Assault with a Weapon

Assault with a Weapon

The offence of assault with a weapon is outlined in section 267(1)(a) of the Criminal Code.

A person commits assault with a weapon when they intentionally use a weapon or imitation weapon to apply force, either directly or indirectly, to another person without that person’s consent. Any item can be considered a weapon for the purpose of this section.

Examples

Person A and person B get into a verbal argument. Person A strikes person B with their purse.

Person A and person B are in an intimate relationship. During an argument, person A hits person B in the chest with their hand. Person A has a phone in the hand they use to strike person B.

While driving in a parking lot, person A gets into a verbal argument with person B over a parking spot. Person A accelerates their car towards person B, causing person B to believe they were going to be struck by the car.

Cases

R. v. Baylis, [2022] ONCA 41

In R. v. Baylis, the offender was charged with one count of aggravated assault and one count of assault with a weapon. While attending a party, the offender attacked another individual, beating the man with his feet, fists, and a baseball bat.

R. v. Di Luciano, [2021] ONCJ 662

In R. v. Di Luciano, the offender was charged with one count of assault with a weapon after becoming involved in a road rage incident with another individual in downtown Toronto. The offender struck the complainant in the arm with a bike lock during the argument.

Offence Specific Defences

Self Defence or Defence of Another

An individual has the right to use force to protect themselves if necessary. If person B assaults or attempts to assault person A, person A is legally entitled to use force (i.e., commit an assault) against person B in self defence. Person B cannot use any more force than is necessary to stop person A’s assault. An individual may also use the force necessary to defend an attack on another person. This legal defence is outlined in section 34(1) of the Criminal Code.

Defence of Property

An individual has the right to use force to protect their property or to remove someone from their property. The force used must be reasonable and only what is necessary to expel the person from the property. If a person does not have a legal right to the property, they may not use force to remove another person. This legal defence is outlined in section 35(1) of the Criminal Code.

Reflex Action

Person A loses balance while walking down a flight of stairs and in an attempt to regain balance, reaches out and hits person B with their bag. Person A did not intend to hit Person B with the bag, instead their reflex action when falling caused them to make contact with person B.

Consent

An assault occurs when the recipient of physical force does not consent to the physical force. If the person being touched does consent to the touch, an assault has not occurred. It is important to note a person cannot consent to bodily harm.

No Weapon

An accused charged with assault with a weapon may argue that they did not have a weapon at the time of the alleged incident. The Crown must prove beyond a reasonable doubt that the accused had a weapon at the time of the alleged incident for there to be a conviction. If the accused establishes this, they could still be charged and convicted with simple assault, however.

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