A charge of assault with a weapon is treated very seriously by the criminal courts in Ontario and the consequences are more severe than with common assault.

Because weapons can cause serious injury or death, the justice system clamps down hard on anyone accused of wrongdoing with a weapon, such as a firearm. The charge may be prosecuted as an indictable offence and result in serious jail time for a conviction.

To successfully defend a charge of assault with a weapon in Ottawa, you’ll likely need the assistance of an experienced criminal defence lawyer who understands the system here and has the legal defence skills to limit the consequences for your future.

Section 267 of the Criminal Code of Canada deals with the charge of assault with a weapon, which is considered a mid-range assault, i.e., more serious than common assault but a less serious offence than aggravated assault.

The Criminal Code states that anyone who carries, uses, or threatens to use a weapon or an imitation thereof, is found guilty.

According to the provisions of the Code, the prosecution needs to prove beyond a reasonable doubt the following to secure a conviction of assault with a weapon:

• The defendant intentionally applied force to a person without their consent, or
• The defendant attempted to apply force with an act or gesture that caused the person to believe that an assault would take place, or
• The defendant accosted or impeded another person while openly wearing a real or imitation weapon.

Additionally, the prosecution must prove that the defendant carried, used or threatened to use a real or imitation weapon.

What is considered a weapon in Ontario?

A weapon is defined in the Criminal Code as anything designed, intended or used to cause injury, death, intimidation or a threat.

This can include a wide variety of objects and even living beings (like a dog) if used in a certain way.

How is an assault with a weapon charge investigated in Ontario?

To begin the process of filing an assault with a weapon charge, a complaint is usually made to the police, often by the victim of the alleged assault or a relative of the victim.

The Toronto police will request a written statement from the complainant/witness and launch a thorough investigation into the matter, including interviewing anyone who witnessed the alleged assault, obtaining medical reports of the victim and reviewing video footage if available.

The police will seize the weapon and arrest the individual suspected of carrying out the assault — or issue a warrant for the individual’s arrest if that’s not possible.

A “disclosure package” of evidence will be provided to the Crown Prosecutor. This should be reviewed by an experienced criminal defence lawyer as soon as possible so that a credible defence of the charge(s) can begin.

Bail process/conditions for an assault with a weapon charge

Because assault with a weapon is a serious criminal charge, the police will generally not release the suspect and even a bail hearing may not result in a favorable outcome.

There is usually a period in custody of up to 24 hours, followed by a formal bail hearing at the courthouse, at which the terms of release (if appropriate) will be decided.

During this period, loved ones cannot contact the suspect and a lawyer is the only person able to learn his/her whereabouts and conduct communications. At this stage, an experienced criminal defence lawyer can begin the legal processes and start work on both securing bail and defending the charges.

Part of this process is discussing the charges with the prosecutor and negotiating for the suspect’s release. If a bail hearing is required, the judge will consider whether detention is necessary to secure the defendant’s attendance in court or to protect the public or the credibility of the criminal justice system.

Bail conditions in Ontario

If the suspect is released, restrictive conditions are likely to be ordered by a judge because of the grave nature of the alleged crime. These conditions may include refraining from:

• Interacting with the alleged victim
• Attending the alleged victim’s home or place of work
• Leaving home
• Staying out beyond a certain time
• Breaking any laws
• Using drugs or alcohol
• Possessing weapons or firearms
• Visiting certain places
• Travelling

As your criminal defence lawyer, we will work to secure your release with the least stringent conditions possible — either through negotiations with the prosecutor or at court in front of a judge.

If a defendant’s release is arranged, a cash deposit may be required to activate the agreement.

Penalties for an assault with a weapon charge in Ontario

An assault with a weapon charge is known as a “hybrid offence” and the decision of how to proceed with a prosecution depends on the circumstances of the case.

Anyone charged with assault with a weapon in Ontario can face an indictment with the potential for 10 years in prison. Less serious cases will be treated as summary offences but even these carry the potential for two years (less a day) of imprisonment.

Certain aggravating factors will increase the likelihood of jail time, including any offence that is:

• Committed in a domestic situation
• Committed while released on bail
• Committed in connection with a criminal organization
• Connected with the use of a prohibited firearm
• Committed by a non-resident of Canada

The resulting criminal record from a conviction can also create future problems with employment, housing, travel, child custody and immigration status.

Our seasoned defence lawyers will work hard to limit the consequences for you and your future.

What is the best defence to an assault with a weapon charge?

The burden of proof is high for the prosecution in an assault with a weapon case. Several possible defences to the charge include the following:

• Factual innocence: the facts and the evidence do not support the defendant causing the assault because of mistaken identity, no assault occurring or no weapon being used.
• Self-defence: the assault was committed to defend against an attacker (though to use this defence, the assault must be proportional to the threat).
• Defence of someone else: reasonable force was used to defend someone else against an attacker.
• Defence of property: Reasonable force was used to defend one’s property.
• Violation of Charter rights: the police failed to uphold the individual’s rights as outlined by the Canadian Charter of Rights and Freedoms.

An assault with a weapon charge can be successfully defended but often require serious representation to do so.

If you have been arrested and charged with this or any other criminal offence in the Ottawa area, contact an experienced criminal lawyer at Affordable Defence for a free case evaluation.