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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 18 months in jail. 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. B.M. - Vancouver Provincial Court

Charge: Driving While Prohibited.
Issue: Whether it was appropriate for Crown counsel to proceed on this charge, which carries a mandatory minimum 12 month driving prohibition.
Result: Mr. Johnson was able to persuade Crown to proceed on the lesser offence of driving without a valid driver's licence. After hearing Mr. johnson's submissions, the court imposed a $500 fine. No driving prohibition.

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

Charge: Assault Causing Bodily Harm.
Issue: Given the rehabilitative steps our client had taken, whether it was in the public interest to proceed with the criminal charge.
Result: Mr. Johnson was able to persuade Crown counsel to stay the criminal charge. Our client entered into a Peace Bond for a period of 9 months. No criminal record.

R. vs. Z.H. - Port Coquitlam Youth Court

Charge: Assault Causing Bodily Harm.
Issue: Whether, given the history between our client and the complainant, it was reasonable for our client apply  the level of force he used.
Result: Mr. Johnson was able to persuade Crown to not approve any criminal charge but, rather, to resolve the matter through Restorative Justice. No criminal record.

Y.Y. vs. Superintendent of Motor Vehicles - Review of Driving Prohibition

Charge: Notice of Intent to Prohibit.
Issue: Whether RoadSafety BC had appropriate reasons to prohibit our client from driving for 4 months.
Result: Mr. Johnson was able to persuade the Superintendent's adjudicator that the 4 month driving prohibition was not warranted. The driving prohibition was reduced to 2 months.

R. vs. R.H. - North Vancouver Provincial Court

Charges: Assault (x2); Threatening; Breach of Undertaking (domestic).
Issue: Given the rehabilitative steps our client had taken, whether it was appropriate for the Court to convict him.
Result: Mr. Mines was able to persuade Crown to proceed on only a single count of assault. After hearing Mr. Mines' submissions, the Court granted our client a conditional discharge. No criminal conviction.  

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

Charges: Dangerous Driving Causing Bodily Harm; Driving Without Due Care and Attention.
Issue: Whether it was appropriate for Crown to charge our client under the Criminal Code or the Motor Vehicle Act in regard to an accident where our client's vehicle struck a cyclist from behind, causing serious injury.
Result: Mr. Mines was able to provide information to Crown which resulted in Crown proceeding under the Motor Vehicle Act. After hearing Mr. Mines' submissions, the Court sentenced our client to a $1000 fine and limited his ability to drive for 12 months. No criminal conviction. No loss of insurance coverage. No jail.

R. vs. C.G. - North Vancouver Provincial Court

Charge: s. 810 Peace Bond Application.
Issue: Given the rehabilitative steps our client had taken, whether the complainant continued to have fear of our client.
Result: Mr. Mines was able to persuade Crown counsel to withdraw its Peace Bond application. No conditions. No record.

R. vs. L.B. - North Vancouver Provincial Court

Charge: Fraud Over $5000 (from employer).
Issue: Given the rehabilitative steps our client had completed and given the compelling explanation of why the offence occurred, whether it was in the public interest for our client to recieve a conviction.
Result: Mr. Johnson was able to persuade the Crown to proceed summarily on the lesser offence of Fraud Under $5000, and after hearing Mr. Johnson's submission, the court granted our client an absolute discharge. No criminal record.

R. vs. R.G. - Vancouver Provincial Court

Charge: Assault.
Issue: Whether there was substantial likelihood of a conviction in this “road rage” assault case.
Result: Mr. Johnson provided information to the Crown that suggested our client was acting in self defence. No charge approved. No criminal record.

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

Charge: Theft Over $5000.
Issue: Given the steps taken by our client to repay a substantial amount of the alleged $70,000 theft from his employer, whether it was in the public interest for the Crown to pursue a jail sentence that, given the breach of trust, would normally be called for.
Result: Mr. Mines was able to persuade Crown counsel that they could only prove theft in the amount of $40,000. He was then able to persuade Crown to proceed summarily on 8 counts of Theft Under $5000 and to make a joint submission for a conditional sentence. After hearing Mr. Mines’ submissions, the court granted our client a 6 month conditional sentence and made a stand alone restitution order. No jail.

R. vs. T.G. - Vancouver Provincial Court

Charge: Assault with a Weapon; Assault Causing Bodily Harm.
Issue: Given the rehabilitative steps Mr. Johnson was able to steer our client through, whether our client would be convicted of the offences.
Result: After hearing Mr. Johnson’s submissions on our client’s behalf, the Judge granted our client a conditional discharge. No conviction; no criminal record.

UBC Independent Investigations Office vs. B.F.

Charge: Sexual Assault.
Issue: Whether the complainant could prove her allegation of being sexually assaulted.
Result: Mr. Johnson provided information to the investigator on our client’s behalf, and at the conclusion of the hearing, the allegation was dismissed.

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.