Canadian Criminal Law/Offences/Assault with a Weapon

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Assault with a Weapon
s. 267(a) of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Maximum 18 months jail or $5,000 fine
Maximum 10 years jail
References
Offence Elements
Sentence Principles
Sentence Digests
Comments
DO/LTO primary designated offence

Legislation[edit]

267. Every one who, in committing an assault,

(a) carries, uses or threatens to use a weapon or an imitation thereof, or
(b) causes bodily harm to the complainant,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.


CCC

Proof of Offence[edit]

In addition to the requirement to prove identity, time and jurisdiction, the prosecution should prove:

  1. the accused assaulted the victim
  2. the accused committed the assault by use of a weapon or threaten to use a weapon

Interpretation[edit]

One cannot consent to being stabbed.[1]

  1. R. v. Carriere 1987 ABCA 39 (CanLII), (1987), 35 C.C.C. (3d) 276 (Alta. C.A.) per Laycraft C.J.at p. 287: ("One cannot consent to be stabbed. The public policy of the law intervenes to nullify the apparent consent of each of the combatants.")

Mens rea[edit]

An intention to throw an object without an intention to throw the object at someone, is not sufficient mens rea.[1] By contrast where there is objectively foreseeability of harm of the act, there may be liability.[2] Where the accused throws something carelessly it will usually not be sufficient intent for the mens rea. [3]

However, a recklessness in the act is sufficient to convict.[4]

The doctrine of transferred intent allows the intent to assault one person to satisfy the mens rea for an assault against another person where that second person was not the target. The result is that the intention of a failed assault will transfer to the successful assault of another person. [5]

  1. R. v. Vandergraff, (1994) 93 CCC (3d) 286 (Man. C.A.) a hockey fan at a game throws a jar of peanut butter onto the rink. The jar hits victim
  2. R. v. Nurse, (1993) 83 CCC (3d) 546 (Ont. C.A.) accused fires gun into the air and was convicted because it was objectively foreseeable that harm would be caused
  3. R. v. L.(A.), (2007) Carswell Nun. 26 (N.Ct. J.) accused carelessly, in anger and while intoxicated, throws a beer bottle at a dashboard and bounces off hitting someone
    R. v. Kemp, (1993) Carswell Sask. 116 (Sask. Q.B.) a hockey player, in frustration, shoots a puck into the bleachers hitting a person in the head
  4. R. v. Mooney, (1997) Carswell Ont. 4433 (O.Ct.J.) accused convicted for throwing a phone in the direction of accused, it bounces off a wall, hitting the victim in the head
  5. R. v. Delaney, (1989) Y.J. No. 182 (Y.T. Ct.) at 37
    See also: R. v. Deakin, [1974] 3 W.W.R. 435, 26 C.R.N.S. 236, 16 C.C.C. (2d) 1 (Man. Ct. of App.)
    R. v. Phan, 2009 ABPC 190, 476 A.R. 323 (ABPC)

Kienapple[edit]

Many cases state that an accused cannot be convicted of Assault with a Weapon and Assault Causing Bodily Harm where they arise out of the same circumstances.[1] The same goes for the offece of assault with a weapon and aggravated assault.[2]

Where the evidence is substantially the same for proving the elements of possession for a dangerous purpose and assault with a weapon, convictions on both are precluded.[3]

  1. e.g.R. v. Arnill, [1999] O.J. No. 332 (C.A.)
    R. v. Basilio 2003 CanLII 15531 (ON CA), (2003), 175 C.C.C. (3d) 440 (Ont. C.A.)
    R. v. Briscoe (1992), 17 B.C.A.C. 302
  2. R. v. Basilio, [2003] O.J. No. 1114 (Ont. C.A.)
  3. R. v. Briscoe 1992 CanLII 938 (BC CA), (1992), 76 C.C.C. (3d) 563 (B.C.C.A.)

Traditional Defences[edit]

See Also[edit]