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;
• 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 Counts as a Weapon Under Canadian Law

In Canada, the definition of a weapon is not limited to knives or firearms. According to the Criminal Code, anything used to cause injury or death, or just to threaten someone, can be considered a weapon.

This broad definition of a weapon in criminal law focuses on the intent rather than the object. Depending on the context, examples of what can be considered a weapon in Canada include household tools, kitchenware, caustic agents, or even a glass bottle or a brick when they are used to inflict injuries or threaten a victim.

In bringing charges for assault with a weapon, the key question is how the object was used in a specific incident. Meanwhile, if the Crown cannot prove that the object was used as a weapon, rather than being incidentally present, the case may fail.

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.