Weapons Trafficking (Offence) and Aggravated Assault (Offence): Difference between pages

From Criminal Law Notebook
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{{HeaderOffences}}
{{HeaderOffences}}
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{{OffenceBox |OffenceTitle=Weapons Trafficking |OffencePage=Weapons Trafficking |Section=99, 100, 101, 102 and 103|Act={{OBCCC}} |CrownElection={{OBIndictableElection}} {{OBHybridElection}} {{OBHybridIndictableElection}} |Jurisdiction={{OBJurisdictionAll}} |Bail={{OBBailVar}} |SummaryDisp= {{OBDispAll}} |SummaryMin= {{OBMinNone}} |SummaryMax= {{OBSConviction}} (101)<Br>{{OBTime|1 year}} (102) |IndictableDisp= {{OBDispMinVar}} |IndictableMin=
{{OffenceBox |OffenceTitle=Aggravated Assault |OffencePage=Aggravated Assault |Section=268|Act={{OBCCC}} |CrownElection={{OBIndictableElection}}|Jurisdiction={{OBJurisdictionAll}} |Bail={{OBBailJudge}} |IndictableDisp= {{OBDisp14orLife}} |IndictableMin= {{OBMinNone}} |IndictableMax= {{OBTime|14 years}} }}
{{OBTime|1 year}} (non-firearm) <br>
{{OBTime|3 year}} (first, firearm)<br>
{{OBTime|5 year}} (subseq., firearm)
|IndictableMax= {{OBTime|5, 10 years}} }}


==Overview==
==Overview==
{{seealso|Weapon Offences}}
{{OverviewVIII|aggravated assault}}


{{OverviewIII|weapons trafficking}}
; Pleadings
 
'''Pleadings'''<br>
{{PleadingsHeader}}
{{PleadingsHeader}}
{{PleadingsIndictableList|s. 99 [weapons trafficking],<Br>s. 100 [Possession for purpose of weapons trafficking], and<br> s. 103 [importing or exporting firearms knowing it is unauthorized]| {{NA}} |Yes}}
{{PleadingsIndictableList|s. 268 [aggravated assault] | {{NA}} | Yes}}
{{PleadingsHybridList|s. 101 [transfer without authority],<br>s. 102 [making automatic firearm] | Yes | {{YesIfCrown}} }}
{{PleadingsEnd}}
{{PleadingsEnd}}


{{PleadingsIndictElection|s. 99, 100, and 103}}
{{PleadingsIndictElection|s. 268}}
 
{{PleadingsHybridElection|s. 101 and 102}}


{{Section109Notice}}
{{Section109Notice}}


'''Release'''<br>
; Release
 
{{ReleaseHeader}}
{{ReleaseHeader}}
|s. 99, 100 or 103 || {{ReleaseProfileOnlyBail}}
|s. 268 || {{ReleaseProfileOnlyBail}}  
|-
|s. 101 or 102 || {{ReleaseProfileAll}}  
|-
|-
{{ReleaseEnd}}
{{ReleaseEnd}}
{{ReleaseOnlyBail|s. 99, 100, or 103}}


{{ReleaseAllOptions|s. 101 or 102}}
{{ReleaseOnlyBail|s. 268}}
 
Under s. 515(6)(a)(vi), there will be a [[Reverse Onus|reverse onus]] for offence charged under section 99, 100 or 103.


:''Reverse Onus Bail''
:''Reverse Onus Bail''
Line 43: Line 28:


:''Fingeprints and Photos''
:''Fingeprints and Photos''
{{IDCriminalAct|s. 99, 100, 101, 102, or 103}}
{{IDCriminalAct|s. 268}}


'''Publication Orders'''<br>
; Publication Bans
{{GeneralPubBan}}
{{GeneralPubBan}}


; Offence Designations
; Offence Designations
{{DesignationHeader}}
{{DesignationHeader}}
|-
|s. 268 || {{OKMark}} <!--wire--> || {{OKMark}} (''Primary'')<!--DO-->||{{OKMark}} <!--SPIO--> || {{XMark}} <!--consent-->
|s. xxx || {{OKMark}} <!--wire--> || {{OKMark}} <!--DO-->||{{OKMark}} <!--SPIO--> || {{XMark}} <!--consent-->
{{DesignationEnd}}
{{DesignationEnd}}
{{SPIODesignation|A|s. 99, 100, 102, and 103}}


