Assault with a Weapon

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.

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.

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).

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.