Weapons Trafficking (Offence) and Aggravated Assault (Offence): Difference between pages
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{{OffenceBox |OffenceTitle= | {{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}} }} | ||
{{ | |||
|IndictableMax= {{OBTime| | |||
==Overview== | ==Overview== | ||
{{ | {{OverviewVIII|aggravated assault}} | ||
; Pleadings | |||
{{PleadingsHeader}} | {{PleadingsHeader}} | ||
{{PleadingsIndictableList|s. | {{PleadingsIndictableList|s. 268 [aggravated assault] | {{NA}} | Yes}} | ||
{{PleadingsEnd}} | {{PleadingsEnd}} | ||
{{PleadingsIndictElection|s. | {{PleadingsIndictElection|s. 268}} | ||
{{Section109Notice}} | {{Section109Notice}} | ||
; Release | |||
{{ReleaseHeader}} | {{ReleaseHeader}} | ||
|s. | |s. 268 || {{ReleaseProfileOnlyBail}} | ||
|- | |- | ||
{{ReleaseEnd}} | {{ReleaseEnd}} | ||
{{ | {{ReleaseOnlyBail|s. 268}} | ||
:''Reverse Onus Bail'' | :''Reverse Onus Bail'' | ||
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:''Fingeprints and Photos'' | :''Fingeprints and Photos'' | ||
{{IDCriminalAct|s. | {{IDCriminalAct|s. 268}} | ||
; Publication Bans | |||
{{GeneralPubBan}} | {{GeneralPubBan}} | ||
; Offence Designations | ; Offence Designations | ||
{{DesignationHeader}} | {{DesignationHeader}} | ||
|s. 268 || {{OKMark}} <!--wire--> || {{OKMark}} (''Primary'')<!--DO-->||{{OKMark}} <!--SPIO--> || {{XMark}} <!--consent--> | |||
|s. | |||
{{DesignationEnd}} | {{DesignationEnd}} | ||
{{ | {{WiretapDesignation|s. 268}} | ||
{{DOPrimaryDesignation|s. 268}} | |||
{{ | {{SPIODesignation|A|s. 268}} | ||
{{SeeBelowForAncillary}} | |||
}} | |||
==Offence Wording== | |||
{{quotation| | {{quotation| | ||
''' | '''Aggravated assault'''<br> | ||
268. (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. | |||
<br> | <br> | ||
; Punishment | |||
(2) Every | (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> | <br> | ||
; 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.<br> | |||
; Consent | |||
''' | (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). | ||
<br> | <br> | ||
R.S., 1985, c. C-46, s. | R.S., 1985, c. C-46, s. 268; 1997, c. 16, s. 5.<br>{{Annotations}} | ||
|[http://canlii.ca/t/7vf2#sec268 CCC] | |||
}} | |||
|[http://canlii.ca/t/7vf2# | |||
}} | }} | ||
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{{ElementLeft}} | {{ElementLeft}} | ||
{{Proving| | {{Proving|aggravated assault|268}} | ||
{{InitialElements}} | {{InitialElements}} | ||
# {{box}} the | # {{box}} that an assault occurred (e.g. intentional application of force with no consent) | ||
# | # the injuries sustained | ||
# | # the injuries amounted to the victim being: | ||
## {{box}} wounded, | |||
## {{box}} maimed, | |||
## {{box}} disfigured, or | |||
## {{box}} had life endangered | |||
# that there was no provocation | |||
{{ | {{ElementEnd}} | ||
{{ | ==Interpretation of the Offence== | ||
{{ | The elements of aggravated assault are the same as those of common assault (s. 266) with the addition of:<ref> | ||
''R v McConnell'', [http://canlii.ca/t/g722v 2014 BCSC 973] (CanLII){{perBCSC|Romilly J}}{{at|8}}<br> | |||
# the | ''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 | ''R v Brodie'' (1995), [http://canlii.ca/t/1ddb9 1995 CanLII 2601] (BC CA), 60 BCAC 153{{perBCCA|Taylor JA}}<br> | ||
# the | </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 | |||
{{ | {{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> | |||
{{ | '''"wound, maim or disfigure"'''<br> | ||
{{ | "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> | ||
{{ibid1|Littletent}}{{at|2}}<br> | |||
''R v Hilderman'', [http://canlii.ca/t/1jxhm 2005 ABQB 106] (CanLII){{perABQB|Martin J}} at para 9, 19<br> | |||
</ref> | |||
It generally refers to permanent damage.<ref> | |||
{{ | ''R v Reid'', [http://canlii.ca/t/gk9z6 2013 ABPC 228] (CanLII){{perABPC|Semenuk J}}{{at|24}}<br> | ||