{{SeeBelowForAncillary}}
{{WiretapDesignation|s. 268}}


==Offence Wording==
{{DOPrimaryDesignation|s. 268}}


{{quotation|
{{SPIODesignation|A|s. 268}}
'''Weapons trafficking'''<br>
99 (1) Every person commits an offence who
:(a) manufactures or transfers, whether or not for consideration, or
:(b) offers to do anything referred to in paragraph (a) in respect of


a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition knowing that the person is not authorized to do so under the Firearms Act or any other Act of Parliament or any regulations made under any Act of Parliament.
{{SeeBelowForAncillary}}
<br>
'''Punishment — firearm'''<br>
(2) Every person who commits an offence under subsection (1) when the object in question is a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited device, any ammunition or any prohibited ammunition is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of
:(a) in the case of a first offence, three years; and
:(b) in the case of a second or subsequent offence, five years.
 
'''Punishment — other cases'''<br>
(3) In any other case, a person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of one year.
<br>
R.S., 1985, c. C-46, s. 99; 1995, c. 39, s. 139; 2008, c. 6, s. 10; 2015, c. 27, s. 23.
|[http://canlii.ca/t/7vf2#sec99 CCC]
}}


==Offence Wording==
{{quotation|
{{quotation|
'''Possession for purpose of weapons trafficking'''<br>
'''Aggravated assault'''<br>
100 (1) Every person commits an offence who possesses a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition for the purpose of
268. (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.
:(a) transferring it, whether or not for consideration, or
:(b) offering to transfer it,
 
knowing that the person is not authorized to transfer it under the Firearms Act or any other Act of Parliament or any regulations made under any Act of Parliament.
<br>
<br>
'''Punishment — firearm'''<br>
; Punishment
(2) Every person who commits an offence under subsection (1) when the object in question is a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited device, any ammunition or any prohibited ammunition is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of
(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.
:(a) in the case of a first offence, three years; and
:(b) in the case of a second or subsequent offence, five years.
 
'''Punishment — other cases'''<br>
(3) In any other case, a person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of one year.
<br>
<br>
R.S., 1985, c. C-46, s. 100; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st Supp.), ss. 14, 203, c. 27 (2nd Supp.), s. 10, c. 1 (4th Supp.), s. 18(F); 1990, c. 16, s. 2, c. 17, s. 8; 1991, c. 40, s. 12; 1992, c. 51, s. 33; 1995, c. 22, ss. 10, 18(F), c. 39, s. 139; 1996, c. 19, s. 65; 2008, c. 6, s. 11; 2015, c. 27, s. 24.
; Excision
|[http://canlii.ca/t/7vf2#sec100 CCC]
(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.<br>


{{quotation|
; Consent
'''Transfer without authority'''<br>
(4) For the purposes of this section and section 265 [''[[Common Assault (Offence)|common assault]]''], 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).
101 (1) Every person commits an offence who transfers a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition to any person otherwise than under the authority of the Firearms Act or any other Act of Parliament or any regulations made under an Act of Parliament.
<br>
<br>
'''Punishment'''<br>
(2) Every person who commits an offence under subsection (1)
:(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
:(b) is guilty of an offence punishable on summary conviction.


R.S., 1985, c. C-46, s. 101; 1991, c. 40, s. 13; 1995, c. 39, s. 139; 2015, c. 27, s. 25.
R.S., 1985, c. C-46, s. 268; 1997, c. 16, s. 5.<br>{{Annotations}}
|[http://canlii.ca/t/7vf2#sec101 CCC]
|[http://canlii.ca/t/7vf2#sec268 CCC]
}}
 
{{quotation|
'''Making automatic firearm'''<br>
102. (1) Every person commits an offence who, without lawful excuse, alters a firearm so that it is capable of, or manufactures or assembles any firearm that is capable of, discharging projectiles in rapid succession during one pressure of the trigger.
<br>
'''Punishment'''<br>
(2) Every person who commits an offence under subsection (1)
:(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; or
:(b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.
 
