Key Takeaways
- Assault with a weapon and aggravated assault are serious offences under Canadian law with potentially severe penalties.
- A strong legal defence strategy depends on several factors, including weapon type, injuries, and the context of the offence.
- Common defences include self-defence, lack of intent, consent, and Charter violations.
- Aggravated assault typically limits options for resolution outside of court.
- Hiring an experienced criminal lawyer significantly improves your chances of a favourable outcome.
Table of contents
- How Assault With a Weapon or Causing Bodily Harm Differs from Aggravated Assault
- Factors That Influence the Defence Strategy
- How to Win an Assault Case with a Weapon or an Aggravated Assault Charge
- Strategic Differences in Aggravated Assault Cases
- Can Assault Charges Be Dropped Based on These Defences?
- Why Experienced Legal Representation Is Essential?
- Conclusion
Assault with a weapon and aggravated assault are among the most serious violent crimes and are often prosecuted with greater scrutiny by both police and the Crown. These offences are either hybrid or indictable, potentially carrying long prison sentences, and thus call for a nuanced defence.
In this article, we take a closer look at the factors that influence the choice of defence strategy in each of these cases and explore how to beat aggravated assault charges and win an assault case with a weapon in Canada.
How Assault With a Weapon or Causing Bodily Harm Differs from Aggravated Assault
Assault with a Weapon or Causing Bodily Harm
The Criminal Code of Canada combines assault with a weapon and assault causing bodily harm in Section 267. According to Canadian criminal law, anyone who carries, uses, or threatens to use a weapon or its imitation, or causes bodily harm to another person, commits a criminal offence.
In this type of offence, bodily harm involves injuries that go beyond minor distress, like scratches, smaller bruises, or headaches. In the context of the Criminal Code, bodily harm means injuries that interfere with the victim’s health or comfort, such as fractures, bruising around the eye, a large amount of pulled hair, and similar instances.
In cases qualified as assault with a weapon in the Criminal Code, the minimum sentence is not applied. The maximum sentence for assault with a weapon in Canada is imprisonment of up to 10 years on an indictable conviction, or two years less a day and/or a monetary fine of $5,000 on summary conviction.
Aggravated Assault
When someone wounds, maims, disfigures, or endangers the life of the victim, the offence is elevated to aggravated assault, which is a strictly indictable offence. While Canadian criminal law does not apply an aggravated assault minimum sentence, the maximum penalty is quite severe and can be up to 14 years in prison.
Weapon Definition in Canada
In Canada, anything used, designed to be used, or intended for use in causing injury or death, or to threaten someone, can be considered a weapon. Thus, weapons are not limited to firearms or knives and can include ordinary objects such as kitchenware, household tools, such as a screwdriver, or even a beer bottle.
Factors That Influence the Defence Strategy
When choosing a strategy on how to beat an assault charge in Canada, there are multiple factors to consider. Among others, the circumstances that influence the defence strategy would include:
- Type of Weapon Used: Any offence involving firearms in Canada is ineligible for programs such as community diversion and is prosecuted through the criminal process.
- Level of Bodily Harm Involved: Depending on the seriousness of the injuries, an assault can be classified as assault causing bodily harm or aggravated assault, requiring an individual defence strategy.
- Relationship Between the Parties: Offences involving intimate partner violence are prosecuted much more seriously.
- Other Circumstances: Factors that influence prosecutors’ discretion on how to press the assault charge in Ontario include the availability of reliable evidence, such as the presence of witnesses or CCTV records, as well as public interest factors, such as the criminal history of the accused.
How to Win an Assault Case with a Weapon or an Aggravated Assault Charge
The context of the offence plays a critical role in selecting defences to assault with a weapon, causing bodily harm, or aggravated assault charges. From the weapon type in assault cases to the degree of injuries inflicted on a victim, each individual factor can significantly affect how the prosecution approaches the case and how to fight the charges.
Here are the most common defence strategies applied by a weapon offence lawyer in Toronto, depending on the circumstances.
Self-Defence or Defence of Others
Section 34 (1) of the Criminal Code makes it no offence when someone uses force to defend themselves or protect another person, and their acts are reasonable in the circumstances. The examples include using physical force or weapons to stop the attacker when there are reasonable grounds to believe there is imminent danger.
The factors to determine whether the act is reasonable as self-defence include the size, age, gender, and physical capabilities of the attacker and the victim, the proportionality of the response to the threat, and other considerations.
Consent
In rare cases, such as consensual fights, charges for assault causing bodily harm or aggravated assault can be challenged by raising the defence of consent. Importantly, according to criminal law, no one can consent to fighting with weapons resulting in serious bodily harm, or consent to be stabbed, among other similar scenarios.
Lack of Intent or Accidental Use
In situations where the defendant did not intend to cause harm, there may be no criminal liability. For example, carelessly throwing a bottle or another object, which accidentally hits someone, may not be sufficient to bring criminal charges. However, a reckless act where the harm could have been foreseen, such as throwing a phone in the direction of the victim, resulting in an injury, can lead to a conviction.
