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Assault with a Weapon

The Charge

Under the s. 2 definition of the Criminal Code, a weapon is “anything used, designed to be used, or intended for use in causing death or injury, or for the purpose of threatening or intimidating any person.” Under s. 267, everyone who, in committing an assault, carries, uses or threatens to use a weapon (or imitation) is guilty of an indictable offence or a summary offence. The maximum sentences are, respectively, 10 years in jail or two years jail, less day. There is no mandatory minimum sentence for Assault with a Weapon. Non-custodial sentences are available.

To obtain a conviction for Assault with a Weapon, the Crown must first prove that there was an assault. This is to say that the Crown must prove that the accused applied force to the complainant without the complainant’s consent. Further, the Crown must prove that the accused was not acting in self-defence. In addition, the Crown must prove that the accused, in committing the assault, used a weapon. The Crown need not prove that any injury actually occurred.

It is a misconception that a “weapon” is limited to instruments such as firearms or knives. Objects such as chairs, rocks, potted plants, cars and even dogs have been held to be weapons.

The Investigation

Assault with a Weapon investigations unfold according to the nature of how and when the police receive the complaint. For example, police may be called to a bar or nightclub when a concerned patron or server sees a fight break out. Police will attend the scene and make an arrest. In other cases, it may take hours, days or weeks for police to be notified. In these situations, police will contact the suspect by attending at their house or workplace. They may contact the suspect by phone. As investigators, the police will want to hear the suspect’s side of the story. As experienced lawyers, this is where we can help our clients understand their right to silence as guaranteed by the Charter.

When we are contacted by a suspect prior to their arrest, we can be of significant assistance. We will contact police to determine who the investigating officer is. We will then contact this officer to determine the nature of the investigation. Because of the laws concerning solicitor/client privilege, we can act as a “buffer” between police and them. We are able to speak on your behalf without creating any evidence that could be used to incriminate you. We will strive to persuade police to not take you into custody at all or, alternatively, to release you as quickly as possible, with the least onerous conditions that are appropriate.

Recent Successes

R. v. Q.C. – Insurance Fraud Investigation

Charge: Insurance fraud over $5000 investigation.
Issue: Given our client's rehabilitation and repayment of disputed funds, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to persuade the Insurance company to settle the matter on a civil basis. No criminal charhges were forwarded. No criminal record.

R. vs. D.K. – Surrey Provincial Court

Charges: Assault; assault with a weapon; breach of undertaking (x2); attempting to take weapon from police.
Issue: Whether our client's personal circumstances and positive rehabilitative steps made him a good candidate for a conditional discharge.
Result: Mr. Mines was able to persuade Crown counsel to proceed only on the common assault charge and to stay proceedings on the remaining four criminal charges. After hearing Mr. Mines'submissions, the Court granted our client a conditional discharge and placed him on probation for 12 months. No criminal conviction.

R. vs. A.S. – North Vancouver Provincial Court

Charges: Fraud Over $5,000 (x4); Theft Over $5,000 (x4).
Issue: Given that full restitution was made and that our client had taken significant steps toward self-rehabilitation, whether jail was the appropriate sentence for this $240,000 employee fraud.
Result: Mr. Mines was able to facilitate the restitution payment and provided medical information to Crown counsel on our client's behalf. Ultimately Mr. Mines persuaded Crown to  jointly  recommend a non-custodial sentence. After hearing Mr. Mines' submissions, our client was granted a 2 year less a day conditional senntence.. No jail.

R. vs. R.B. – Vancouver Provincial Court

Charges: Assault Causing Bodily Harm (reduced to assault).
Issue: Whether the caselaw supported our client receiving a conditional discharge for this domestic assault case in which the coplainant sustained a significant injury.
Result: Mr. Gauthier was able to provide Crown counsel with information about our client and a number of case authorities which resulted in Crown agreeing to proceed on assault simpliciter  and to make a joint recommendation for a conditional discharge, which was accepted by the court.

R. vs. D.T. – Vancouver Provincial Court

Charges: Assault causing bodily harm.
Issue: Given the parallel civil claim and the issue of  self defence, whether there was a substantial likelihood of a conviction and whether it was in the public interest to proceed with the prosecution.
Result: Mr. Gauthier was able to provide information about our client's circumstances and the circumstances of the incident which caused Crown counsel to enter a stay of proceedings. No criminal record.