R.S., 1985, c. C-46, s. 102; R.S., 1985, c. 27 (1st Supp.), s. 203; 1991, c. 28, s. 9, c. 40, s. 14; 1995, c. 39, s. 139.
|[http://canlii.ca/t/7vf2#sec102 CCC]
}}
 
{{quotation|
'''Importing or exporting knowing it is unauthorized'''<br>
103 (1) Every person commits an offence who imports or exports
:(a) a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition, or
:(b) any component or part designed exclusively for use in the manufacture of or assembly into an automatic firearm,
knowing that the person is not authorized to do so under the Firearms Act or any other Act of Parliament or any regulations made under an Act of Parliament.
<br>
'''Punishment — firearm'''<br>
(2) Every person who commits an offence under subsection (1) when the object in question is a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited device or any prohibited ammunition is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of
:(a) in the case of a first offence, three years; and
:(b) in the case of a second or subsequent offence, five years.
 
'''Punishment — other cases'''<br>
(2.1) In any other case, a person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of one year.
<br>
'''Attorney General of Canada may act'''<br>
(3) Any proceedings in respect of an offence under subsection (1) may be commenced at the instance of the Government of Canada and conducted by or on behalf of that government.
<br>
R.S., 1985, c. C-46, s. 103; 1991, c. 40, s. 15; 1995, c. 39, s. 139; 2008, c. 6, s. 12; 2015, c. 27, s. 26.
|[http://canlii.ca/t/7vf2#sec103 CCC]
}}
}}


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{{ElementLeft}}
{{ElementLeft}}


{{Proving|weapons trafficking|99}}
{{Proving|aggravated assault|268}}
{{InitialElements}}
{{InitialElements}}
# {{box}} the culprit "manufactures or transfers" or "offers to" manufacture or transfer a thing to anyone {{ARConduct}};
# {{box}} that an assault occurred (e.g. intentional application of force with no consent)
# the thing was "a firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition" {{ARCirc}};
# the injuries sustained
# the culprit ''knew'' that he was "not authorized to do so under the Firearms Act" or any other federal act or regulations {{MRCirc}}.
# the injuries amounted to the victim being:
## {{box}} wounded,
## {{box}} maimed,
## {{box}} disfigured, or
## {{box}} had life endangered
# that there was no provocation


{{ElementRight}}
{{ElementEnd}}


{{Proving|possession of weapons for the purpose of trafficking|100}}
==Interpretation of the Offence==
{{InitialElements}}
The elements of aggravated assault are the same as those of common assault (s. 266) with the addition of:<ref>
# {{box}} the culprit possesses a thing
''R v McConnell'', [http://canlii.ca/t/g722v 2014 BCSC 973] (CanLII){{perBCSC|Romilly J}}{{at|8}}<br>
# the thing was "a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition ";
''R v Godin'', [http://canlii.ca/t/1frs1 1994 CanLII 97] (SCC), [1994] 2 SCR 484, 89 CCC (3d) 574{{perSCC|Cory J}}<br>
# the culprit possesses it for the purpose of "transferring it" or "offering to transfer it";
''R v Brodie'' (1995), [http://canlii.ca/t/1ddb9 1995 CanLII 2601] (BC CA), 60 BCAC 153{{perBCCA|Taylor JA}}<br>
# the culprit knew that possession was "not authorized to transfer it under the Firearms Act or any other Act of Parliament or any regulations".
</ref>
# the assault wounded, maimed or endangered life;  
# the accused's conduct caused the wounding, maiming or endangerment; and
# a reasonable person would have realized the accused’s conduct would subject the victim to the risk of bodily harm


{{ElementLeft}}
{{reflist|2}}
===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".<ref>
''R v Godin'', [http://canlii.ca/t/1frs1 1994 CanLII 97] (SCC), [1994] 2 SCR 484, 89 CCC (3d) 574{{perSCC|Cory J}} at p. 485</ref>
This same standard applies to assault causing bodily harm.<ref>
''R v Dewey'', [http://canlii.ca/t/5sd3 1999 ABCA 5] (CanLII){{perABCA|McClung JA}}{{at|9}}<br>
</ref>


