Aggravated Assault (Offence)

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Aggravated Assault
s. 268 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Judicial Release Only
Indictable Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum 14 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to aggravated assault are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".

Pleadings

Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
s. 268 [aggravated assault] Indictable Offence(s) N/A Yes

Offences under s. 268 are straight indictable. There is a Defence election of Court under s. 536(2).

Section 727 notice prior to plea is required if Crown is relying upon increased duration on a subsequent s. 109 weapons prohibition order.

Release

Offence(s) Attendance Notice
Without Arrest

s. 496
Summons
Without Arrest
s. 497
Release By
Arresting Officer
On Attendance Notice
s. 497
Release By
Officer-in-Charge
On a Promise to Appear
Undertaking or Recognizance
s. 498
Release By
a Judge or Justice
on a PTA, Undertaking or Recog.

s. 515
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 268 X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 268, the accused cannot be released by police under s. 497 or 498 and so must be held by police when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by an order of a judge or justice under s. 515. A youth will be subject to a maximum penalty of 3 years under s. 42(15) of the YCJA and can be given an attendance notice without arrest under s. 496 or a summons and if arrested, can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. The youth can also be released by a justice under s. 515.

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

A peace officer who charges a person under s. 268 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans
For all offences there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offences under s. 268 are designated offences eligible for wiretap under s. 183.

Section s. 268 offences are "primary designated offences" under s. 752 for the purpose of a Dangerous Offender Order. The offender will be deemed a "substantial risk" for the purpose of a Long-Term Offender Order under s. 753.1.

Offences under s. 268 are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Aggravated assault
268. (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.
Punishment
(2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
Excision
(3) For greater certainty, in this section, “wounds” or “maims” includes to excise, infibulate or mutilate, in whole or in part, the labia majora, labia minora or clitoris of a person, except where

(a) a surgical procedure is performed, by a person duly qualified by provincial law to practise medicine, for the benefit of the physical health of the person or for the purpose of that person having normal reproductive functions or normal sexual appearance or function; or
(b) the person is at least eighteen years of age and there is no resulting bodily harm.

Consent
(4) For the purposes of this section and section 265, no consent to the excision, infibulation or mutilation, in whole or in part, of the labia majora, labia minora or clitoris of a person is valid, except in the cases described in paragraphs (3)(a) and (b).

R.S., 1985, c. C-46, s. 268; 1997, c. 16, s. 5.


CCC

Proof of the Offence

Proving aggravated assault under s. 268 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. that an assault occurred (e.g. intentional application of force with no consent)
  5. the injuries sustained
  6. the injuries amounted to the victim being:
    1. wounded,
    2. maimed,
    3. disfigured, or
    4. had life endangered
  7. that there was no provocation

Interpretation of the Offence

The elements of aggravated assault are the same as those of common assault (s. 266) with the addition of:[1]

  1. the assault wounded, maimed or endangered life;
  2. the accused's conduct caused the wounding, maiming or endangerment; and
  3. a reasonable person would have realized the accused’s conduct would subject the victim to the risk of bodily harm
  1. R v McConnell, 2014 BCSC 973 (CanLII), at para 8
    R v Godin, 1994 CanLII 97 (SCC), [1994] 2 SCR 484, 89 CCC (3d) 574
    R v Brodie (1995), 1995 CanLII 2601 (BC CA), 60 BCAC 153

Actus Reus

The Crown does not need to prove that the accused had an intent to wound, maim or disfigure the complainant. However, he must prove that the accused had "objective foresight of bodily harm".[1] This same standard applies to assault causing bodily harm.[2]

"wound, maim or disfigure"
"Wound" refers to any break in the skin[3] or cutting of the skin or tissue which causes bleeding.[4] It generally refers to permanent damage.[5]

"Maiming" refers to "a hurt to the body that causes a person to be less able to fight".[6] This includes breaking of bones.

