Understanding Assault with a Weapon

A guide to legal provisions, what the Crown must prove, and sentencing.

Criminal Code Provision

Section 267(2) Every one is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months, who, in committing an assault, carries, uses or threatens to use a weapon or an imitation thereof.

Section 265(2) of the Criminal Code defines assault; this definition applies to every type of assault.

Understanding Assault with a Weapon

This crime is considered more severe than simple assault as it entails the use, display, or intimidation involving a weapon. A weapon is defined in broad terms and may include:

• Firearms and knives.
• Blunt objects such as bats, bottles, or tools.
• Everyday items, if used to intimidate or injure (e.g., a belt, a shoe, or even a car).
• Imitation weapons (such as a toy gun) if the complainant reasonably believes it to be authentic.

What the Crown Must Prove

The prosecution needs to demonstrate that:

1. The accused perpetrated an attack (deliberate force or force without consent).
2. An imitation weapon was carried, used, or threatened during the assault.

The weapon doesn’t have to inflict real harm — merely showing it or threatening to utilize it suffices.

Consent and Defences

• Consent may be relevant in certain situations, but it does not justify attacks that lead to serious harm.
• Self-defence is an acknowledged justification if the level of force applied was appropriate given the situation.
• If the injury was unintended, then one can raise the defence of an accident or lack of intent.
• Charter challenges can dismiss evidence obtained unlawfully by the police.

Sentencing for Assault with a Weapon

Assault with a weapon is a hybrid offence, which allows the Crown to either proceed summarily or by way of indictment.

1. Summary Conviction: When prosecuted summarily, the highest penalty can be 18 months of imprisonment. For less severe cases, alternatives such as probation, fines, or conditional sentences may be applied.
2. Indictable Offence: If the Crown proceeds with an indictment, the highest penalty rises to 10 years of imprisonment.
3. Factors Courts Consider: When determining a sentence, the factors the court will consider are the type of weapon used (firearm vs. everyday object), whether the weapon was actually used or just displayed, the degree of injury and fear caused, the context (domestic violence, robbery), and the offender’s prior criminal record.

Leading Case for Assault with a Weapon

In the case of R. v. Kerr, [2004] O.J. No.4116, the Ontario Court of Appeal confirmed that merely threatening with a weapon, even without physical harm, is sufficient for a conviction under s.267(a). A weapon does not need to be used to cause actual injury; carrying or threatening with it during an assault is enough.