{{Proving|Transfer without authority|101}}
'''"wound, maim or disfigure"'''<br>
{{InitialElements}}
"Wound" refers to any break in the skin<ref>''R v Littletent'', [http://canlii.ca/t/2dgqb 1985 ABCA 22] (CanLII), AJ No. 256{{perABCA|Moir JA}}</ref> or cutting of the skin or tissue which causes bleeding.<ref>
# {{box}} the culprit transfers a thing to a person;
{{ibid1|Littletent}}{{at|2}}<br>
# the thing was "a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition"; and
''R v Hilderman'', [http://canlii.ca/t/1jxhm 2005 ABQB 106] (CanLII){{perABQB|Martin J}} at para 9, 19<br>
# the transfer was not "under the authority of the Firearms Act or any other Act of Parliament or any regulations made under an Act of Parliament."
</ref>
 
It generally refers to permanent damage.<ref>
{{ElementRight}}
''R v Reid'', [http://canlii.ca/t/gk9z6 2013 ABPC 228] (CanLII){{perABPC|Semenuk J}}{{at|24}}<br>
 
</ref>
{{Proving|Making automatic firearm|102}}
{{InitialElements}}
# {{box}} the culprit "alters a firearm" or "manufactures or assembles any firearm";
# the prohibited conduct results in the firearm being "capable of, discharging projectiles in rapid succession during one pressure of the trigger"; and
# the culprit does the prohibited conduct without "lawful excuse".


{{ElementLeft}}
"Maiming" refers to "a hurt to the body that causes a person to be less able to fight".<ref>
''R v Schultz'', [1962] 133 CCC 174 (Alta. S.C. App. Div.), [http://canlii.ca/t/gd6g1 1962 CanLII 553] (AB CA){{perABCA|Smith CJ}}</ref> This includes breaking of bones.


{{Proving|Importing or exporting knowing it is unauthorized|103}}
"Disfigure" refers to injuries that amount to "more than a temporary marring of the figure or appearance".<ref>
{{InitialElements}}
R v Innes and Brotchie, [1972] 7 CCC (2d) 544 (BCCA), [http://canlii.ca/t/htxht 1972 CanLII 1255] (BC CA){{perBCCA|McFarlane JA}}</ref>
# {{box}} the culprit "imports or exports" a thing;
# the thing is either:
## " prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition", or
## "any component or part designed exclusively for use in the manufacture of or assembly into an automatic firearm" and
# the culprit knew that they were "not authorized to do so under the Firearms Act or any other Act of Parliament or any regulations made under an Act of Parliament".


{{ElementRight}}
; 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.<ref>
''R v De Freitas'', [http://canlii.ca/t/1qwld 1999 CanLII 14071] (MB CA){{perMBCA|Twaddle JA}} at 11 and 12</ref>


{{ElementEnd}}
{{reflist|2}}


==Interpretation of the Offence==
===Mens Rea===
Weapons trafficking is a wiretap eligible offence under s. 183.<ref>
The ''mens rea'' for this offence is the same ''mens rea'' for [[Common Assault (Offence)|common assault]] with the addition of an objective foresight of the risk of bodily harm.<ref>
See [[Wiretaps#"Offences"]]
''R v Williams'', [http://canlii.ca/t/50dc 2003 SCC 41] (CanLII), [2003] 2 SCR 134{{perSCC|Binnie J}}<br>
''R v Godin'', [http://canlii.ca/t/1frs1 1994 CanLII 97] (SCC), [1994] 2 SCR 484{{perSCC|Cory J}} ("objective foresight of bodily harm")<br>
</ref>
</ref>


Section 84(1) defines "transfer" which means to "sell, provide, barter, give lend, rent, send, transport, ship, distribute or deliver".
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.<ref>
''R v Nanemahoo'', [http://canlii.ca/t/fltq0 2011 ABCA 182] (CanLII){{TheCourtABCA}}{{at|22}}<br>
{{supra1|Godin}}{{perSCC|Cory J}} ("It is not necessary that there be an intent to wound or maim or disfigure")<br>
</ref>


