weapon: Assault can take on many forms and is not limited to physically striking someone. Assault with a weapon is covered under s.267 (a) of the Criminal Code and covers those "who, in committing an assault, carries, uses or threatens to use a weapon or an imitation thereof, or causes bodily harm to the complainant." The definition of a weapon is not limited to a gun or a knife. It can be any object that can be used to cause harm. Also, contact with the victim is not necessary to be found guilty. The Crown must only prove a weapon was used to threaten or intimidate. Any form of assault is considered a violent crime and the consequences can be severe. However, because of the use or threat of violence, assault with a weapon is among the most serious crimes in the Code and carries harsh sentences on conviction.
Table of Contents:
What is Assault with a Weapon?
Many people think of a weapon as a gun or a knife but under the Code any implement used to threaten harm or inflict injury falls into this classification. Section 2 defines weapons as “anything used, designed to be used or intended for use (a) in causing death or injury to any person, or (b) for the purpose of threatening or intimidating any person, and … anything used, designed to be used or intended for use in binding or tying up a person against their will.”
A weapon can include a shovel, a frying pan or even a snowball. If you use it or threaten to use it, you can be charged.
The mere act of threatening to harm someone with a weapon or an imitation weapon could find you in a courtroom facing a trial that can leave you imprisoned with a criminal record The Code states a person can be charged if he “carries, uses or threatens to use a weapon or an imitation thereof.” So, for example, if you rob someone at gunpoint, the weapon does not have to be fired for you to be charged with assault with a weapon.
What is Needed to Convict
Although the charge of assault can be complex depending on the circumstances, the burden to gain a conviction is quite simple. The Crown prosecutorLawyers who prosecutes charges on behalf of the Crown must prove three things beyond a reasonable doubtThe standard that must be exceeded to find someone guilty:
- that you applied force to someone;
- the victim did not consent to that force; and
- the force was applied intentionally.
The Crown does not have to prove there was intent to maim, wound or disfigure, only that there was an intent to cause bodily harm.
A defence lawyer may argue that police exceeded their powers and your rights under the Canadian Charter of Rights and Freedoms during your arrest You have the right to be free from unreasonable police searches. You also have the right to a lawyer. These rights can impact your case.
Treated as a Summary or an Indictable Offence
Assault with a weapon is a hybrid offenceAn offence prosecuted either as a summary conviction or as an indictable offence and the Crown will decide how to proceed with your case. Under the Criminal Code those facing this charge can either be found guilty of an indictable offenceIndictable offences are more-serious criminal offences and liable to imprisonment or an offence punishable on summary convictionUsed for lesser offences on lower sentencing guidelines.
When deciding whether to proceed summarily or by indictment the Crown will consider such factors as the seriousness of the allegations and your prior criminal record.
Penalties for Assault with a Weapon
If you are convicted of assault with a weapon the sentence will be much harsher than those found guilty of basic assault. You could face a prison term of up to 10 years You may also be asked to give a sample to the national DNA databank. A lifetime ban on owning any weapons may also be imposed by the judge. You could be looking at a maximum penalty of two years less a day in jail if the charge is treated as a summary offence.
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.
Hybrid offence
Hybrid offences fall between a summary and an indictable offence. The Crown prosecutor chooses whether to treat the offence as a summary or indictable offence.
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.
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."
Summary conviction
Summary convictions are used for lesser offences with penalties, fines and short jail time. They reflect the majority of offences as defined in the Code.
