Assault with a Weapon or Causing Bodily Harm (Offence)

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Assault with a Weapon or Causing Bodily Harm
s. 267 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 6 months of the offence (786(2))
Jurisdiction Prov. Court

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

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-charge, or Judge
Summary 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 18 months incarceration
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 10 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

The offences of assault with a weapon and assault causing bodily harm are found in Part VIII of the Criminal Code relating to "Offences Against the Person and Reputation".

Pleadings

Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
s. 267 [assault with a weapon] and
s. 267 [assault causing bodily harm]
Hybrid Offence(s) Yes Yes, if Crown proceeds by Indictment

Offences under s. 267 are hybrid with a Crown election. If prosecuted by indictment, 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. 267 OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 267, the accused can be given an attendance notice without arrest under s. 496 or a summons. If arrested, he 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. He 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. 267 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. 267 are designated offences eligible for wiretap under s. 183.

Section s. 267 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. 267 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

Assault with a weapon or causing bodily harm
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.
R.S., 1985, c. C-46, s. 267; 1994, c. 44, s. 17.


CCC

Proof of the Offence

Proving assault with a weapon under s. 267(a) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit assaulted the victim
  5. the culprit committed the assault either:
    1. while carrying a weapon;
    2. "use of a weapon" or
    3. threaten to use a weapon.

Proving assault causing bodily harm under s. 267(b) should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit assaulted the victim
  5. "bodily harm" was inflicted on the victim;
  6. the assault caused the bodily harm
  7. seriousness of injuries:
    1. a hurt or injury interfered with the victim's health or comfort and whether it was "more than merely transient or trifling in nature"
    2. treatment / duration of injuries

Interpretation of the Offence

Actus Reus

See also: Common Assault (Offence)

The actus reus of assault with a weapon matches that of the offence of common assault but adds the additional act of using or threatening to use a weapon.

Threatens
The offence can be made out without applying any force or even intending to do so. A threat to assault with a weapon and the ability to do so is sufficient.[2]

  1. R v Swenson, 1994 CanLII 4683 (SK CA), [1994] 9 W.W.R. 124, 123 Sask. R. 106 (C.A.)
  2. R v Horncastle [1972] 8 CCC (2d) 253(*no link) (“... It is not necessary to constitute the offence of assault that the accused actually apply force or even intend to do so. It is sufficient if he threatens to do so and has the present ability to do so. Mens rea lies in the intention to threaten not in the intention to carry out that threat.”)
    R v Madsen, 1991 CanLII 7629 (SK QB), at para 9

Mens Rea

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]

Intent to assault is made out by heating a lighter and applying it to a child's arm to teach him a lesson.[6]

  1. R v Vandergraff, (1994) 93 CCC (3d) 286 (Man. C.A.)(*no link) 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.)(*no link) 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 CanLII 8899 (SK QB), (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.)(*no link) 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.)(*no link) at para 37
    See also: R v Deakin, [1974] 3 W.W.R. 435, 26 C.R.N.S. 236, 16 CCC (2d) 1 (Man. Ct. of App.)(*no link)
    R v Phan, 2009 ABPC 190 (CanLII), 476 A.R. 323 (ABPC)
  6. R v Earl, 2006 NSSC 52 (CanLII)

Intent

Assault causing bodily harm is a general intent offence.[1]

The accused does not need to intend the consequences of his actions. Where he is reckless whether the act caused bodily harm will be sufficient.[2]

The mens rea requires that there be an "objective foreseeability of risk of bodily harm" in general. There is no need for establishing the risk of the specific type of harm that occurs.[3]

Sufficient intent is made out where the accused was engaged in a course of conduct that was objectively dangerous and bodily harm results.[4]

An intention to intimidate or frighten is not sufficient to establish an intention to cause serious bodily harm.[5]

  1. R v M.K.K, 2012 SKQB 531 (CanLII) at para 5
    R v Janvier (1979), 1979 ALTASCAD 27 (CanLII), 11 C.R. (3d) 399, [1979] A.J. No. 251 (QL) (Alta. C.A.)
  2. See R v A.E. 2000 CanLII 16823 (ON CA), (2000), 146 CCC (3d) 449, 35 C.R. (5th) 386 (Ont. C.A.)
  3. See R v Dewey, 1999 ABCA 5 (CanLII), 1999 ABCA 5, 132 CCC (3d) 348
  4. See R v DeSousa (1992), 1992 CanLII 80, [1992] 2 SCR 944
    R v Van De Wiel (1997), 158 N.S.R.(2d) 368, 1997 CanLII 9923 (NSSC) at para 20
  5. See also, R v C.D.; R v C.D.K., 2005 SCC 78 (CanLII)
    R v Moquin, 2010 MBCA 22 (CanLII) at paras 22-28

Causing

See also: Causation

For an accused to be found to have caused injury from violence the court must be satisfied that the act was a "contributing cause...outside the de minimis range".[1] This has also been stated by concluding that the action must be a "contributing" cause and not just a "minimal" or "insignificant" cause.[2]

