Assault is the application of force or the threat of force against another individual without their consent and without legal justification or excuse.Assault with a Weapon is a very broad criminal category. “Begging” for money while carrying a weapon, for example, is considered an assault. The crime of Assault with a Weapon is the application or threatened application of force against another person where a weapon is used as a tool in respect of the force.
Under the Canadian Criminal Code, the unregistered use, possession, and trafficking carry some of the most serious sentences and penalties under our law. Most firearm offences have significant mandatory sentences of jail. This area of law is not only very serious, but also highly complex and requires a full understanding of criminal law. Firearm and weapons offences’ very often require a thorough understanding of constitutional litigation, regulatory understanding relating to licensing, and effective trial advocacy skills.
The Canadian Criminal Code defines a weapon as, “Anything used, designed to be used or intended for use in causing death or injury to any person” and “Anything used, designed to be used or intended for use for the purpose of threatening or intimidating any person.” This means we have obvious weapons like guns, clubs, and knives and less obvious ones like striking a person with a snowball or a book.
The use of a weapon in committing an assault or an assault resulting in bodily harm will attract higher penalties. Section 267 of the Criminal Code of Canada reads as follows:
267 Every one who, in committing an assault,
(a) carries, uses or threatens to use a weapon or an imitation thereof, or
(b) causes bodily harm to the complainant, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
269 Every one who unlawfully causes bodily harm to any person is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction.
The definition does not provide a concrete set of injuries that constitute bodily harm. But over the years the Courts have said at times brushing and scratches can constitute bodily harm. It entirely depends on the context and facts of the incident.
Penalties will be dependent upon whether the case is taken to civil or criminal court. But in general, the consequences of causing someone bodily harm will inevitably be dependent on the extent of physical & emotional injury done to the victim, and can be a combination of fines, restitution, community service work, and a jail term. The most serious incidents can result in a prison term of up to 10 years.Assault with a weapon is a hybrid offence. This means that the Crown prosecutor chooses whether the offence will be treated as a less serious summary conviction offence, or a more serious indictable offence. If found guilty on summary conviction a person convicted of assault with a weapon will be liable to imprisonment for a maximum of eighteen months.
Another factor the courts must consider when reviewing a case, is whether there is a valid defense — in other words, a reason or excuse — for the use of the deadly weapon or whether a deadly weapon was even used.
Possible defenses to assault with a deadly weapon can include:
Self defence- The most common defense is self-defense. To prove this, one must show that the defendant “reasonably believed that he or she, or someone else was in imminent danger of suffering bodily injury or being touched unlawfully.” Second, the defendant must show that he or she reasonably believed that immediate use of force was necessary to defend against that danger. Lastly, the person must show that the use of force was no more than was reasonably necessary to defend against the danger.
Consent- Consent may be a defence when defending assault charges. The burden is on the Crown Prosecutor to prove beyond a reasonable doubt that the person who was allegedly assaulted did not consent to the application of force by the accused person. However, an important limit to this defence is the fact that there is no such thing as consent to bodily harm. Because in law we do not find it permissible to consent to bodily harm, the defence of consent will not operate in any circumstance where there has been an intentional application of force that caused serious bodily harm.
Inability to carry out such a threat- This assault charge requires not only your intent to commit violence, but your ability and capacity to do so. Therefore, you may be able to prove that you were incapable at the moment of acting in any way that would inflict great bodily injury.
In many provinces, judges have a wide degree of discretion when it comes to imposing a sentence for ADW. Factors such as the actual injury to the victim (or lack thereof), the relative ages of the victim and defendant, whether the defendant has a prior criminal record, and the strength of the prosecution’s evidence will all affect the ultimate sentence. Experienced criminal defense attorneys will know how to make the most of evidence that supports a lesser sentence, and they may even be able to convince prosecutors to drop the charges to a less-serious misdemeanor assault.
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