Assault with a Weapon
Assault with a Weapon - s. 267(a) and Assault Causing Bodily Harm - s. 267(b) and (c) of the Criminal Code of Canada
Summary of the Offence
Section 267 of the Criminal Code makes it an offence to assault another person with a weapon or to cause bodily harm through assault. This includes suffocating, choking, or strangling an individual.
How Serious is the Offence?
The offences of common assault, assault with a weapon, and assault causing bodily harm are considered “hybrid” offences. This means that, depending on the facts and circumstances of your case, the Crown may choose to proceed either by indictment or summarily.
A summary offence is generally less serious in terms of both the nature of the crime and the penalty. In contrast, an indictable offence usually involves more serious crimes and harsher sentences.
Examples of Common Assault
- Throwing an object
- Slapping
- Punching
- Blocking someone's way
Elements of the Offence
Section 265 of the Code states:
(1) A person commits an assault when:
(a) without the consent of another person, they apply force intentionally, directly or indirectly, to that person;
(b) they attempt or threaten, by an act or gesture, to apply force to another person if they have, or cause that person to believe they have, the present ability to carry out the threat; or
(c) while openly carrying a weapon or imitation thereof, they accost, impede, or beg from another person.
To secure a conviction for assault, the Crown must prove, beyond a reasonable doubt, both the actus reus (guilty act) and mens rea (guilty mind) of the offence.
The Guilty Act (Actus Reus)
The Crown must prove that you:
- Directly or indirectly applied force to another person;
- Attempted or threatened to apply force to another person;
- The other person did not consent.
For this element, an act or gesture is required; words alone are insufficient. However, actual physical contact is not necessary for an act to constitute an assault (R. v. Cadden, 1989 CanLII 2847 (BCCA)).
For example, standing in a doorway during a tense discussion, clenching your fists, and saying, “You’re not going anywhere” could constitute an assault.
Consent and its Limitations:
Section 265(3) of the Code outlines what does not constitute consent:
(a) force applied to the complainant or another person;
(b) threats or fear of force applied to the complainant or another person;
(c) fraud; or
(d) improper exercise of authority.
A consensual fight is not always an assault. For example, in R. v. Jobidon (1991 CanLII 77 (SCC)), the accused was acquitted of manslaughter at trial because the victim had consented to the fight. This case established that in order for consent to be vitiated it “requires serious harm both intended and caused”.
The actus reus of assault with a weapon mirrors that of common assault but includes the use or threat of a weapon.
The actus reus of assault causing bodily harm also aligns with common assault but requires that the victim be hurt or injured during the assault. Canadian courts consistently find that if an injury interferes with the victim’s comfort in a way that is more than momentary, it can be considered bodily harm. In some cases, psychological damage may also constitute bodily harm.
The Guilty Mind (Mens Rea)
For all assaults, the Crown must prove that:
- The application of force was intentional; and
- You knew the other party was not consenting.
The Crown must prove, beyond a reasonable doubt, that the other party did not consent.
Possible Defences
- Consensual Fight: If you engaged in a mutually agreed-upon physical altercation, you may argue that both parties consented to the contact. However, consent is invalid if the fight results in serious bodily injury.
- Self-Defence: Using force in response to a perceived threat of force may be justified if the force used is reasonable. To successfully claim self-defence, you must have genuinely believed, on reasonable grounds, that you were being threatened. Additionally, your actions must have been intended for defence and objectively reasonable under the circumstances.
- Defence of Another Person: If you used force to protect someone else from an unlawful attack, this could be a valid defence, as long as your intent was not to cause death or serious injury.
- Defence of Property: Under s. 35 of the Criminal Code, you may use reasonable force to protect your property or prevent trespassing or damage. The force used must be proportionate to the threat or actual force used.
- Applicable Charter Arguments: If your Charter rights were violated during or after your arrest, you may be able to challenge the admissibility of certain evidence. If police officers do not adhere to these rights, whether intentionally or unintentionally, this may support your defense.
Possible Punishment if Convicted
Assault with a Weapon - s. 267(a) and Assault Causing Bodily Harm - s. 267(b) and (c)
- If Proceeded Summarily: A conviction could result in up to 18 months of imprisonment.
If Proceeded by Indictment: A conviction may result in imprisonment for up to 10 years.
Additionally, if convicted of assault with a weapon or assault causing bodily harm, you will be required to provide your DNA to a national DNA database. You may also be subject to other ancillary orders, such as a weapons and firearms prohibition.
