Assault with a Weapon or Causing Bodily Harm (Offence)

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Assault with a Weapon or Causing Bodily Harm
s. 267 of the Crim. Code
Election / Plea
Crown Election	Hybrid summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction	Prov. Court Sup. Court w/ Jury (*) Sup. Court w/ Judge-alone (*) * Must be indictable.
Summary Dispositions
Avail. Disp.	Discharge (730) Suspended Sentence (731(1)(a)) Fine (734) Fine + Probation (731(1)(b)) Jail (718.3, 787) Jail + Probation (731(1)(b)) Jail + Fine (734) Conditional Sentence (742.1)
Minimum	None
Maximum	18 months incarceration
Indictable Dispositions
Avail. Disp.	Discharge (730) Suspended Sentence (731(1)(a)) Fine (734) Fine + Probation (731(1)(b)) Jail (718.3, 787) Jail + Probation (731(1)(b)) Jail + Fine (734) Conditional Sentence (742.1)
Minimum	None
Maximum	10 years incarceration
Reference
Offence Elements Sentence Digests

Overview

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

Pleadings

Offence Section	Offence Type	Crown Election	Defence Election s. 536(2)	Preliminary Inquiry
s. 267(a) [assault with a weapon] and s. 267(b) [assault causing bodily harm]	Hybrid Offence(s)		(* only if Crown proceeds by Indictment)	(under 14 years max)
s. 267(a) [assault with a weapon] and s. 267(b) [assault causing bodily harm] If related to IPV and with previous conviction for IPV (s. 718.3(8))	Hybrid Offence(s)		(* only if Crown proceeds by Indictment)	(14 years max)

Offences under s. 267 [assault with a weapon or causing bodily harm] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury. Offences under s. 267 [assault with a weapon or causing bodily harm] (assuming IPV offence with prior, see 718.3(8)) are hybrid with a Crown election. If prosecuted by indictment, 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).

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. 267 [assault with a weapon or causing bodily harm]

When charged under s. 267 [assault with a weapon or causing bodily harm] , the accused can be given an appearance notice without arrest under s. 497 or a summons. 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 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));

Fingerprints and Photos

A peace officer who charges a person under s. 267 [assault with a weapon or causing bodily harm] 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. 267 [assault with a weapon or causing bodily harm]		(primary)

Offences under s. 267 [assault with a weapon or causing bodily harm] are designated offences eligible for wiretap under s. 183.

Section s. 267 [assault with a weapon or causing bodily harm] 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. 267 [assault with a weapon or causing bodily harm] are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".

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

Offence Wording

Assault with a weapon or causing bodily harm

267 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on summary conviction who, in committing an assault,

(a) carries, uses or threatens to use a weapon or an imitation thereof,

(b) causes bodily harm to the complainant, or

(c) chokes, suffocates or strangles the complainant.

R.S., 1985, c. C-46, s. 267; 1994, c. 44, s. 17; 2019, c. 25, s. 93.

– CCC

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Draft Form of Charges

		Pre-ambles
		"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
267(a)	assault with a weapon	"... did in committing an assault upon [name of alleged victim] [carry, use or threaten to use] a weapon or imitation weapon, to wit: [name of weapon] contrary to section 267(a) of the Criminal Code."
267(b)	assault causing bodily harm	"... did in committing an assault upon [name of alleged victim] caused bodily harm to him contrary to section 267(b) of the Criminal Code."
267(c)	assault with a weapon	"... did in committing an assault upon [name of alleged victim] did [choke, suffocate or strangle] him contrary to section 267(c) of the Criminal Code."

Proof of the Offence

Proving assault with a weapon under s. 267(a) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit assaulted the victim the culprit committed the assault either: ☐ while carrying a weapon; ☐ "use of a weapon" or ☐ threaten to use a weapon.

Proving assault causing bodily harm under s. 267(b) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit assaulted the victim ☐ "bodily harm" was inflicted on the victim; ☐ the assault caused the bodily harm seriousness of injuries: ☐ a hurt or injury interfered with the victim's health or comfort and whether it was "more than merely transient or trifling in nature" ☐ treatment / duration of injuries

Interpretation of the Offence

Actus Reus

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

Threatens

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

Mens Rea

An intention to throw an object without an intention to throw the object at someone, is not sufficient mens rea. By contrast where there is objectively foreseeability of harm of the act, there may be liability. Where the accused throws something carelessly it will usually not be sufficient intent for the mens rea.

However, recklessness in the act is sufficient to convict.

The doctrine of transferred intent allows the intent to assault one person to satisfy the mens rea for an assault against another person where that second person was not the target. The result is that the intention of a failed assault will transfer to the successful assault of another person.

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

Intent

Assault causing bodily harm is a general intent offence.

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

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

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

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

Causing

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

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

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

Consent

One cannot consent to being stabbed.

Cross-Referenced Terms

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

Kienapple

Many cases state that an accused cannot be convicted of Assault with a Weapon and Assault Causing Bodily Harm where they arise out of the same circumstances. The same goes for the offence of assault with a weapon and aggravated assault.

Where the evidence is substantially the same for proving the elements of possession for a dangerous purpose and assault with a weapon, convictions on both are precluded.

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

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

Many cases state that an accused cannot be convicted of assault with a weapon and assault causing bodily harm where they arise out of the same circumstances.