There is variation between jurisdictions on whether the crown must prove intention to cause harm. There is a line of cases that conclude that the Crown must prove that the harm was an "objectively foreseeable consequence of the assault".[3] There is also a line of cases that conclude that merely the intent to apply force is sufficient.[4]

The shooting of a gun into the air creates an objective foreseeability that a person will be hit by the falling bullets and suffer bodily harm.[5]

  1. Smithers v R., 1977 CanLII 7 (SCC), [1978] 1 SCR 506 at p. 89
  2. R v Pinske (1988), 30 B.C.L.R. (2d) 114 aff'd 1989 CanLII 47 (SCC), [1989] 2 SCR 979
  3. R v Palombi, 2007 ONCA 486 (CanLII)
    R v Dewey (1998) 132 CCC (3d) 348 (Sask. C.A.)(*no link)
    R v Nurse (1993), 83 CCC (3d) 546 (Ont. C.A.) (*no link)
    See also: R v Cador, 2010 ABCA 232 (CanLII)
  4. R v Swenson (1994), 91 CCC (3d) 541 (Sask. C.A.), 1994 CanLII 4683 (SK CA)
    R v Brooks (1988), 41 CCC (3d) 157 (BCCA), 1988 CanLII 3018 (BC CA)
    R v Munroe, (1978) 41 CCC (2d) 193 (NSCA) (*no link)
  5. R v Nurse, (1993) 83 CCC (3d) 546 (Ont. C.A.)

Consent

One cannot consent to being stabbed.[1]

  1. R v Carriere 1987 ABCA 39 (CanLII), (1987), 35 CCC (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.")

Cross-Referenced Terms

Section 2 defines weapons, and bodily harm. The section on weapons will also address the "use" of weapons.

Kienapple

See also: Kienapple Principle

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 offence 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]

A conviction can be entered on both aggravated assault and assault with a weapon.[4]

Kienapple does not apply to assault causing bodily harm and unlawful confinement, as "bodily harm" is an essential element to Assault CBH.[5]

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.[6]

  1. e.g.R v Arnill, 1999 CanLII 3188 (ON CA), [1999] O.J. No. 332 (C.A.)
    R v Basilio 2003 CanLII 15531 (ON CA), (2003), 175 CCC (3d) 440 (Ont. C.A.)
    R v Briscoe, 1992 CanLII 938 (BC CA), (1992), 76 CCC (3d) 563 (BCCA)
  2. R v Basilio
  3. R v Briscoe
  4. R v Foster, 2008 BCSC 1368 (CanLII),
  5. R v Bannert, 2009 ABCA 15 (CanLII)
  6. e.g. R v Arnill, [1999] O.J. No. 332 (C.A.), 1999 CanLII 3188 (ON CA)
    R v Basilio 2003 CanLII 15531 (ON CA), (2003), 175 CCC (3d) 440 (Ont. C.A.)
    R v Briscoe (1992), 17 BCAC 302, 1992 CanLII 938 (BC CA)

Considered Defences

The statutory defence of duress is excluded by s. 17 from applying to offences of assault causing bodily harm or with a weapon.

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 general principles and factors of violence and assault-based offences, see Violent and Assaultive Offences

Maximum Penalties

Offence(s) Crown
Election
Maximum Penalty
s. 267 [assault with weapon] or
s. 267 [assault causing bodily harm]
Summary Conviction 18 months custody
s. 267 [assault with weapon] or
s. 267 [assault causing bodily harm]
Indictable Election 10 years custody

Offences under s. 267 are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is 18 months jail.

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. 267 any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 267 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

Where assault offences involve weapons of any type "denunciation and deterrence are paramount factors in sentencing".[1]

  1. R v Hamlyn, 2016 ABCA 127 (CanLII), at para 21
    R v Gorman, 2008 ABCA 311 (CanLII) at para 8
    R v Ruksys, 2006 ABCA 270 (CanLII) at paras 7-8

Ranges

see also: Common Assault (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order Conviction Description
DNA Orders s. 267
Weapons Prohibition Orders s. 267
  • On conviction under s. 267 [causing] where "violence against a person was used, threatened or attempted", and was prosecuted by indictment, punishable by "imprisonment for ten years or more", the weapons prohibition order is mandatory under s. 109(1)(a).
  • For offences under s. 267 [weapon] 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.
  • Where there is a conviction under s. 267 [summary conviction] for an offence not otherwise referred to in s. 109, where "violence against a person was used, threatened or attempted" or "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", a discretionary prohibition order of any of these items is permitted under s. 110 regardless of Crown election where "it is desirable, in the interests of the safety of the person or of any other person".
      • Duration: The Order is for no more than 10 years starting at release from custody or at sentencing where custody is not ordered. If there is a prior conviction for an offence eligible for a s. 109 Order, the duration must be life. If violence is "used, threatened or attempted against" their past or present intimate partner, a child or parent of the said partner, or a person who resides with the said partner or the offender, the duration can be up to life in duration.
      • If the judge declines to make an Order or not order all the possible terms, "the court shall include in the record a statement of the court's reasons for not doing so." (s. 110(3))
Delayed Parole Order s. 267
  • Periods of imprisonment of 2 years or more for convictions under s. 267 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.

See Also

Related Offences

Motions