Assault with a Weapon - s. 267(a) and Assault Causing Bodily Harm - s. 267(b) and (c) of the Criminal Code of Canada
Summary of the Offence
Section 267 of the Criminal Code makes it an offence to assault another person with a weapon or to cause bodily harm through assault. This includes suffocating, choking, or strangling an individual.
How Serious is the Offence?
The offences of common assault, assault with a weapon, and assault causing bodily harm are considered “hybrid” offences. This means that, depending on the facts and circumstances of your case, the Crown may choose to proceed either by indictment or summarily.
A summary offence is generally less serious in terms of both the nature of the crime and the penalty. In contrast, an indictable offence usually involves more serious crimes and harsher sentences.
Examples of Common Assault
- Throwing an object
- Slapping
- Punching
- Blocking someone's way
Elements of the Offence
Section 265 of the Code states:
(1) A person commits an assault when:
(a) without the consent of another person, they apply force intentionally, directly or indirectly, to that person;
(b) they attempt or threaten, by an act or gesture, to apply force to another person if they have, or cause that person to believe they have, the present ability to carry out the threat; or
(c) while openly carrying a weapon or imitation thereof, they accost, impede, or beg from another person.
To secure a conviction for assault, the Crown must prove, beyond a reasonable doubt, both the actus reus (guilty act) and mens rea (guilty mind) of the offence.
The Guilty Act (Actus Reus)
The Crown must prove that you:
- Directly or indirectly applied force to another person;
- Attempted or threatened to apply force to another person;
- The other person did not consent.
For this element, an act or gesture is required; words alone are insufficient. However, actual physical contact is not necessary for an act to constitute an assault (R. v. Cadden, 1989 CanLII 2847 (BCCA)).
For example, standing in a doorway during a tense discussion, clenching your fists, and saying, “You’re not going anywhere” could constitute an assault.
Consent and its Limitations:
Section 265(3) of the Code outlines what does not constitute consent:
(a) force applied to the complainant or another person;
(b) threats or fear of force applied to the complainant or another person;
(c) fraud; or
(d) improper exercise of authority.
A consensual fight is not always an assault. For example, in R. v. Jobidon (1991 CanLII 77 (SCC)), the accused was acquitted of manslaughter at trial because the victim had consented to the fight. This case established that in order for consent to be vitiated it “requires serious harm both intended and caused”.
The actus reus of assault with a weapon mirrors that of common assault but includes the use or threat of a weapon.
The actus reus of assault causing bodily harm also aligns with common assault but requires that the victim be hurt or injured during the assault. Canadian courts consistently find that if an injury interferes with the victim’s comfort in a way that is more than momentary, it can be considered bodily harm. In some cases, psychological damage may also constitute bodily harm.
The Guilty Mind (Mens Rea)
For all assaults, the Crown must prove that:
- The application of force was intentional; and
- You knew the other party was not consenting.
The Crown must prove, beyond a reasonable doubt, that the other party did not consent.
Possible Defences
- Consensual Fight: If you engaged in a mutually agreed-upon physical altercation, you may argue that both parties consented to the contact. However, consent is invalid if the fight results in serious bodily injury.
- Self-Defence: Using force in response to a perceived threat of force may be justified if the force used is reasonable. To successfully claim self-defence, you must have genuinely believed, on reasonable grounds, that you were being threatened. Additionally, your actions must have been intended for defence and objectively reasonable under the circumstances.
- Defence of Another Person: If you used force to protect someone else from an unlawful attack, this could be a valid defence, as long as your intent was not to cause death or serious injury.
- Defence of Property: Under s. 35 of the Criminal Code, you may use reasonable force to protect your property or prevent trespassing or damage. The force used must be proportionate to the threat or actual force used.
- Applicable Charter Arguments: If your Charter rights were violated during or after your arrest, you may be able to challenge the admissibility of certain evidence. If police officers do not adhere to these rights, whether intentionally or unintentionally, this may support your defense.
Possible Punishment if Convicted
Assault with a Weapon - s. 267(a) and Assault Causing Bodily Harm - s. 267(b) and (c)
- If Proceeded Summarily: A conviction could result in up to 18 months of imprisonment.
If Proceeded by Indictment: A conviction may result in imprisonment for up to 10 years.
Additionally, if convicted of assault with a weapon or assault causing bodily harm, you will be required to provide your DNA to a national DNA database. You may also be subject to other ancillary orders, such as a weapons and firearms prohibition.
