How to Defend Assault with a Weapon?

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.

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.

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.