Assault with a weapon is a serious charge in Canada that carries a maximum penalty of 10 years in prison. If you have been charged with this crime and are preparing your case, you may be wondering what are the potential defences for assault with a weapon?
What is Assault with a Weapon?
Assault with a weapon under the Criminal Code of Canada is defined as follows:
Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on summary conviction who, in committing an assault, carries, uses or threatens to use a weapon or an imitation thereof.1
What is Assault Under the Criminal Code?
To prove assault with a weapon under Criminal Code provisions, the prosecution must first prove the assault component. Under section 265 of the Criminal Code, assault occurs when a person:
- Applies force intentionally to another person, without their consent.
- Attempts or threatens to apply force (by act or gesture), causing the other person to believe on reasonable grounds that force will be used.
- Accosts or impedes another person while openly carrying a weapon or an imitation weapon.
What Is a Weapon Under “Assault with a Weapon” in the Criminal Code?
A weapon is broadly defined in Canadian law. It can be:
- Anything used, designed to be used, or intended to be used to cause death or injury to a person.
- Anything used to threaten or intimidate another person.
Note that the object does not have to be a traditional weapon such as a firearm; hence, the claim that the object is “just a rolling pin” is not a defence. Under the Assault with a Weapon Criminal Code provisions an everyday item can lead to charges if it is used to threaten or harm another person.
What Are the Penalties for Assault with a Weapon?
Assault with a weapon is a hybrid offence in Canada. The Crown (the prosecution) can proceed with the case via summary conviction, which carries a maximum sentence of up to 18 months in prison, or via indictment, which is more serious and can lead to up to 10 years in prison.
The decision on how to proceed is the Crown’s and depends on the seriousness of the allegations and the circumstances of the case.
What Are the Potential Defences for Assault with a Weapon?
Although every case is different, there are several common legal defences that a criminal lawyer could use:
Self Defence or Defence of Another Person
One of the most common answers to the question “What are the potential defences for assault with a weapon?” is self-defence, which is covered in Section 34 of the Criminal Code. Under these provisions, individuals are permitted to use force to protect themselves or others when they are under threat.
Although it is common, this defence is not a straightforward one. The force must be reasonable and proportionate to the threat. The Supreme Court of Canada has emphasized in its rulings that self-defence must be both subjectively and objectively reasonable, taking into account not just the accused’s perception of the event but also whether a reasonable person would have acted the same way in that situation.
Lack of Intent
Another possible answer to “What are the potential defences for assault with a weapon?” is lack of intent. To secure a conviction, the prosecution must prove beyond a reasonable doubt that the accused intended to use force or threatened force with a weapon. If the incident was accidental or resulted from a misunderstanding, there was no intent and no crime.
Charter Rights Violations
In Canada the Canadian Charter of Rights and Freedoms protects each individual from unlawful search and seizure and being detained without cause while guaranteeing access to legal counsel. If the police violated any of these rights, the defence can take steps to have the charges dropped or to have some of the evidence excluded. In some cases, the exclusion of key pieces of evidence can leave the Crown with a much weaker case which they may decide not to pursue.
Mistaken Identity
If there is limited or unreliable evidence about the identity of the attacker, the defence may argue that the accused was not the person who committed the assault. When the Crown cannot prove beyond a reasonable doubt that the accused committed the offence, a charge of assault with a weapon in the Criminal Code may not stand.
Consent
Although less common in cases involving weapons, consent is sometimes raised as a defence to assault charges. To use this defence in an assault with a weapon case the accused would need to show that the complainant willingly participated in the activity and understood the risks involved. Even then, the courts generally do not recognize consent as a valid defence when serious bodily harm occurred or when a weapon was involved.
Why Hiring a Criminal Lawyer Is Important
The best person to ask, “What are the potential defences for assault with a weapon?” is an experienced criminal lawyer. These charges can be complex, and without a skilled lawyer by your side you are more likely to be convicted and more likely to face harsher penalties.
If you believe you will be arrested for assault with a weapon or you have already been charged, contact the team at Zamani Law, led by renowned criminal lawyer Farid Zamani. Our team has the skill, experience, and resources to build a robust defence against these very serious charges.
Contact Zamani Law today for a free consultation.
1 Criminal Code of Canada https://laws-lois.justice.gc.ca/eng/acts/c-46/section-267.html