Mistaken Identity or Lack of Evidence
The criminal law requires the Crown to prove beyond a reasonable doubt the identity of the person who committed the crime. Where there is a lack of evidence or other issues with the identification of the accused, for example, in fast-moving or chaotic circumstances, the defence of mistaken identity can be used to contest the charges.
Charter Violations
The Canadian Charter provides anyone charged with a criminal offence with a number of rights and freedoms. Additionally, Section 24(2) of the Charter obliges the court to exclude any evidence against the accused that was obtained in a manner violating any of those rights. Accordingly, the defence can request the exclusion of evidence collected in a manner violating the accused’s Charter rights.
Mental Health or Incapacity
An assault with a weapon or causing bodily harm, as well as aggravated assault, are general-intent offences. In these types of crimes, the accused does not need to intend the consequences of their actions, only that they intended or threatened to apply force. At the same time, in cases where the accused is medically unable to form intent, for example, due to mental health issues, a defence of mental incapacity can be raised.
Strategic Differences in Aggravated Assault Cases
Where an assault results in aggravated harm to the victim, such as maiming or disfigurement, or where there is a danger of death, the defence becomes more complicated. According to the principles of deterrence and denunciation in criminal law, the seriousness of the aggravated assault can often result in incarceration.
Additionally, since aggravated assault is a very serious offence, it is typically ineligible for community justice programs, and Crown attorneys are less likely to resolve such cases outside of trial. This and other factors related to aggravated assault can limit the chances of seeking resolution outside the courtroom and have an impact on available defences.
Can Assault Charges Be Dropped Based on These Defences?
In general, jail sentences are common in cases of assault with a weapon that causes serious injury. The Crown attorneys will proceed with the charges if there is a reasonable prospect of conviction, for example, an availability of sufficient evidence.
The prosecutors are also guided by the principle of defending the public interest in pursuing conviction. In this situation, the availability of a specific weapon assault defence strategy and resolutions such as withdrawal of the changes, reduced charges, and a peace bond would heavily depend on the individual circumstances of the case.
Why Experienced Legal Representation Is Essential?
While it’s absolutely possible to self-represent yourself in assault cases involving weapons or bodily harm, the gravity of the potential consequences and existing approaches by the prosecution call for the involvement of the best criminal lawyer in Brampton. The Canadian criminal law is nuanced and requires experience with similar cases and expertise in applying tailored defence strategies.
Depending on the circumstances of the case, our experienced weapon offence lawyer in Toronto may involve expert witnesses, such as weapon and forensic experts, medical professionals, and other experts, to challenge the evidence presented by the prosecution. Your lawyer would check if any of your Charter rights were violated and would apply a tailored defence strategy to achieve the most favourable outcome under the circumstances.
Conclusion
Both assault with a weapon or causing bodily harm and aggravated assault are serious offences that are rigorously prosecuted. While there are several defence strategies available in these cases, the effectiveness of these defences is context-specific and depends on the type of weapon used, the degree of injuries inflicted, and other circumstances.
If you are charged with assault with a weapon, aggravated assault, or face murder charges in the GTA, please don’t hesitate to contact Vilkhov Law Firm in Toronto, Etobicoke, Mississauga, Richmond Hill and across the GTA, Ontario. Our experienced defence lawyers will advise you on the steps to take if charged with assault with a weapon or other offences and will help you mount a strong defence.
Frequently Asked Questions
Can I go to jail for assault with a weapon in Canada?
Yes. Assault with a weapon is a serious criminal offence under section 267 of the Criminal Code. If convicted on an indictable basis, you may face up to 10 years in prison. Even on summary conviction, penalties can include jail time, probation, and a fine. The outcome depends on the circumstances, the harm caused, and the defence strategy used.
Does self-defence always work in assault with a weapon cases?
No. While self-defence is a valid legal strategy, it must meet strict criteria under section 34 of the Criminal Code. The use of force must be reasonable in the circumstances, and the threat must be imminent. If the response is disproportionate or the threat was not immediate, the court may reject the defence.
Can assault charges be dropped before trial?
Yes, assault charges can sometimes be dropped or withdrawn, especially if there is insufficient evidence or if the accused’s Charter rights were violated. A strong weapon assault defence presented early in the process may influence the Crown’s decision to pursue, reduce, or drop the charges.
Should I hire a lawyer if I’m charged with assault with a weapon?
Absolutely. These charges carry serious consequences, including a criminal record, imprisonment, and long-term impacts on your future. A criminal lawyer experienced in defences to assault with a weapon can assess your case, develop a tailored strategy, and advocate for the best possible outcome.
What happens if the alleged victim changes their story or refuses to testify?
Even if the complainant recants or is unwilling to testify, the Crown may still proceed with the case if there is other supporting evidence, such as video footage, medical records, or witness testimony. It’s not uncommon for assault charges to continue without the victim’s cooperation, especially in serious cases involving weapons.
Can I get a peace bond instead of going to trial for assault with a weapon?
In some cases, especially where the evidence is weak or the public interest in prosecution is low, the Crown may agree to resolve the matter with a peace bond. This typically requires the accused to agree to certain conditions (such as no contact with the complainant) but results in no criminal conviction. However, this is less likely in cases involving serious injury or firearms.