R. vs. P.G. – Richmond Provincial Court

Charges: Assault; Assault by Choking.
Issue: Whether our client was acting in self defence and whether he used excessive force.
Result: Mr. Mines was able to guide our client through a course of self rehabilitation and to persuade Crown to proceed on the lesser charge of simple assault. After hearing Mr. Mines' submissions, the Court granted our client a conditional discharge and declined to make the restitution order sought by the complainant. No criminal conviction.

R. vs. C.C. – Insurance Fraud Investigation

Charges: Fraud Over $5,000 Investigation.
Issue: Given that we were able to negotiate a civil settlement of this $6,000 insurance claim overpayment, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to negotiate a settlement of the alleged fraudulent claim. We obtained a full Release, ending the matter. No further liability. No criminal charges were forwarded.

R. vs. S.R. – Vancouver Provincial Court

Charges: Sexual assault; assault.
Issue: Whether the trial judge would allow Mr. Mines' application to cross examine the complainant on prior records (text messages) that impacted her credibility and reliability.
Result: The trial judge allowed our application in part, and ruled that the remaining issues could be renewed at at further point in the trial. Crown counsel entered a stay of proceedings after the conclusion of our application. No further prosection. No jail. no criminal record.

R. vs. A.J. – Insurance Fraud Investigation

Charges: Fraud Over $5,000 Investigation.
Issue: Given that we were able to negotiate a civil settlement of this $13,000 insurance claim overpayment, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Mines was able to negotiate a settlement of the alleged fraudulent claim. We obtained a full Release, ending the matter in both the civil and criminal context. No further liability. No criminal charges.

R. vs. M.M. – New Westminster Police Investigation

Charge: Sexual Assault Investigation.
Issue: Whether there was sufficient evidence for police to recommend that criminal charges be approved.
Result: Mr. Gauthier was able to guide our client through the police investigation, and to provide police with information on our client's behalf. Ultimately, police decided not to forward any charge to Crow. No charges approved. No criminal record.

R. vs. C.T. – Insurance Fraud Investigation

Charges: Fraud Under $5,000
Issue: Given our client's repayment of the alleged fraudulent health insurance benefits, whether it was in the public interest to proceed with criminal charges.
Result: Mr. Gauthier was able to settle the matter civilly on our client's behalf without any further civil or criminal proceeding. No charges were approved.

R. vs. A.S. – Port Coquitlam Provincial Court

Charges: Assault (domestic) Reduced to Peace Bond.
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in the public interest to continue with the criminal prosecution.
Result: Mr. Mines was able to steer our client through a course of rehabilitation and persuaded Crown to stay the assault charge and to allow our client to enter into a Peace Bond.

The Defence

Consent

As in a common assault charge, the Crown must prove that the accused applied force directly or indirectly to another person without their consent. This includes threatening, by act or gesture, to apply such force to another person. Assault with a Weapon, therefore, includes all acts where force is actually applied (such as striking someone with an object, or stabbing them) to acts where force is threatened (such as raising a gun, knife or other object toward the person).

Self Defence

The law allows that if a person reasonably believes that force is being used (or threatened to be used) against them, they are allowed to use force to defend themselves, or another person, so long as the force they use is reasonable. In determining whether the force used was reasonable, the court will consider various circumstances, including:

  • The nature of the force or threat;
  • The extent to which there was an alternative to using force;
  • The size, gender and physical capabilities of the parties; and
  • The history and relationship of the parties.

Self-defence is available, therefore, to an assault with a weapon charge to the extent that the accused person, objectively, had to defend themselves (or another person). The force used must not be excessive. Clearly, a person is not permitted to defend themselves from a punch by pulling out a gun and killing the attacker. However, the law holds that a person being attacked is allowed to use “reasonable force,” and, in the heat of the moment of being attacked, is not required to fully “measure” the amount of force that they use in self-defence.

As lawyers with more than 25 years of experience defending all types of assault cases, we have the experience and skills to assess your case before it gets to trial. In appropriate cases, we are able to persuade Crown counsel to not proceed with the prosecution, to proceed on a lesser charge, or to persuade the judge to grant a discharge rather than convict our client. In cases that do proceed to trial, we are well-versed in the various defences that are available to Assault with a Weapon charges.

Start with a free consultation.

If you are being investigated by police or if you’ve been charged with a criminal or driving offence, don’t face the problem alone. Being accused of an offence is stressful. The prospects of a criminal record or jail sentence can be daunting. Even if you think there is no defence, we may be able to help. To schedule a free initial consultation with one of our Vancouver lawyers, contact us now.