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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. M.P. – ICBC insurance fraud investigation.

Charge: Insurance fraud.
Issue: Whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to steer our client through the investigation by helping our client rectify the fraudulent information that he had provided to I.C.B.C. No charges approved. No criminal record.

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

Charges: Assault Causing Bodily Harm; Assault Police Officer.
Issue: Given our client's severe mental health issues, whether he was criminally responsible for the offences.
Result: Mr. Gauthier was able to provide information about our client's mental health history to Crown counsel and, ultimately, was able to persuade Crown to end the prosecution. Stay of proceedings. No jail. No criminal record.

R. vs. J.H. – Vancouver Provincial Court

Charge: Mischief Under $5000.,br> Issue: Whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Gauthier provided information about our client to Crown counsel and was able to persuade Crown that there was no public interest in prosecuting this matter. No charge approved. No criminal record.

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

Charge: Mischief Under $5000.
Issue: Whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Gauthier provided information about our client to Crown counsel and was able to persuade Crown that there was no public interest in prosecuting this matter. No charge approved. No criminal record.

R. vs. W.F. – Richmond Provincial Court

Charge: Assault.
Issue: Whether this road rage incident was a criminal offence or a consensual fight.
Result: Mr. Johnson was able to present Crown counsel with video evidence which confirmed that the complainant had engaged in a consensual altercation. Stay of proceedings. No criminal record.

R. vs. K.Y. – Surrey Provincial Court

Charge: Assault Causing Bodily Harm.
Issue: Whether the 18 month jail sentence Crown had sought was reasonable in all the circumstances.
Result: Mr. Johnson provided information to the Crown and Court and ultimately persuaded the trial judge to sentence our client to a 7 month conditional sentence , followed ny 18 months probation. No jail.

R. vs. G.W. – North Vancouver RCMP Investigation

Charge: Assault with a weapon.
Issue: Whether there was sufficient evidence to support a criminal prosecution.
Result: Mr. Johnson was able collect information from a defence witness and represent to police that our client should not  be prosecuted. Police concluded their investigation without recommending any criminal charge against our client. No criminal record.

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

Charge: Assault with a Weapon.
Issue: Given the rehabilitative steps we directed our client to complete, whether it was in the public interest to proceed with the criminal prosecution.
Result: Mr. Gauthier was able to persuade Crown counsel to not approve any charge prior to the scheduled first court appearance. No criminal record.

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

Charges: Possession of a loaded prohibited firearm; Unlawful storage of firearms.
Issue: Whether the warrant used to search our client's premises was lawful; whether our client posed a risk to re-offend.
Result: Mr. Mines was able to point to potential flaws in the warrant and police search which culminated in Crown's agreement to not pursue their original sentencing position of a 2-3 year jail sentence. Rather, the court accepted a joint submission of a 12 month conditional sentence with a curfew for the first six months. No jail.

R. vs. M.K.A. – Vancouver Provincial Court

Charges: Assault with a Weapon (x2).
Issue: Whether it was in the public interest for the court to grant our client a conditional discharge.
Result: Mr. Mines was able to direct our client through a course of rehabilitative counselling, and after hearing Mr. Mines' submissions, the trial judge granted our client a conditional discharge. No criminal conviction.

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

Charges: Assault (domestic).
Issue: Given the rehabilitative steps that we were able to guide our client through, whether there was a public interest in continuing with the prosecution.
Result: Mr. Mines was able to persuade Crown counsel to amend the bail condition to allow "permissive contact" with the complainant, and after providing Crown with a report from our client's psychologist Crown counsel ended the prosecution. Stay of proceedings. No criminal record.

R. vs. J.L. – Vancouver Provincial Court

Charges: Sexual assault; Unlawful Confinement; Assault by Choking.
Issue: Given the impact of the additional evidence that Mr. Johnson provided to Crown counsel, whether there was a substantial likelihood of a conviction.
Result: Crown counsel agreed that the new evidence significantly undermined the strength of the case.  Crown counsel entered a stay of proceedings, bringing the prosecution to an end. No jail. No criminal record.

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.