</ref> | |||
{{ | |||
{{ | |||
{{ | "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. | |||
"Disfigure" refers to injuries that amount to "more than a temporary marring of the figure or appearance".<ref> | |||
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> | |||
{{ | ; 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> | |||
{{ | {{reflist|2}} | ||
== | ===Mens Rea=== | ||
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> | |||
''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> | ||
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> | |||
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> | |||
''R v DeSousa'', [1992] 2 SCR 944, [http://canlii.ca/t/1fsb0 1992 CanLII 80] (SCC){{perSCC|Sopinka J}} | |||
<ref> | |||
''R v | |||
</ref> | </ref> | ||
'' | 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> | ||
{{supra1|Nanemahoo}}{{at|23}}<br> | |||
</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 | |||
{{3rdPTestimonyAids}} | {{3rdPTestimonyAids}} | ||
'''On Finding of Guilt'''<br> | '''On Finding of Guilt'''<br> | ||
{{606NoticeSPIO|s. | |||
{{606NoticeSPIO|s. 268}} | |||
{{RestitutionNotice}} | {{RestitutionNotice}} | ||
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==Sentencing Principles and Ranges== | ==Sentencing Principles and Ranges== | ||
{{seealsoSentencing}} | {{seealsoSentencing}} | ||
:''For details on general principles and factors of assault-based offences, see [[Violent and Assaultive Offences (Sentencing)]]'' | |||
; Maximum Penalties | |||
{{SProfileMaxHeader}} | {{SProfileMaxHeader}} | ||
{{SProfileMax|s. | {{SProfileMax|s. 268 [aggravated assault] | {{NA}} | 14 years custody }} | ||
{{SProfileEnd}} | {{SProfileEnd}} | ||
{{MaxPenaltyIndictment|s. | {{MaxPenaltyIndictment|s. 268 [aggravated assault]|'''14 years incarceration'''}} | ||
; Minimum Penalties | |||
{{NoMinimumPenalties}} | |||
; Available Dispositions | |||
{{SProfileAvailHeader}} | |||
|s. 268 || {{NA}} || {{SProfileNoDischargeOrCSO}} | |||
{{ | {{SProfileEnd}} | ||
{{NoDischargeAvailable|s. 268}} | |||
{{NoCSOAvailable|C|s. 268}} | |||
; Consecutive Sentences | |||
{{NoConsecutive}} | |||
''' | === Principles === | ||
{{ | Aggravated assault is the most serious of violent crimes short of homicide and so must include incarceration.<ref> | ||
''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) | |||
</ref> General deterrence is the primary factor.<ref> | |||
''R v Perlin'', [1977] NSJ No. 548 {{NOCANLII}}<br> | |||
''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> | |||
{{ | |||
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> | |||
{{ | {{Reflist|2}} | ||
=== 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> | |||
''' | In Newfoundland, it is suggested that aggravated assault where a knife is involved is in the range of 3 to 6 years. | ||
{{ | <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> | ||
; 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> | |||
The upper range of 6 years are reserved for those offenders with a prior criminal record who commits an "unprovoked" and "premeditated" assaults.<ref> | |||
{{ | {{supra1|Tourville}}{{at|30}}<br> | ||
</ref> | |||
{{reflist|2}} | |||
==Ancillary Sentencing Orders== | ==Ancillary Sentencing Orders== | ||
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'''Offence-specific Orders''' | '''Offence-specific Orders''' | ||
{{AOrderHeader}} | {{AOrderHeader}} | ||
| [[DNA Orders]] ||s. 268 || | |||
** {{PrimDNA1|s. 268}} | |||
* {{ | |- | ||
| [[Weapons Prohibition Orders]] ||s. 268|| | |||
* {{Section109|A|s. 268}} | |||
* {{Section109|D|s. 268 [if weapon etc. involved]}} | |||
* {{Section109| | |- | ||
* {{Section109| | | [[Delayed Parole Eligibility|Delayed Parole Order]]||s. 268|| | ||
* {{ParoleDelayEligible|1|s. 268}} | |||
* {{ | |||
{{AOrderEnd}} | {{AOrderEnd}} | ||