"Disfigure" refers to injuries that amount to "more than a temporary marring of the figure or appearance".[7]

Endangerment
The "endangerment" of life refers to the consequence of the injuries received (a product of wounds, maiming or disfigurement) and not simply the risk created by accused assaultive behaviour. No injuries are not necessary.[8]

  1. R v Godin, 1994 CanLII 97 (SCC), [1994] 2 SCR 484, 89 CCC (3d) 574 at p. 485
  2. R v Dewey, 1999 ABCA 5 (CanLII), at para 9
  3. R v Littletent, 1985 ABCA 22 (CanLII), AJ No. 256
  4. Littletent, ibid. at para 2
    R v Hilderman, 2005 ABQB 106 (CanLII) at para 9, 19
  5. R v Reid, 2013 ABPC 228 (CanLII) at para 24
  6. R v Schultz, [1962] 133 CCC 174 (Alta. S.C. App. Div.) (*no link)
  7. R v Innes and Brotchie, [1972] 7 CCC (2d) 544 (BCCA) (*no link)
  8. R v De Freitas 1999 CanLII 14071 (MB CA) at 11 and 12

Mens Rea

The mens rea for this offence is the same mens rea for common assault with the addition of an objective foresight of the risk of bodily harm.[1]

There is no need for an intent "to maim, wound or disfigure the complainant". The offence criminalizes the assault not the desire to bring about the consequence.[2]

An objective foresight standard means the Court must inquire whether "any reasonable person would inevitably realize" that the person who be subject to a "risk of, at least, some harm".[3]

A party to an offence under s. 21(1)(b), it is not necessary that the party have a greater mens rea than the principal. It also not necessary to establish an objective foresight of the specific wounds being caused by the assault.[4]

  1. R v Williams, 2003 SCC 41 (CanLII), [2003] 2 SCR 134
    R v Godin, 1994 CanLII 97 (SCC), [1994] 2 SCR 484 per Cory J. ("objective foresight of bodily harm")
  2. R v Nanemahoo, 2011 ABCA 182 (CanLII) at para 22
    Godin, supra per Cory J. ("It is not necessary that there be an intent to wound or maim or disfigure")
  3. R v DeSousa, [1992] 2 SCR 944, 1992 CanLII 80 (SCC)
  4. Nanemahoo, supra at para 23

Discharging a Firearm

Where the aggravated assault arises from the discharge of a firearm, the crown must prove:[1]

  1. that the accused intentionally applied force or intentionally threatened to apply while having the ability to carry it out;
  2. that a reasonable person in the accused's position would have been able to foresee that pointing or firing the firearm would subject the victim to a risk of bodily harm; and
  3. that actual wounding, maiming, or disfigurement resulted.
  1. R v Foti, 2002 MBCA 122 (CanLII)

Common Defences

The statutory defence of duress is excluded by s. 17 from applying to offences of aggravated assault.

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
For details on general principles and factors of assault-based offences, see Assaultive Offences (Sentencing)

Maximum Penalties

Offence(s) Crown
Election
Maximum Penalty
s. 268 [aggravated assault] N/A 14 years custody

Offences under s. 268 [aggravated assault] are straight indictable. The maximum penalty is 14 years incarceration.

Minimum Penalties
These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 268 N/A X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png


If convicted under s. 268 a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life". Offences under s. 268 are ineligible for a conditional sentence order under s. 742.1(c), when prosecuted by indictment, as the maximum period of incarceration is 14 years or life.

Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.

