What is assault with a weapon?


The charge of assault with a weapon is more complicated than it seems. Section 267 of the Criminal Code notes that the charge of “assault with a weapon or causing bodily harm” can be laid under three circumstances:

  • you used or threatened to use a weapon, or an imitation;
  • you caused bodily harm to the complainant; or
  • you choked, suffocated or strangled the complainant.

This charge can be laid even if there is no physical contact. Waving a knife around or displaying a firearm in an intimidating manner is enough for police to lay a charge.

What is a weapon?

While guns and knives may be the most common types of weapons used the list certainly does not stop there. Any objects that can be thrown or used in a threatening manner – stones, household items, hot coffee, even small animals – could be considered to be a weapon. Here are two examples from court cases in Alberta.

In 2008, a 14-year-old girl admitted to her parents she was sexually active with her boyfriend. According to court documents, the father took her to her room and held her down so that the mother could hit her with a belt. Both parents were convicted of assault by a trial judge, but that charge was upgraded to assault with a weapon on appeal to the Court of Queen’s Bench. That judge noted, “the rule is that you cannot discipline a teenager or a child with a – and I do not like the word weapon, but with an object.”

In 2003 a 14-year-old Alberta boy pleaded guilty to assault with a weapon at Provincial Court after he threw a cordless telephone at his 12-year-old sister during an argument.

Can a hockey stick be a weapon?

Something as Canadian as a hockey stick can be considered a weapon if it is used to hurt or intimidate others. In 2000, a NHL defenceman – who earlier in his career played with the Edmonton Oilers – was found guilty of assault with a weapon after he slashed another player in the head with a stick.

The judgment notes “to engage in a game of hockey is not to enter a forum to which the criminal law does not extend. To hold otherwise would be to create the hockey arena a sanctuary for unbridled violence to which the law of Parliament and the Queen's justice could not apply … a hockey stick is not designed as a weapon, but is often used as such to slash and cross-check other players … every time a player uses a stick to apply force to another player, the stick is being used as a weapon.”

What are my defences against this charge?

It all depends on the circumstances that led to the charge. Section 34 (1) of the Code describes three scenarios where you should not be found guilty of any assault charge. They are:

  • if you believe on “reasonable grounds” that force, or a threat of force, is being used against you or another person;
  • your actions in response to that threat were done for the purpose of defending yourself or others; and
  • the act committed is reasonable in the circumstances.

As your lawyer, I will look at the evidence and show the court why you had reasonable grounds to believe that they were being assaulted, or at least threatened, and your actions were justified.

In considering whether your actions were reasonable, a judge will look at the non-exhaustive list of factors found in section 34(2) of the Code. These include:

  • the nature of the force or threat;
  • was the use of force imminent;
  • your role in the incident;
  • the size, age and gender of the parties involved; and
  • your relationship to the complainant.

With any case I am involved with, I always look for inconsistencies in the Crown’s case and in the evidence given to police by the victim. Any gaps or contradictions I uncover will diminish the credibility of the complainant’s testimony.

What penalty will I face if convicted?

A conviction on an assault with a weapon charge will bring harsher penalties than with basic assault, which is why you need an experienced defence lawyer at your side. Assault with a weapon is a hybrid offence, meaning that the prosecutor can choose, based on factors such as the seriousness of your actions and the harm caused, to prosecute it as either a summary conviction or as an indictable offence.

Indictable offences are more serious, with a 10-year prison term as the maximum penalty versus 18 months in jail for summary convictions. In either case you may have to give a DNA sample to the national DNA databank and the judge can impose a lifetime ban on owning any weapons.

Why do you need me as your lawyer?

A conviction for assault with a weapon will affect your employment prospects and your ability to cross international borders, not to mention the damage it will do to your reputation and family connections. If you are facing this charge, put my experience to work for you. The testimonials I have received from clients show their gratitude for my representation. Contact me for a free consultation.