Assault with a Weapon and Assault Causing Bodily Harm

What is a weapon?

Weapons are defined under section 2 of the Criminal Code as anything that is used, designed to be used, or intended to be used to either:

• Cause the death or injury of another; or
• Threaten or intimidate another person.

Again, simply because the weapon may not have been used to actually cause the injuries is not enough to withdraw the charges. If the Crown can show that the weapon was used at all in the course of the offence or was used to threaten the complainant, the charge can still be made out.

Examples of weapons:

• Use of firearms or their imitation;
• Use of clubs, shovels, et cetera;
• Alcohol or beer bottles;
• Sharp objects, such as knives;
• Use of anything that can cause the complainant bodily harm or death.

What is bodily harm?

Bodily harm is defined under section 2 of the Criminal Code as any hurt or injury caused to the complainant that interferes with their health or comfort and is more than transient or trifling. The injury needs to be more than minor and must last more than a short period of time.

What if there was consent?

For the most part, an assault only occurs where there is a lack of consent. There are, however, also limits to what one can consent to, and it is dependent on the circumstances. As a general rule, you cannot consent to bodily harm, even if you consent to a fight. That being said, the distinction between what can and cannot be consented to can become complex. The best lawyer in Scarborough in is in the best position to explain this area to you based on your situation.

Arrest and Bail

When you are arrested, the police are under obligation to inform you of your Charter rights, including the right to remain silent and the right to retain a lawyer. It is best to invoke these rights, remain silent and get in touch with a criminal defence lawyer immediately to avoid hurting your case.

Due to the serious nature of these assault charges, you will likely be held in custody pending a bail hearing. The police shall bring you before a judge within 24 hours for a bail hearing or “as soon as possible if justice is not available within that period.” Retaining a lawyer before the bail hearing significantly increases your chances of release on bail and allows you to start working on the defence strategy without delay.

Everyone has a constitutional right to reasonable bail and cannot be denied bail without “just cause.” If the prosecution disagrees with the release, they must “show cause” why you should be detained, for example:

• if there is a “flight risk”,
• if your release poses a threat to the safety and security of the public,
• if detention is required to maintain public confidence in the justice system.

Your lawyer will address the prosecution’s arguments and help the court recognize why your detention is not necessary. The lawyer will also advocate for the most lenient bail restrictions according to the ladder principle, explaining to the court why less strict bail conditions are appropriate.

If you are denied bail, you will remain in custody until your trial or resolution, although it is possible to ask for a bail review at the Superior Court.

Awaiting Trial

There are a number of court appearances before a case is set for trial or a plea is entered, including Crown pre-trial (CPT) and Judicial pre-trial (JPT). During the CPT, the defence and the Crown can discuss the criminal matter and the position of the prosecution. Depending on how you decide to proceed with the case, a CPT can be followed by a judicial pretrial (JPT) where the judge will assess the case and provide guidance.

If your criminal matter proceeds to trial and the Crown chooses to continue by indictment, you will be asked to elect the mode of trial, which can have a serious impact on the outcome of your case and include:

• trial by a provincial court judge,
• trial by judge alone in the Superior Court,
• trial by judge and jury in the Superior Court.

Consequences if Found Guilty in Assault with a Weapon

Assault with a weapon and assault causing bodily harm are serious offences, which can have far-reaching repercussions, including a lengthy prison sentence in Canada and a criminal record. If convicted, the sentencing will depend on whether the Crown chooses to proceed summarily or by indictment with a maximum penalty of 10 years in prison.

Depending on the assault and how the Crown proceeds with the charges, you could also be subject to a weapons prohibition order. In addition, your conviction for assault with a weapon in Canada can be followed by the DNA order where your sample will be kept in the RCMP DNA database.

It’s Vital to Hire a Lawyer

Being charged with a criminal offence, such as assault with a weapon or assault causing bodily harm, is a stressful and tolling experience. It is important to seek professional advice from a lawyer about your rights from the beginning to avoid mistakes.

What Is the Punishment for Assault with a Weapon

The Criminal Code sets a range of penalties that the court would impose upon convicted persons depending on the gravity of the offence and its consequences.

The sentencing will depend on whether the Crown proceeds summarily or by indictment and include:

• maximum sentence of two years less a day and/or a fine of up to $5,000 for summary conviction,
• maximum sentence of ten years in prison if the Crown proceeds by indictment.

If assault with a weapon results in bodily harm, you can face charges both for assault with a weapon and assault causing bodily harm. Since weapons can cause severe injuries and wounds, the charges can be magnified to aggravated assault with an even higher penalty.

Defences to Assault with a Weapon

The defences to charges for assault with a weapon in Ontario depend on individual circumstances. During the examination of the prosecution’s case, your criminal lawyer will cross-examine the evidence and choose a defence strategy which has the best chance of achieving a favourable result in court.

Common defences to charges for assault with a weapon in Ontario include:

• Self-defence or defence of another. One of the defences used against charges of assault with a weapon is an argument that the accused had grounds to believe to be at risk and acted in self-defence. When claiming the defence of another, the accused needs to prove they had grounds to believe in the existence of a threat to the person they were protecting. Importantly, the accused needs to prove that their acts were reasonable or proportionate to the threat.
• Accident. Since the presence of intent is essential for conviction, another way to defend charges of assault with a weapon is to demonstrate that the accused did not intend to use the weapon to assault someone or cause harm. Meanwhile, without proving intent beyond a reasonable doubt, the prosecution will not be able to substantiate their case.
• Factual innocence. After assessing the evidence the Crown has against you, the defence can choose to raise doubt about the validity of any of the essential elements of the offence. If the prosecution fails to prove their case beyond a reasonable doubt, the case will be dismissed.