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Defend Assault Charges

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Frequently Asked Questions

Assault with a weapon is an offence set out under s. 267(a) of the Criminal Code. The offence is one of three under the heading of Assault with a Weapon or Causing Bodily Harm. The specific offence under s. 267(a) states that anyone commits an assault with a weapon when they assault someone while using, threatening to use, or carrying a weapon, or the imitation of a weapon. In simpler terms, an assault occurs whenever someone applies force to another person’s body without consent. Therefore, an assault becomes an assault with a weapon when the offender has anything that meets the definition of a weapon under s. 2 of the Code. “Weapon means any thing used, designed to be used or intended for use in causing death or injury to any person, or for the purpose of threatening or intimidating any person…”

Given the definition of a weapon, any object from keys, to a more common example such as a gun are deemed weapons under the law if the offender intends to use them to hurt another person. It would also be an offence for a person to assault someone while the offender was carrying a fake weapon if the victim believed that the weapon may be real.

To illustrate these ideas, consider this example. Person A approaches Person B with a baseball bat. In three different situations, A could be charged with assault with a weapon. First, if A hits B with the bat. Second, if A holds, but does not use the bat while he is punching B in the face. And third, if A acts like he is going to hit B with the bat but stops short of making contact.

What if I own Legal Weapons?

Firearms or other regulated weapons that a person owns are an important consideration when someone has been charged with assault with a weapon. If the police discover that such a weapon was used to commit the offence, it will be seized as evidence and could be the subject of a forfeiture order. If the regulated weapon is not the one that was used to commit the offence, its owner may still have to take special steps with it during the criminal justice process.

Where an accused is arrested and later released on bail, they will typically be placed on conditions including a weapons prohibition that will prohibit the accused from possessing any weapons at least until their case has concluded.

To comply with such an order, the accused may have to turn their weapons and the associated paperwork or licenses over to the police, or legally transfer them to another individual. In certain jurisdictions in Ontario, the accused can also ask the police to voluntarily hold their weapons until their case has been resolved. Where the police agree to hold the accused’s weapons, the accused may have their property returned to them once their bail conditions have been lifted.

If the accused does not comply with these conditions, they may forfeit those weapons and be placed in custody. Permanent seizure of a person’s weapons will only occur after they have been convicted and issued a no weapons order. It is also possible that an accused person may avoid these steps if they transfer the weapons and licenses to another person who is legally permitted to posses them.

Jail Sentences for Assault Charges in Canada

Donich Law - Assault Punishments

How Does the Crown Prove Assault with a Weapon? 

To secure a conviction, the Crown must be able to prove, at trial, all the elements that make up a specific offence beyond a reasonable doubt. Every criminal offence under Canadian law shares three basic elements that must be proven before the Crown can deal with the issues specific to assault with a weapon. These common elements include the identity of the accused, the date, time, and location of the offence.

The elements specific to assault with a weapon include that the accused must assault the victim and that they did so with a weapon. This means that the Crown must prove the accused intentionally or recklessly and without thought to the probable consequences applied force to the victim without their consent. Once the assault has been proven, the Crown must prove one of the three conditions that were discussed in the first question on this page. It must be shown that the accused was carrying a weapon, used a weapon to commit the assault or threatened to use a weapon to commit an assault as demonstrated in the example set out above. Where the Crown is able to prove each relevant element beyond a reasonable doubt, the accused will be convicted and sentenced.

Can an Assault with a Weapon Charge Impact Someone’s Immigration Status?

It is possible that an assault with a weapon conviction could impact a person’s immigration status. Given that the offence carries a 10-year maximum sentence, assault with a weapon that is prosecuted by indictment qualifies as serious criminality according to s. 36(1) of the Immigration and Refugee Protection Act.

That provision states that any permanent resident convicted of an indictable offence such as assault with a weapon will be considered inadmissible to Canada. The same ruling would apply to any foreign national that has entered Canada, according to s. 36(2) of the IRPA. A person convicted of assault with a weapon that faces a sentence of six months imprisonment or more could face deportation. If the person has entered Canada using a work permit or student visa, that permit may not be renewed after they have been deported. The same consequences face a person seeking refugee protection. An assault with a weapon conviction may result in their refugee claim being suspended and the deportation process being triggered.