'''Traffic by Offer'''<br>
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".<ref>
Similar to drug trafficking, the act of trafficking in weapons can be made out by an offer alone regardless of the actual intention to sell or give the thing offered.
''R v DeSousa'', [1992] 2 SCR 944, [http://canlii.ca/t/1fsb0 1992 CanLII 80] (SCC){{perSCC|Sopinka J}}
<ref>
''R v Burke'', [http://canlii.ca/t/g71j5 2014 ONSC 3199] (CanLII){{perONSC|Trotter J}} at para 25<br>
</ref>
</ref>


'''Definitions'''<br>
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.<ref>
Section 84 defines "firearms".<ref>
{{supra1|Nanemahoo}}{{at|23}}<br>
see [[Definition of Firearms]]
</ref>
</ref>


{{reflist|2}}
{{reflist|2}}
===Discharging a Firearm===
Where the aggravated assault arises from the discharge of a firearm, the crown must prove:<ref>
''R v Foti'', [http://canlii.ca/t/5htb 2002 MBCA 122] (CanLII){{perMBCA|Steel JA}}</ref>
# that the accused intentionally applied force or intentionally threatened to apply while having the ability to carry it out;
# 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
# that actual wounding, maiming, or disfigurement resulted.
{{Reflist|2}}
==Common Defences==
* [[Self-Defence and Defence of Another |Self-Defence]]
* [[Self-Defence and Defence of Another |Defence of Another]]
* [[Defences|Defence of Property]]
* [[Defences|Reflex]]
The statutory defence of [[Duress|duress]] is excluded by s. 17 from applying to offences of aggravated assault.


==Participation of Third Parties==
==Participation of Third Parties==
{{seealso|Role of the Victim and Third Parties|Testimonial Aids for Young, Disabled or Vulnerable Witnesses}}
{{seealso|Role of the Victim and Third Parties|Testimonial Aids for Young, Disabled or Vulnerable Witnesses}}


'''Testimonial Aids'''<br>
; Testimonial Aids
{{3rdPTestimonyAids}}
{{3rdPTestimonyAids}}


'''On Finding of Guilt'''<br>
'''On Finding of Guilt'''<br>
{{606NoticeSPIO|s. 99 to 103}}
 
{{606NoticeSPIO|s. 268}}


{{RestitutionNotice}}
{{RestitutionNotice}}
Line 232: Line 179:
==Sentencing Principles and Ranges==
==Sentencing Principles and Ranges==
{{seealsoSentencing}}
{{seealsoSentencing}}
{{seealsoSentencingWeapons}}
:''For details on general principles and factors of assault-based offences, see [[Violent and Assaultive Offences (Sentencing)]]''


===Sentencing Profile===
; Maximum Penalties
'''Maximum Penalties'''<br>
{{SProfileMaxHeader}}
{{SProfileMaxHeader}}
{{SProfileMax|s. 99 [weapons trafficking],<Br>s. 100 [possession for the purpose of trafficking],<br>s. 103 [importing or exporting knowing it is unauthorized] |{{NA}}| 10 years custody}}
{{SProfileMax|s. 268 [aggravated assault] | {{NA}} | 14 years custody }}
{{SProfileMax|s. 101 [transfer without authority],<br>s. 102 [making automatic firearm] | Summary Election | 1 year custody}}
{{SProfileMax|s. 101 [transfer without authority] | Indictable Election | 5 years custody}}
{{SProfileMax|s. 102 [making automatic firearm]| Indictable Election | 10 years custody}}
{{SProfileEnd}}
{{SProfileEnd}}


{{MaxPenaltyIndictment|s. 99, 100 and 103|'''10 years incarceration'''}}
{{MaxPenaltyIndictment|s. 268 [aggravated assault]|'''14 years incarceration'''}}
 
; Minimum Penalties
{{NoMinimumPenalties}}
 
; Available Dispositions
{{SProfileAvailHeader}}
|s. 268 || {{NA}} || {{SProfileNoDischargeOrCSO}}


{{MaxPenaltyHybrid|s. 101 and 102|'''5 years incarceration''' under s. 101 and '''10 years incarceration''' under s.102|'''1 year incarceration'''}}
{{SProfileEnd}}


