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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. vs. A.S. - Vancouver Provincial Court

Charge: Driving while prohibited.
Issue: Whether it was in the public interest to proceed with this charge which carries a mandatory one year driving prohibition upon conviction.
Result: Mr. Mines was able to provide Crown counsel with information that concluded our client was not at all responsible for the motor vehicle accident and persuaded Crown to proceed on the lesser offence of driving without aa valid license. Our client was sentenced to a fine and a 3 month driving prohibition.

R. vs. L.M. - Vancouver Provincial Court

Charges: Mischief Over $5000; Assault Police Officer.
Issue: Whether the sentence ought to emphasize punishment or rehabilitation in this matter where our client was alleged to have caused over $100,000 in damage to his building.
Result: Mr. Gauthier was able to provide Crown counsel with materials confirming the rehabilitative steps our client had taken for his mental health. The cRown stayed the assault police officer charge and, after hearing Mr. Gauthier's submissions, the Court granted our client a conditional discharge and placed him on probation. No jail.

R. vs. D.R. - Vancouver Provincial Court

Charge: Assault (domestic).
Issue: Whether it was in the public interest to proceed with the prosecution.
Result: Mr. Mines was able to persuade Crown counsel to enter a stay of proceedings on the assault charge. Our client entered into a 12 month Peace Bond. No criminal record.

R. vs. B.Z. - Port Coquitlam Provincial Court

Charge: Assault (domestic).
Issue: Given the rehabilitative steps we were able to direct our client through, whether it was in the public interest to proceed with this prosecution.
Result: Mr. Johnson was able to provide Crown counsel with information that allowed him to persuade Crown to enter a stay of proceedings. No criminal record.

R. vs. M.C. - Vancouver Provincial Court

Charges: Driving While Prohibited.
Issue: Whether it was in the public interest for Crown to proceed with the prosecution of this offence which carries a 12 month mandatory minimum driving prohibition.
Result: Mr. Johnson was able to persuade Crown counsel to proceed on the lesser offence of driving without a valid licence. Our client received a $500 fine and a 30 day driving prohibition.

R. vs. M.L. - Surrey Provincial Court

Charges: Sexual Interference.
Issue: Whether the Crown could prove that our client sexually interfered with his niece.
Result: After a 6 day trial, Mr. Johnson was able to persuade the trial judge that there was reasonable doubt as to the complainant's credibility and reliability. Not guilty. No jail. No criminal record.

R. vs. R.R. - Richmond Provincial Court

Charges: Theft Under $5000 (shoplifting).
Issue: Whether it was in the public interest to proceed with the prosecution.
Result: Mr. Mines was able to provide Crown counsel with information that led Crown to resolve this matter with a Caution Letter. No charges were approved. No criminal record.

R. vs. B.R. - Vancouver Youth Court

Charges: Assault Causing Bodily Harm; Assault with a Weapon.
Issue: Whether our client was acting in self defence when he injured the complainant with a knife during an altercation.
Result: Mr. Mines was able to provide information to Crown counsel that resulted in Crown declining to approve any charges. No criminal record.

R. v. C.C. - Surrey provincial Court

Charges: Impaired Driving, Dangerous Driving Causing Death. Issues: Whether police breached our client's Charter rights during the investigation; whether the court would accept the Crown's sentencing submission.
Result: Mr. Mines was able to persuade Crown counsel that police breached our client's right against an unlawful seizure of his breath samples. This resulted in the Crown's inability to prove the Impaired Driving / Over .08 offences.  The Crown had originally been seeking up to 4.5 years jail, but sought a one year jail sentence on the Dangerous Driving Causing Death charge. After hearing Mr. Mines' submissions, the court found that 5 months was the appropriate sentence.

R. vs. B.S. - North Vancouver RCMP Investigation

.Charge: Uttering Threats.
Issue: Whether there was a public interest in proceeding with the proposed charge.
Result: After Mr. Johnson made  representations to the investing officer, police advised that no charges would be forwarded to Crown counsel. No criminal record.

R. vs. C.M. - Vancouver Provincial Court

Charge: Driving While Prohibited.
Issue: Whether it was in the public interest to proceed with the charge, which carries a one year mandatory minimum driving prohibition upon conviction.
Result: Mr. Mines was able to persuade Crown counsel to proceed on the lesser charge of driving without a valid drivers license. The court agreed with Mr. Mines' submissions and imposed a fine but did not impose any driving prohibition.

R. vs. N.A. - Vancouver Provincial Court

Charges: Driving While Prohibited.
Issue: Whether it was in the public interest to proceed with the charge.
Result: Mr. Mines was able to persuade Crown counsel to allow our client to plead to the lesser offence of driving without a valid driver's license. Rather than face a mandatory minimum 12 month driving prohibition, our client was sentenced to a fine. No driving prohibition.  

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.