How to Defend Assault Charges

What are the Common Penalties for an Assault with a Weapon Conviction?

Assault with a weapon is an example of an offence that is known under Canadian law as a hybrid offence. Hybrid offences allow the Crown to prosecute each case differently depending on various factors including the seriousness of the offence and when the offence was committed. The Crown may choose to elect by indictment where the allegations are serious or occurred outside the limitation period. Indictable offences carry more severe penalties. The maximum sentence an offender can receive for indictable assault with a weapon conviction is 10 years imprisonment. The Crown may also elect to proceed summarily, which result in a lesser maximum penalty. The maximum sentence for summary conviction assault with a weapon charge is two years less a day in prison and/or up to a $5,000 fine.

The exact sentence an offender receives will depend on the facts of their case and other relevant factors. When determining the appropriate sentence the court will consider these factors, known as aggravating and mitigating factors. Aggravating factors may include the degree of violence used in the assault, the weapon used, or if the victim was the offender’s domestic partner or family member. Mitigating factors may include a guilty plea, the lack of a previous criminal record, or the offender’s young age. In addition to the main sentence, a court may order secondary penalties to be imposed that are known as ancillary orders. Common ancillary orders issued with an assault with a weapon conviction include a weapons ban and a DNA order.

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Recent Cases

R. v. Malachi Brown, 2023 ONSC 3684

This Ontario Superior Court of Justice case is an example of the sentencing process for assault with a weapon cases. The case dealt with a young man and woman who were in a relationship. On the day of the offence, the offender entered the victim’s home with a BB gun while she was home alone. While in the home the two argued and the offender assaulted the victim, threatened to kill her, and fired the BB gun several times. The victim was shot once in the leg and testified that she believed the gun was real and feared for her life when it was fired at her.

The offender was charged and convicted of assault with a weapon and with using an imitation firearm while committing an assault with a weapon. For those offences, the offender was issued an 18-month conditional sentence, two years probation and a 10-year weapons ban. The sentencing decision highlighted the offender’s youth and lack of a criminal record but balanced those factors against his decision to use an imitation firearm that had the potential to cause serious injury while leaving the victim with the impression that it was a real gun, and the fact that the offence occurred within the context of an, albeit short, domestic relationship. This necessary balance led the court to conclude that a conditional sentence was appropriate in the circumstances because the Canadian criminal justice system will consider all viable alternatives before imprisoning an offender. “He has much growing up to do, and must learn to take responsibility for his actions if he is to have a productive future. But immaturity is not a reason to send him to jail; quite the contrary. Efforts to help Malachi become a functioning adult are best made in the community, if possible.” [at para 56]

R. v. Solomon, 2023 ONSC 2602

This Ontario Superior Court of Justice case dealt with an assault with a weapon charge that was committed in connection with other offences. The offender pled guilty to charges of kidnapping, assault with a weapon, and possession of stolen property under $5,000. The offences occurred when the offender and his accomplices approached a person in the middle of the night with guns drawn, stuck the victim, bound his hands and feet, and put him in the trunk of their car. Fortunately, the offender did not remove the victim’s cellphone. This allowed the police to locate the vehicle and victim, though the offender was discovered in the United States and turned over to Canadian authorities sometime later. The offender was also charged with several additional offences connected to incidents of violence while he was detained awaiting trial.

The offender experienced a hard life as a refugee before immigrating to Canada which undoubtedly contributed to his decision-making. However, while being in Canada he had acquired several criminal convictions prior to the events of this case. The difficulty in issuing the appropriate sentence in this case came in balancing these personal considerations with a lengthy and serious criminal record. It is important to note that the sentencing judge attempted to consider all relevant factors without letting one or another overly impact their decision either way. “Mr. Solomon is now at serious risk of becoming a career criminal. If he does not take his rehabilitation seriously and put in the work necessary to turn his life around, he may well find himself facing more serious charges in the future and spending every lengthening periods in custody.” [at para 42] The offender was sentenced to a total of approximately eight years imprisonment minus credit for time served. This included a three-year sentence for assault with a weapon in connection with the kidnapping. A DNA order was also issued along with a lifelong weapon ban.

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About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.