'''Minimum Penalties'''<br>
{{NoDischargeAvailable|s. 268}}
For offences under s. 99, 100 and 103, the minimum penalty is '''3 years''' or '''5 years''' with a prior conviction(s) where the offence involved a "firearm, a prohibited device, any ammunition or any prohibited ammunition". Otherwise, the minimum penalty is '''1 year''' incarceration.
{{NoCSOAvailable|C|s. 268}}


For offences under s. 102, the minimum penalty is '''1 year''' when prosecuted by indictment.
; Consecutive Sentences
{{NoConsecutive}}


'''Available Dispositions'''<br>
=== Principles ===
{{SProfileAvailHeader}}
Aggravated assault is the most serious of violent crimes short of homicide and so must include incarceration.<ref>
|s. 99, 100, and 103 || {{NA}} || {{SProfileOnlyFedJail}}
''R v Marsman'', [http://canlii.ca/t/1s056 2007 NSCA 65] (CanLII){{perNSCA|MacDonald CJ}} (3:0)<br>
|-
''R v Keshane'', [http://canlii.ca/t/1jv3v 2005 SKCA 18] (CanLII), [2005] S.J. No. 97{{perSKCA|Cameron JA}} (3:0)
|s. 102 || Summary || {{SProfileAll}}
</ref> General deterrence is the primary factor.<ref>  
|-
''R v Perlin'', [1977]  NSJ No. 548 {{NOCANLII}}<br>
|s. 102 || Indictment || {{SProfileNoDischargeOrCSO}}
''R v Dzikowski'', [http://canlii.ca/t/1mssr 1990 CanLII 2539] (NS CA), [1990] NSJ No. 353{{perNSCA|Matthews JA}} (3:0)<br>
|-
''R v King'', [1999] NSJ No. 331, [http://canlii.ca/t/1f0zg 1999 NSCA 103] (CanLII){{TheCourtNSCA}} (3:0)</ref>
{{SProfileEnd}}
 
The types of offences include a range with the high end including an unprovoked attack with a weapon. While a consensual fight that escalates tends to be on the lower end.<ref>
''R v Craig'', [http://canlii.ca/t/1lsh2 2005 BCCA 484] (CanLII){{perBCCA|Kirkpatrick JA}} (3:0) at para 10</ref>
 
It is only "in the rarest and most exceptional case will a suspended sentence be a demonstrably fit sentence for aggravated assault".<ref>
''R v Hamlyn'', [http://canlii.ca/t/gr5kg 2016 ABCA 127] (CanLII){{TheCourtABCA}} (3:0) at para 21<br>
</ref>
 
Those instances of offences that are unprovoked and premeditated, the emphasis should be on denunciation, which should exclude a community-based sentence.<ref>
''R v Derkson'', [http://canlii.ca/t/26s7j 2009 YKSC 66] (CanLII){{perYKSC|Richard J}}
</ref>


{{OnlyJailAvailable|s. 99, 100, and 103}}
{{Reflist|2}}


For convictions under s. 102, there are no [[Conditional Sentences|conditional sentence]], [[Discharges|discharges]], stand-alone fines or [[Probation Orders|suspended sentences]] when prosecuted by indictment.
=== Ranges ===
{{seealsoRanges|Aggravated Assault}}
The range of appropriate sentence can be very broad, ranging from suspended sentence to mid-range penitentiary sentences.<ref>
see comments in R v Comeau [1999] OJ No 1540{{NOCANLII}}<br>
''R v Peters'', [http://canlii.ca/t/27jkz 2010 ONCA 30] (CanLII){{perONCA|Blair JA}} (3:0) -- court suggesting suspended sentence being available<br>
</ref>
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”<ref>
''R v Craig'', [http://canlii.ca/t/1lsh2 2005 BCCA 484] (CanLII), 201 CCC (3d) 495{{perBCCA|Kirkpatrick JA}} (3:0)<br>
''R v Johnson'', [http://canlii.ca/t/1f0vs 1998 CanLII 4838] (BC CA), (1998), 131 CCC (3d) 274 (B.C.C.A){{perBCCA|Prowse JA}} (3:0)<br>
</ref> Further it has been stated as "18 months to six years"<ref>
''R v Willier'', [http://canlii.ca/t/1lb8k 2005 BCCA 404] (CanLII){{perBCCA|Smith JA}} (3:0)</ref> and "two years less a day to six years".<ref>''R v Biln'', [http://canlii.ca/t/546t 1999 BCCA 369] (CanLII){{perBCCA|McEachern JA}} (3:0)</ref>


