Assault with a weapon and assault causing bodily harm are serious criminal offences with the possibility of lengthy prison sentences. A lawyer can help tailor the perfect defence for your case.
What is assault with a weapon or assault causing bodily harm?
Section 265 of the Criminal Code of Canada broadly defines assault as the intentional application of force onto another person, either directly or indirectly, without their consent. Under section 267 of the Criminal Code, a person can be charged with assault with a weapon or assault causing bodily harm if they:
- Carry, use, or threaten to use a weapon or an imitation of a weapon;
- Cause bodily harm to the complainant; or
- Choke, suffocate, or strangle the complainant.
If you intentionally apply force or threaten to apply force onto another person where a weapon or its imitation is used, then you can be charged with assault with a weapon. Even just waving a knife at someone or pointing a firearm in someone’s direction can be assault with a weapon.
In the case of assault causing bodily harm, the assault needs to cause the complainant bodily harm, which is an injury that interferes with the complainant’s health or comfort in more than a fleeting or trifling way.
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. A lawyer is in the best position to explain this area to you based on your situation.
Arrest and bail:
When you are arrested, officers must tell you of your right to counsel. This right allows you to speak to and retain a lawyer following arrest. It is always a good idea to exercise this right and obtain legal advice before speaking to police.
Due to the serious nature of these assault charges, you will likely be held in custody pending a bail hearing. You will be brought in front of a judicial official within 24 hours of your arrest. Not only will the best criminal lawyer in Toronto tell you what to do and what not to do when interacting with police, they can also start working on your release if you are being held in custody.
A lawyer can speak to the Crown about what is required to secure your release and can propose a bail plan. The plan often involves one or more people called “sureties.” A surety is someone you know who agrees to take responsibility for your release into the community. They pledge to pay a certain amount of money if you do not follow your conditions of release. Being a surety is a huge responsibility, and a lawyer can explain their role and adequately prepare them for court.
Everyone has a constitutional right to reasonable bail with respect to the amount of money sureties pledge and the conditions imposed on you. Reasonableness also includes the fact that you should not be denied bail without “just cause.”
The Crown may consent to your release based on the plan. If they have concerns about the plan, the nature of the assault, your chance of reoffending, your ability to follow conditions (especially if you have breached bail before), et cetera, they may contest your bail. Since these kinds of assaults are violent and injurious in nature, the Crown usually contests release—especially when they involve a weapon. A contested bail results in a bail hearing (also known as a “show cause” hearing). In line with the principles of reasonable bail, the Crown must “show cause” as to why it is in society’s best interest for you to be detained—although there are certain circumstances that require the accused to demonstrate why their detention is not justified. For example, if the charge involves a firearm or prohibited weapon, and you are already subject to a prohibition order, then the onus is on you to show why you should be released.
There are three grounds of detention upon which you can be denied bail. The Crown will state on which grounds they are seeking detention, which consider:
- Whether you are a flight risk (primary ground);
- Whether you pose a threat to the public (secondary ground); and
- Whether your detention is required to maintain confidence in the administration of justice (for example, due to the seriousness of the allegations and/or the strength of the Crown’s case) (tertiary ground).
The court will look at factors, such as your ties to the community, your personal situation (including the presence of a criminal record), the offence itself, and the strength of a proposed bail plan and adequacy of sureties, when considering these grounds.
As part of considering your release, the court will determine whether conditions should be imposed and what they should be to mitigate concerns, such as ensuring that you attend court and do not commit any further offences. These bail conditions can be stringent and restrictive and may include, but are not limited to:
- Supervision through sureties;
- Curfews or house arrest, including ankle monitoring;
- Refraining from use of drugs and alcohol;
- Mandatory counselling;
- No contact with certain individuals, such as the victim; and/or
- Restrictions on where you can travel.
When making this consideration, the Crown and the court are bound by the “ladder principle.” This principle means that when it comes to imposing conditions, the least restrictive conditions must be imposed unless the Crown can show that the less restrictive conditions are not appropriate in your case. The Supreme Court of Canada’s 2017 decision in R. v. Antic reinforced this principle. A number of courts, however, seem to have forgotten this obligation. A lawyer can help the court recognize that your detention is not necessary and can remind the court why less strict bail conditions are appropriate.