'''General Sentencing Orders''' | '''General Sentencing Orders''' | ||
{{GeneralSentencingOrders}} | {{GeneralSentencingOrders}} | ||
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{{GeneralForfeitureOrders}} | {{GeneralForfeitureOrders}} | ||
==Record Suspensions and Pardons== | |||
==History== | ==History== | ||
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== | ||
; References | |||
* [[Pre-Trial and Trial Motions Checklist]] | * [[Pre-Trial and Trial Motions Checklist]] | ||
{{OffencesNavBar/Violence}} | |||
[[Category:Offences with Maximum Penalty of | |||
[[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 (*) |
Indictable Dispositions | |
Avail. Disp. | Suspended Sentence (731(1)(a)) |
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) |
---|
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 |
- 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:
|
Interpretation of the Offence
The elements of aggravated assault are the same as those of common assault (s. 266) with the addition of:[1]
- 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
- ↑
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]
- ↑ R v Godin, 1994 CanLII 97 (SCC), [1994] 2 SCR 484, 89 CCC (3d) 574, per Cory J at p. 485
- ↑
R v Dewey, 1999 ABCA 5 (CanLII), per McClung JA, at para 9
- ↑ R v Littletent, 1985 ABCA 22 (CanLII), AJ No. 256, per Moir JA
- ↑
Littletent, ibid., at para 2
R v Hilderman, 2005 ABQB 106 (CanLII), per Martin J at para 9, 19
- ↑
R v Reid, 2013 ABPC 228 (CanLII), per Semenuk J, at para 24
- ↑ R v Schultz, [1962] 133 CCC 174 (Alta. S.C. App. Div.), 1962 CanLII 553 (AB CA), per Smith CJ
- ↑ R v Innes and Brotchie, [1972] 7 CCC (2d) 544 (BCCA), 1972 CanLII 1255 (BC CA), per McFarlane JA
- ↑ 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]
- ↑
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")
- ↑
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")
- ↑ R v DeSousa, [1992] 2 SCR 944, 1992 CanLII 80 (SCC), per Sopinka J
- ↑
Nanemahoo, supra, at para 23
Discharging a Firearm
Where the aggravated assault arises from the discharge of a firearm, the crown must prove:[1]
- 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.
- ↑ 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
- 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
- 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]
- ↑
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) - ↑
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) - ↑ R v Craig, 2005 BCCA 484 (CanLII), per Kirkpatrick JA (3:0) at para 10
- ↑
R v Hamlyn, 2016 ABCA 127 (CanLII), per curiam (3:0) at para 21
- ↑ 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]
- ↑
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
- ↑
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)
- ↑ R v Willier, 2005 BCCA 404 (CanLII), per Smith JA (3:0)
- ↑ R v Biln, 1999 BCCA 369 (CanLII), per McEachern JA (3:0)
- ↑ R v Wheeler, [2011] N.J. No. 391, 2011 CanLII 69366 (NL PC), per Gorman J, at para 72
- ↑ R v Tourville, 2011 ONSC 1677 (CanLII), per Code J
R v Brethour, 2013 ONSC 1167 (CanLII), per Beaudoin J at para 17-19 - ↑ Brethour, ibid. at para 17-19
- ↑
Tourville, supra, at para 30
Ancillary Sentencing Orders
Offence-specific Orders
Order | Conviction | Description |
---|---|---|
DNA Orders | s. 268 |
|
Weapons Prohibition Orders | s. 268 |
|
Delayed Parole Order | s. 268 |
|
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
|
- Criminal Law
- Sentencing
- Offences
- Wiretap Eligible Offences
- Serious Personal Injury Offences
- Notice of Settlement to Victim
- Offences Requiring Notice to Victim
- Straight Indictable Offences
- Offences with No Mandatory Minimum
- Primary Designated Offences for DNA Orders
- Section 109 or 110 Prohibition Offences
- Delayed Parole
- Violence Offences
- Offences with Maximum Penalty of 14 Years