'''Consecutive Sentences'''<Br>
In Newfoundland, it is suggested that aggravated assault where a knife is involved is in the range of 3 to 6 years.
{{NoConsecutive}}
<ref>''R v Wheeler'', [2011] N.J. No. 391, [http://canlii.ca/t/fnp98 2011 CanLII 69366] (NL PC){{perNLPC|Gorman J}}{{at|72}}</ref>


===Principles===
; Ontario
In Ontario, the ranges of sentence have been separated into three groups.<ref>''R v Tourville'', [http://canlii.ca/t/fknxs 2011 ONSC 1677] (CanLII){{perONSC|Code J}}<br>
''R v Brethour'', [http://canlii.ca/t/fw7xj 2013 ONSC 1167] (CanLII){{perONSC|Beaudoin J}} at para 17-19</ref> 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.<ref>
{{ibid1|Brethour}} at para 17-19</ref>


===Ranges===
The upper range of 6 years are reserved for those offenders with a prior criminal record who commits an "unprovoked" and "premeditated" assaults.<ref>
{{seealsoRanges|Weapons Trafficking}}
{{supra1|Tourville}}{{at|30}}<br>
</ref>
 
{{reflist|2}}


==Ancillary Sentencing Orders==
==Ancillary Sentencing Orders==
Line 279: Line 257:
'''Offence-specific Orders'''
'''Offence-specific Orders'''
{{AOrderHeader}}
{{AOrderHeader}}
 
| [[DNA Orders]] ||s. 268 ||
{{AOrder1| [[DNA Orders]] |s. 99, 100, 101, 102 or 103 |
** {{PrimDNA1|s. 268}}
* {{SecondDNA(AorB)|s. 99, 100, or 103}}
|-
* {{SecondDNA(AorB)Hybrid|s. 101 or 102}} }}
| [[Weapons Prohibition Orders]] ||s. 268||
 
* {{Section109|A|s. 268}}
{{AOrder1| [[Weapons Prohibition Orders]] |s. 99, 100, 101, 102 or 103 |
* {{Section109|D|s. 268 [if weapon etc. involved]}}
* {{Section109|BorC|s. 99(1), 100(1), 102 or 103(1)}}
|-
* {{Section109|A|s. 99, 100, 101, 102 or 103}}
| [[Delayed Parole Eligibility|Delayed Parole Order]]||s. 268||
* {{Section109|D|s. 99, 100, 101, 102 or 103}}
* {{ParoleDelayEligible|1|s. 268}}
* {{section110|s. 99, 100, 101, 102 or 103}} }}


{{AOrderEnd}}
{{AOrderEnd}}
'''General Sentencing Orders'''
'''General Sentencing Orders'''
{{GeneralSentencingOrders}}
{{GeneralSentencingOrders}}
Line 298: Line 274:
{{GeneralForfeitureOrders}}
{{GeneralForfeitureOrders}}


==Record Suspensions and Pardons==
==History==
==History==
{{seealso|List of Criminal Code Amendments}}


* [[History of Weapons Trafficking (Offence)]]
Prior to the 1997 amendments to s. 268, it read:
{{quotation|
'''Aggravated assault'''<br>
268. (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.
<br>
; 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.
<br>
R.S., 1985, c. C-46
}}


==See Also==
==See Also==
* [[Drug Trafficking]]
; References
'''References'''
* [[Pre-Trial and Trial Motions Checklist]]
* [[Pre-Trial and Trial Motions Checklist]]
{{OffencesNavBox/Weapons}}


[[Category:Offences with Maximum Penalty of 12 Months]]
{{OffencesNavBar/Violence}}
[[Category:Offences with Maximum Penalty of 5 Years]]
 
[[Category:Offences with Maximum Penalty of 10 Years]]
 
[[Category:Offences with Maximum Penalty of 14 Years]]

Revision as of 14:28, 18 January 2019


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.
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
Template:PleadingsIndictableList
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)

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

Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release by
Peace Officer
on Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a Release Order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 268 Template:ReleaseProfileOnlyBail

Template:ReleaseOnlyBail

Reverse Onus Bail

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 weapon, being 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)).