Principles

Aggravated assault is the most serious of violent crimes short of homicide and so must include incarceration.[1] General deterrence is the primary factor.[2]

The types of offences includes a range with the high end including unprovoked attack with a weapon. While a consensual fight that escalates tends to be on the lower end.[3]

It is only "in the rarest and most exceptional case will a suspended sentence be a demonstrably fit sentence for aggravated assault".[4]

Those instances of offences that are unprovoked and premeditated, the emphasis should be on denunciation, which should exclude a community-based sentence.[5]

  1. R v Marsman, 2007 NSCA 65 (CanLII)
    R v Keshane, 2005 SKCA 18 (CanLII), [2005] S.J. No. 97
  2. R v Perlin, [1977] NSJ No. 548 (*no link)
    R v Dzikowski, 1990 CanLII 2539 (NS CA), [1990] NSJ No. 353
    R v King, [1999] NSJ No. 331, 1999 NSCA 103 (CanLII)
  3. R v Craig, 2005 BCCA 484 (CanLII) at para 10
  4. R v Hamlyn, 2016 ABCA 127 (CanLII) at para 21
  5. R v Derkson, 2009 YKSC 66 (CanLII)

Ranges

see also: Aggravated Assault (Sentencing Cases)

The range of appropriate sentence can be very broad, ranging from suspended sentence to mid-range penitentiary sentences.[1]

In BC, it has been stated that the "range of sentence for similar offences [namely aggravated assault] was described as being between 16 months and six years”[2] Further it has been stated as "18 months to six years"[3] and "two years less a day to six years".[4]

In Newfoundland, it is suggested that aggravated assault where a knife is involved is in the range of 3 to 6 years. [5]

Ontario
In Ontario, the ranges of sentence have been separated into three groups.[6] There are those in the low range which are considered "exceptional" due to their unusual degree of mitigation which will reduce the amount of jail required. The second group consists of the middle range of 18 months to 2 years less a day. These involve first time offenders and arise from quasi-consensual fights that resort to excessive force. The third group is the high range which is generally between 4 to 6 years. These involve recidivists involved in unprovoked or premeditated violence with no suggestion of consent or self-defence.[7]

The upper range of 6 years are reserved for those offenders with a prior criminal record who commits an "unprovoked" and "premeditated" assaults.[8]

  1. see comments in R v Comeau [1999] O.J. No. 1540
    R v Peters, 2010 ONCA 30 (CanLII) -- court suggesting suspended sentence being available
  2. R v Craig, 2005 BCCA 484 (CanLII), 201 CCC (3d) 495
    R v Johnson, 1998 CanLII 4838 (BC CA), (1998), 131 CCC (3d) 274 (B.C.C.A)
  3. R v Willier, 2005 BCCA 404 (CanLII)
  4. R v Biln, 1999 BCCA 369 (CanLII)
  5. R v Wheeler, [2011] N.J. No. 391, 2011 CanLII 69366 (NL PC), at para 72
  6. R v Tourville, 2011 ONSC 1677 (CanLII)
    R v Brethour, 2013 ONSC 1167 (CanLII) at para 17-19
  7. Brethour, ibid. at para 17-19
  8. R v Tourville, supra at para 30

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order Conviction Description
DNA Orders s. 268
Weapons Prohibition Orders s. 268
  • On conviction under s. 268 where "violence against a person was used, threatened or attempted", and punishable by "imprisonment for ten years or more", the weapons prohibition order is mandatory under s. 109(1)(a) or where "violence was used, threatened or attempted against" an enumerated party relating to a domestic partnership a weapons prohibition order is mandatory under s. 109(1)(a.1).The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive".
      • Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life.
      • Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required.
  • For offences under s. 268 [if weapon etc. involved] where "the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance and, at the time of the offence, the person was prohibited" by court order, a mandatory weapons prohibition order under s. 109(1)(d) is required regardless of election.The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive".
      • Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life.
      • Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required.
Delayed Parole Order s. 268
  • Periods of imprisonment of 2 years or more for convictions under s. 268 are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".

General Sentencing Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay and the minimum amounts are smaller (15%, $50, or $100).

General Forfeiture Orders

Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

History

Prior to the 1997 amendments to s. 268, it read:

Aggravated assault
268. (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.
Punishment
(2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
R.S., 1985, c. C-46


See Also

References