If you are denied bail, then you will remain in custody until your trial or resolution, although it is possible to ask for a bail review at the Superior Court. Obtaining bail can be an uphill battle. Hiring a lawyer maximizes your chances of being released.
It is important to recognize that breaching the terms of your bail conditions can result in further charges against you and the revocation of your bail.
Once a bail hearing is conducted, a lawyer can start preparing a successful defence for your case, if you choose to hire one.
A lawyer will ask the Crown for the disclosure of all relevant evidence against you. The Crown is obligated to disclose evidence about your case to your lawyer, regardless of whether or not that evidence will be used by the Crown in court. This disclosure is a fundamental feature of our criminal justice system. It helps to ensure that you have a fair trial and that you have the information needed to provide a full answer and defence. Having a lawyer by your side can be an advantage, as there are certain items of disclosure that the Crown will only release to counsel. If you do not have a lawyer, you may have to make arrangements with the Crown to review this evidence, which can be extremely time-consuming.
In some cases, disclosure can include hundreds (and sometimes thousands) of pages of documents, as well as hours of police interviews and surveillance footage. A lawyer will review these documents and can use them to effectively advocate for you.
A lawyer will then take steps to move the case along. Once disclosure is reviewed, a Crown pre-trial (CPT) is typically scheduled. The CPT allows the defence and the Crown to discuss issues in the case, as well as the Crown’s position. The CPT can be a springboard for further discussions and negotiations with the Crown. Depending on the case and how it proceeds, a judicial pre-trial (JPT) may also take place. The JPT allows a judge to weigh in and provide guidance in a more informal setting.
If you have retained a lawyer, you will not be present at the CPT or JPT. A lawyer’s expertise and experience can be invaluable at this stage. If you do not retain a lawyer, you most likely will have more difficulty speaking to the Crown, and your JPT will take place in open court instead of the judge’s chambers. You will be responsible for advocating for yourself, which can be an unnecessary stress added to an already challenging experience.
There can be a number of court appearances before a case is set down for trial or a plea is entered. A lawyer can explain the purpose of these appearances and even appear on your behalf, so you have one less thing to worry about.
If the Crown chooses to proceed by indictment, and the case goes to trial, there will come a time when you will be asked to make an election regarding your mode of trial. You will have the option of being tried by a provincial court judge, a judge alone in the Superior Court, or a judge and jury in the Superior Court. Making your election is a strategic decision. You will no doubt benefit from the support of a lawyer advising and guiding you through this lengthy and complicated process.
Consequences if found guilty:
Assault with a weapon and assault causing bodily harm are serious offences. As such, their consequences are severe. Not only will you have a criminal record, but you will also be facing a lengthy prison sentence. If the Crown prosecutes by summary conviction, you could face a maximum sentence of two years less a day and/or a fine of up to $5,000. If the Crown prosecutes by way of an indictment, you could face a maximum sentence of ten years in prison. In addition, depending on the assault and how the Crown proceeds, you could also be subject to a weapons prohibition order. There is also a DNA order involved, where your DNA is kept in a national database by the RCMP. If you can demonstrate that the impact on your privacy and security of the person is grossly disproportionate to the public interest, then the judge may not make the order. A lawyer can advocate on your behalf and prevent a DNA order from being made.
While these sentences are severe, there is the possibility of a discharge, as well as a conditional or suspended sentence, which allows you to avoid jail time. A lawyer can help you understand the range of sentences available and the possible ramifications of conviction. Moreover, they can help you avoid being convicted altogether. If you decide to plead guilty, they can negotiate with the Crown and present mitigating factors to the judge so you receive the best possible sentence in the circumstances.
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.
A lawyer can also do much more. They can:
- Work to secure your release with the most favourable conditions;
- Help you navigate the criminal justice system;
- Ensure that the Crown meets its disclosure obligations;
- Identify systematic or administrative errors in the criminal process, including Charter rights violations;
- Speak to the Crown on your behalf, negotiate, and advise you of your options;
- Assess all the evidence against you and build a strong defence, so the charges are withdrawn or you are acquitted;
- Gather further evidence to support your version of the events and to question the complainant’s reliability and credibility;
- Obtain a more lenient sentence in the event a guilty plea or conviction is entered.
All criminal cases are complex and fact specific. We have provided general information about how these assault cases are handled. Hiring a lawyer provides your best chance at mounting a successful defence. For more information about how we can help, please contact our team.