And, regardless of Crown election, if the offence alleged was one:

  • where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
  • where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
  • where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
Fingeprints and Photos

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 criminal or regulatory prosecutions, 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
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 268 (Primary)

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 a Dangerous Offender Order. The offender will be deemed a "substantial risk" for 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 [common assault], 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.

[annotation(s) added]


CCC

Proof of the Offence

Proving aggravated assault under s. 268 should include:

  1. identity of accused as culprit
  2. date and time of the 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), per Romilly J, at para 8
    R v Godin, 1994 CanLII 97 (SCC), [1994] 2 SCR 484, 89 CCC (3d) 574, per Cory J
    R v Brodie (1995), 1995 CanLII 2601 (BC CA), 60 BCAC 153, per Taylor JA

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, per Cory J at p. 485
  2. R v Dewey, 1999 ABCA 5 (CanLII), per McClung JA, at para 9
  3. R v Littletent, 1985 ABCA 22 (CanLII), AJ No. 256, per Moir JA
  4. Littletent, ibid., at para 2
    R v Hilderman, 2005 ABQB 106 (CanLII), per Martin J at para 9, 19
  5. R v Reid, 2013 ABPC 228 (CanLII), per Semenuk J, at para 24
  6. R v Schultz, [1962] 133 CCC 174 (Alta. S.C. App. Div.), 1962 CanLII 553 (AB CA), per Smith CJ
  7. R v Innes and Brotchie, [1972] 7 CCC (2d) 544 (BCCA), 1972 CanLII 1255 (BC CA), per McFarlane JA
  8. R v De Freitas, 1999 CanLII 14071 (MB CA), per Twaddle JA 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, per Binnie J
    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), per curiam, 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), per Sopinka J
  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), per Steel JA

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 Violent and 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


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 include a range with the high end including an 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), per MacDonald CJ (3:0)
    R v Keshane, 2005 SKCA 18 (CanLII), [2005] S.J. No. 97, per Cameron JA (3:0)
  2. R v Perlin, [1977] NSJ No. 548 (*no CanLII links)
    R v Dzikowski, 1990 CanLII 2539 (NS CA), [1990] NSJ No. 353, per Matthews JA (3:0)
    R v King, [1999] NSJ No. 331, 1999 NSCA 103 (CanLII), per curiam (3:0)
  3. R v Craig, 2005 BCCA 484 (CanLII), per Kirkpatrick JA (3:0) at para 10
  4. R v Hamlyn, 2016 ABCA 127 (CanLII), per curiam (3:0) at para 21
  5. R v Derkson, 2009 YKSC 66 (CanLII), per Richard J

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] OJ No 1540(*no CanLII links)
    R v Peters, 2010 ONCA 30 (CanLII), per Blair JA (3:0) -- court suggesting suspended sentence being available
  2. R v Craig, 2005 BCCA 484 (CanLII), 201 CCC (3d) 495, per Kirkpatrick JA (3:0)
    R v Johnson, 1998 CanLII 4838 (BC CA), (1998), 131 CCC (3d) 274 (B.C.C.A), per Prowse JA (3:0)
  3. R v Willier, 2005 BCCA 404 (CanLII), per Smith JA (3:0)
  4. R v Biln, 1999 BCCA 369 (CanLII), per McEachern JA (3:0)
  5. R v Wheeler, [2011] N.J. No. 391, 2011 CanLII 69366 (NL PC), per Gorman J, at para 72
  6. R v Tourville, 2011 ONSC 1677 (CanLII), per Code J
    R v Brethour, 2013 ONSC 1167 (CanLII), per Beaudoin J at para 17-19
  7. Brethour, ibid. at para 17-19
  8. 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 the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
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. NB: does not apply to summary offences.

Record Suspensions and Pardons

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