Considered Defences

• Consensual fight
• Self-Defence
• Defence of Another
• Defence of Property
• Accident and Mistake
• De Minimus
• Reflex

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

Participation of Third Parties

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

Offence(s)	Victim Notice of Agreement s. 606(4.1) [SPIO]	Victim Queried for Interest in Agreement s. 606(4.2) [5+ years]	Victim Notice for Restitution s. 737.1	Victim Notice of Impact Statement s. 722(2)
s. 267 [assault with a weapon or causing bodily harm]

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

Maximum Penalties

Offence(s)	Crown Election	Maximum Penalty
s. 267(a) [assault with a weapon] or s. 267(b) [assault causing bodily harm]	summary election	18 months incarceration
s. 267(a) [assault with a weapon] or s. 267(b) [assault causing bodily harm]	indictable election	10 years incarceration
s. 267(a) [assault with a weapon] or s. 267(b) [assault causing bodily harm] If related to IPV and with previous conviction for IPV (s. 718.3(8))	indictable election	14 years incarceration

Offences under s. 267 [assault with a weapon or causing bodily harm] are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is 18 months incarceration. Where the offender is convicted for a second-time for intimate partner violence (IPV) and the election is to proceed by indictment, then 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. 267 [assault with a weapon or causing bodily harm]	any

Offences under s. 267 [assault with a weapon or causing bodily harm] are ineligible for a conditional sentence order under s. 742.1(c), when prosecuted by indictment, as the maximum period of incarceration is 14 years or life.

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

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

Ranges

see also: Common Assault (Sentencing Cases)

Ancillary Sentencing Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 267 [assault with a weapon or causing bodily harm]	For convictions under s. 267, as listed under s. 487.04(a), a DNA Order is mandatory as a primary designated offence under s. 487.051(1) regardless of Crown election.
Weapons Prohibition Orders	s. 267 [assault with a weapon or causing bodily harm]	On conviction under s. 267(b) [assault causing bodily harm] where "violence against a person was used, threatened or attempted", and was prosecuted by indictment, punishable by "imprisonment for ten years or more", the weapons prohibition order is mandatory under s. 109(1)(a). For offences under s. 267(a) [assault with a weapon] where "the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance and, at the time of the offence, the person was prohibited" by court order, a mandatory weapons prohibition order under s. 109(1)(d) is required regardless of election.The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive". Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life. Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required. Where there is a conviction under s. 267 [summary conviction] for an offence not otherwise referred to in s. 109, where "violence against a person was used, threatened or attempted" or "involves, or the subject-matter of which is a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance", a discretionary prohibition order of any of these items is permitted under s. 110 regardless of Crown election where "it is desirable, in the interests of the safety of the person or of any other person". Duration: The Order is for no more than 10 years starting at release from custody or at sentencing where custody is not ordered. If there is a prior conviction for an offence eligible for a s. 109 Order, the duration must be life. If violence is "used, threatened or attempted against" their past or present intimate partner, a child or parent of the said partner, or a person who resides with the said partner or the offender, the duration can be up to life in duration. If the judge declines to make an Order or not order all the possible terms, "the court shall include in the record a statement of the court's reasons for not doing so." (s. 110(3))
Delayed Parole Order	s. 267 [assault with a weapon or causing bodily harm]	Periods of imprisonment of 2 years or more for convictions under s. 267 [assault with a weapon or causing bodily harm] 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

Convictions under s. 267 [assault with a weapon or causing bodily harm] 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".

History

Section 267 was amended in 199, c. 44, s. 17, increasing the maximum summary penalty to 18 months and the maximum indictable penalty to 10 years.

Enactment 1980-81-82-83, c. 125, s. 19 replaced s. 245 with the following:

Assault with a weapon or causing bodily harm

245.1 (1) Every one who, in committing an assault,

(a) carries, uses or threatens to use a weapon or an imitation thereof, or

(b) causes bodily harm to the complainant, is guilty of an indictable offence and is liable to imprisonment for ten years.

Definition of “bodily harm”

(2) For the purposes of this section and sections 245.3 and 246.2, “bodily harm” means any hurt or injury to the complainant that interferes with his or her health or comfort and that is more than merely transient or trifling in nature.

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Section 231 was renumbered to s. 245.

Criminal Code, 1953-54, c. 51 joined common assault with assault causing bodily harm:

231 Every one who commits a common assault is guilty of

(a) an indictable offence and is liable to imprisonment for two years, or

(b) an offence punishable on summary conviction.

Causing bodily harm by assault or otherwise

(2) Every one who unlawfully causes bodily harm to any person or commits an assault that causes bodily harm to any person is guilty of an indictable offence and is liable to imprisonment for two years.

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The Criminal Code 1892, c. 29:

Wounding

242 Every one is guilty of an indictable offence and liable to three years' imprisonment who lawfully wounds or inflicts any grievous bodily harm upon any other person, either with or without any weapon or instrument.

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Assaults causing actual bodily harm

262 Every one who commits any assault which occasions actual bodily harm is guilty of art indictable offence and liable to three years' imprisonment.

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See Also

Related Offences

• Sexual Assault with a Weapon or Causing Bodily Harm (Offence)
• Aggravated Assault (Offence)

Motions

• Pre-Trial and Trial Motions Checklist