Assault with a weapon Lawyers in Canada

The Crown is the prosecutor. A person charged with an offence is presumed innocent until proven guilty, so the Crown is the side that has to prove the charge. That presumption is part of section 11(d) of the Canadian Charter of Rights and Freedoms.

The charge starts with an assault. Under section 265, a person commits an assault when, without the consent of another person, they apply force intentionally to that other person, directly or indirectly. The section also covers an attempt or a threat, by an act or a gesture, to apply force to another person, if the person has present ability to carry out their purpose or causes the other person to believe on reasonable grounds that they have it.

Section 267 then adds the weapon. It applies to a person who, in committing an assault, carries, uses or threatens to use a weapon or an imitation of one. The same section has two other paragraphs, which cover causing bodily harm to the complainant and choking, suffocating or strangling the complainant. The weapon paragraph is its own way of committing the offence, so the Crown has to prove the assault and the weapon.

Section 2 of the Criminal Code defines a weapon as any thing used, designed to be used or intended for use in causing death or injury to any person, or for the purpose of threatening or intimidating any person. The definition names a firearm as one example. It does not list everyday objects, and it turns on how a thing was used, designed or intended. Whether a particular thing was a weapon, as defined, is a question for the evidence.

Section 267 makes the offence an indictable offence liable to imprisonment for a term of not more than 10 years, or an offence punishable on summary conviction. The section sets a maximum and no minimum term.

For a summary conviction offence, section 787(1) sets the penalty where the law does not provide otherwise: a fine of not more than $5,000, or imprisonment of not more than two years less a day, or both.

A maximum is the ceiling the law allows. It does not say what sentence a court would give in any case, and this page does not predict one.

A conviction can also bring a weapons prohibition. Section 109 applies to a person convicted of an indictable offence in the commission of which violence against a person was used, threatened or attempted, and for which the person may be sentenced to imprisonment for ten years or more. Where it applies, the court shall make an order prohibiting the person from possessing firearms and the other things the section lists.

Section 110 covers other offences in which violence against a person was used, threatened or attempted. There, the court considers whether it is desirable, in the interests of the safety of the person or of any other person, to make a prohibition order, and if it decides that it is, it shall make one. Which of these sections applies depends on how the charge proceeds, and a lawyer can explain that.

Self-defence is in section 34. Under section 34(1), the defence applies where a person believes on reasonable grounds that force is being used against them or another person, or that a threat of force is being made. The act must be committed for the purpose of defending or protecting themselves or the other person, and it must be reasonable in the circumstances.

Section 34(2) lists factors the court shall consider in deciding whether the act was reasonable. They include the nature of the force or threat, the person's role in the incident, whether any party to the incident used or threatened to use a weapon, and the nature and proportionality of the person's response. Whether self-defence applies in a particular case is a question for the court.

Other questions can arise from the elements above. A charge may turn on whether an assault happened at all, on whether the thing was a weapon as the Code defines it, or on who was involved. Each is a matter for the evidence at trial.

Charter rights apply from the start. Section 10 gives everyone on arrest or detention the right to be informed promptly of the reasons, and the right to retain and instruct counsel without delay and to be informed of that right. Section 8 protects the right to be secure against unreasonable search or seizure, which can matter when something was searched for or taken as an alleged weapon.

Section 24(1) lets anyone whose Charter rights were infringed apply to a court for a remedy. Under section 24(2), evidence obtained in a manner that infringed Charter rights is excluded if admitting it would bring the administration of justice into disrepute.

In Ontario, every charge under the Criminal Code starts in the Ontario Court of Justice, and about 95% of charges are completed there. The Superior Court of Justice can try any indictable offence but generally tries only the most serious ones.

A person who is arrested may be taken before a justice for a release decision. Under section 515, the justice shall make a release order without conditions unless the prosecutor shows cause why detention in custody is justified or why another order under that section should be made. Section 493.1 says that the person making the decision gives primary consideration to release at the earliest reasonable opportunity and on the least onerous conditions that are appropriate.

After a conviction on indictment, an appeal goes to the court of appeal. A person may appeal as of right on a question of law alone. An appeal on a question of fact, or of mixed law and fact, needs leave. So does an appeal against sentence. An appeal from a summary conviction goes, in Ontario, to the Superior Court of Justice in the region, district or county where the case was decided.

Legal Aid Ontario may pay for a lawyer if the person qualifies and is charged with a crime that could mean jail on conviction, or is 12 to 17 and charged under the Youth Criminal Justice Act. Duty counsel is a lawyer at the courthouse for that day. Duty counsel can advise on rights, ask to delay a court date, act at a bail hearing, help with a guilty plea, speak at sentencing, and meet the Crown, for people who qualify and have no lawyer.

A legal aid certificate pays a roster lawyer, one approved to take legal aid clients, for the length of the criminal case. Applications are online or by phone at 1-800-668-8258.

The Law Society of Ontario keeps a public Lawyer and Paralegal Directory, where a lawyer's licence can be looked up. The Ontario lawyers on this site are listed by city. Nothing on this page ranks or recommends any of them.