Aggravated Assault (Offence)
|s. 268 of the Crim. Code|
|Election / Plea|
Sup. Court w/ Jury (*)
|Maximum||14 years incarceration|
- 1 Overview
- 2 Offence Wording
- 3 Proof of the Offence
- 4 Interpretation of the Offence
- 5 Common Defences
- 6 Participation of Third Parties
- 7 Sentencing Principles and Ranges
- 8 Ancillary Sentencing Orders
- 9 Record Suspensions and Pardons
- 10 History
- 11 See Also
Offences relating to aggravated assault are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".
|Crown Election||Defence Election
|s. 268 [aggravated assault]||Indictable Offence(s)||(14 years max)|
|s. 268 [aggravated assault]
If related to IPV and
with previous conviction for IPV
|Indictable Offence(s)||(life max)|
Offences under s. 268 [aggravated assault] are straight indictable. There is a Defence election of Court under s. 536(2) to trial to trial in provincial court, superior court with a judge-alone (with or without a preliminary inquiry) or superior court with judge-and-jury (with or without a preliminary inquiry).
by Peace Officer
by Judge or Justice
s. 508(1), 512(1), or 788
s. 498, 499, and 501
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 [aggravated assault]|
When charged under s. 268 [aggravated assault], the accused can be given a judicial summons without arrest. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.
- 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 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)).
- Fingerprints and Photos
A peace officer who charges a person under s. 268 [aggravated assault] 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
|AG Consent Required||Serious Criminality|
s. 36 IRPA
|s. 268 [aggravated assault]||(Primary)||(enumerated in s. 752 definition (b))|
Offences under s. 268[aggravated assault] are designated offences eligible for wiretap under s. 183.
Section s. 268 [aggravated assault] 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 [aggravated assault] 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.
Draft Form of Charges
|"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"AND FURTHER at the same time and place aforesaid, he [or she]..."|
|Code Section||Subject of Offence||Draft Wording|
|268||aggravated assault||"... did [wound, maim, disfigure or endanger the life of] [name or initialism of victim] thereby committing an aggravated assault contrary to section 268 of the Criminal Code."|
Proof of the Offence
Proving aggravated assault under s. 268 should include:
Draft Jury Decision Trees
Interpretation of the Offence
The elements of aggravated assault are the same as those of common assault (s. 266) with the addition of:
- 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
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". This same standard applies to assault causing bodily harm.
- "wound, maim or disfigure"
"Maiming" refers to "a hurt to the body that causes a person to be less able to fight". This includes breaking of bones.
"Disfigure" refers to injuries that amount to "more than a temporary marring of the figure or appearance".
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.
- R v Godin, 1994 CanLII 97 (SCC),  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 paras 9, 19
R v Reid, 2013 ABPC 228 (CanLII), per Semenuk J, at para 24
- R v Schultz,  133 CCC 174 (Alta. S.C. App. Div.), 1962 CanLII 553 (AB CA), per Smith CJ
- R v Innes and Brotchie,  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
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.
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".
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.
R v Williams, 2003 SCC 41 (CanLII),  2 SCR 134, per Binnie J
R v Godin, 1994 CanLII 97 (SCC),  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,  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:
- 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.
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
s. 606(4.1), (4.2)
|Victim Notice |
of Impact Statement
|s. 268 [aggravated assault]||(where SPIO, Crown must notify victims)|
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
|s. 268 [aggravated assault]||N/A||14 years incarceration|
|s. 268 [aggravated assault]
If related to IPV and
with previous conviction for IPV
Offences under s. 268 [aggravated assault] are straight indictable. The maximum penalty is 14 years incarceration. Where the offender is convicted for a second-time for intimate partner violence (IPV), then the maximum penalty is life.
- Minimum Penalties
These offences have no mandatory minimum penalties.
- Available Dispositions
s. 718.3, 787
|s. 268 [aggravated assault]||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 [aggravated assault] 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.
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.
It is only "in the rarest and most exceptional case will a suspended sentence be a demonstrably fit sentence for aggravated assault".
Those instances of offences that are unprovoked and premeditated, the emphasis should be on denunciation, which should exclude a community-based sentence.
R v Marsman, 2007 NSCA 65 (CanLII), per MacDonald CJ (3:0)
R v Keshane, 2005 SKCA 18 (CanLII),  S.J. No. 97, per Cameron JA (3:0)
R v Perlin,  NSJ No. 548 (*no CanLII links)
R v Dzikowski, 1990 CanLII 2539 (NS CA),  NSJ No. 353, per Matthews JA (3:0)
R v King,  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
- see also: Aggravated Assault (Sentencing Cases)
The range of appropriate sentence can be very broad, ranging from suspended sentence to mid-range penitentiary sentences.
- British Columbia
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” Further it has been stated as "18 months to six years" and "two years less a day to six years".
- Newfoundland and Labrador
In Newfoundland, it is suggested that aggravated assault where a knife is involved is in the range of 3 to 6 years. 
In Ontario, the ranges of sentence have been separated into three groups. 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.
The upper range of 6 years are reserved for those offenders with a prior criminal record who commits an "unprovoked" and "premeditated" assaults.
see comments in R v Comeau  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,  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 paras 17 to 19
- Brethour, ibid., at paras 17 to 19
Tourville, supra, at para 30
Ancillary Sentencing Orders
- Offence-specific Orders
|DNA Orders||s. 268 [aggravated assault]||
|Weapons Prohibition Orders||s. 268 [aggravated assault]||
|Delayed Parole Order||s. 268 [aggravated assault]||
- General Sentencing Orders
|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 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.|
Record Suspensions and Pardons
Convictions under s. 268 [aggravated assault] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".
Prior to the 1997 amendments to s. 268, it read:
The first instance of aggravated assault as a criminal offence was found in An Act to amend the Criminal Code, SC 1980-81-82-83, c. 125, s. 19. It created s. 245.2, which stated: