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Assault with a Weapon

The Charge

Under the s. 2 definition of the Criminal Code, a weapon is “anything used, designed to be used, or intended for use in causing death or injury, or for the purpose of threatening or intimidating any person.” Under s. 267, everyone who, in committing an assault, carries, uses or threatens to use a weapon (or imitation) is guilty of an indictable offence or a summary offence. The maximum sentences are, respectively, 10 years in jail or two years jail, less day. There is no mandatory minimum sentence for Assault with a Weapon. Non-custodial sentences are available.

To obtain a conviction for Assault with a Weapon, the Crown must first prove that there was an assault. This is to say that the Crown must prove that the accused applied force to the complainant without the complainant’s consent. Further, the Crown must prove that the accused was not acting in self-defence. In addition, the Crown must prove that the accused, in committing the assault, used a weapon. The Crown need not prove that any injury actually occurred.

It is a misconception that a “weapon” is limited to instruments such as firearms or knives. Objects such as chairs, rocks, potted plants, cars and even dogs have been held to be weapons.

The Investigation

Assault with a Weapon investigations unfold according to the nature of how and when the police receive the complaint. For example, police may be called to a bar or nightclub when a concerned patron or server sees a fight break out. Police will attend the scene and make an arrest. In other cases, it may take hours, days or weeks for police to be notified. In these situations, police will contact the suspect by attending at their house or workplace. They may contact the suspect by phone. As investigators, the police will want to hear the suspect’s side of the story. As experienced lawyers, this is where we can help our clients understand their right to silence as guaranteed by the Charter.

When we are contacted by a suspect prior to their arrest, we can be of significant assistance. We will contact police to determine who the investigating officer is. We will then contact this officer to determine the nature of the investigation. Because of the laws concerning solicitor/client privilege, we can act as a “buffer” between police and them. We are able to speak on your behalf without creating any evidence that could be used to incriminate you. We will strive to persuade police to not take you into custody at all or, alternatively, to release you as quickly as possible, with the least onerous conditions that are appropriate.

Recent Successes

R. vs. S.F. - Provincial Court of Newfoundland

Charge: Possession for the Purpose of Trafficking (Marijuana).
Issue: Whether it there was a substantial likelihood of obtaining a conviction.
Result: Upon considering Mr. Johnson's representations, Crown counsel concluded that there was no longer a likelihood of conviction. Crown withdrew the charge, bringing the matter to an end. No criminal record.

R. vs. M.B. - Surrey Provincial Court

Charge: Application for firearms prohibition and forfeiture.
Issue: Whether Crown could establish that our client posed a risk to himself or others.
Result: Mid trial, Mr. Mines was able to obtain a successful resolution in which our client consented to an 18 month prohibition rather than the 5 years Crown had been seeking.  Further, rather than having to forfeit the  $15,000 worth of weapons that police seized,  Crown agreed to allow our client to sell them to a suitable buyer.

R. vs. C.B. - Vancouver Police Investigation

Charge: Possession of proceeds of crime.
Issue: Whether there was any lawful authority to arrest our client and seize funds from him.
Result: Mr. Johnson was able to persuade the investigating officer that there was no basis to search our client and to return the $2400 cash that he had seized. No charges approved. Not criminal record.

R. vs. R.L. - Surrey Provincial Court

Charge: Assault.(domestic)
Issue: Given the rehabilitative steps we were able to guide our client through, whether our client would be convicted of assaulting his son.
Result: Notwithstanding the breach of trust, after hearing Mr. Mines' submissions, the court granted our client a 12 month conditional discharge.

R. vs. S.B. - New Westminster Provincial Court

Charge: Public Mischief x2; Assault Police Officer.
Issue: Given our client's personal circumstances and his rehabilitation, whether there was a public interest in proceeding with the criminal prosecution.
Result: Mr. Mines was able to persuade Crown counsel to allow our client into the Alternative Measures Program and, upon its completion, to direct a stay of proceedings. No criminal record.

R. v. A.M. - Vancouver Provincial Court

Charge: Assault.
Issue: Whether it was in the public interest to proceed with the prosecution.
Result: Mr. Mines was able to guide our client through a course of rehabilitative steps and was then able to persuade Crown counsel to direct a stay of proceedings. no criminal record.

R. vs. M. P. - Vancouver Provincial Court

Charge: Assault Police Officer, Obstruct Police Officer.
Issue: Whether, in the circumstances, the police lawfully arrested our client.
Result: Mr. Mines was able to persuade Crown counsel that the arrest was unlawful and that, therefore, our client was able to resist the arrest. Stay of Proceedings prior to trial. No criminal record.

R. vs. S.H. - Vancouver Police Investigation

Charge: Assault.
Issue: Whether the evidence was sufficient to support a criminal prosecution.
Result: Mr. Johnson made representations to the investigating officers which ultimately persuaded police to not forward any charges to Crown counsel. No criminal record.

R. vs. H.J. - Surrey Provincial Court

Charge: Unlawful Storage of Firearms.
Issue: Whether it was in the public interest to proceed with the criminal charge.
Result: Mr. Mines was able to persuade Crown counsel to direct a stay of proceedings upon our client agreeing to a 5 year firearms prohibition. No criminal record.

R. vs. T.Y. - Vancouver Provincial Court

Charges: Domestic Assault (x2).
Issue: Given the extensive rehabilitative steps our client took, whether it was in the public interest to proceed with the charges.
Result: Mr. Mines was able to persuade Crown counsel to enter a stay of proceedings on both charges. Our client was able to reconcile with his family. No criminal record.

R. vs. M.R. - Vancouver Provincial Court

Charge: Mischief Under $5000.
Issue: Whether it was in the public interest to proceed with the charge, given the excessive force used in arresting our client.
Result: Mr. Johnson provided information to Crown on our client's behalf and was able to persuade Crown to enter a stay of proceedings. No criminal record.

R. vs. J.T. - Surrey Provincial Court

Charges: Assault; Resist /Obstruct Police.
Issue: Whether there was a substantial likelihood of a conviction and whether there was a public interest in proceeding with the charges.
Result: Mr. Johnson provided Crown with additional information regarding the alleged facts of the assault complaint and the excessive force used by police in arresting our client.  Ultimately Mr. Johnson persuaded Crown counsel to stay the proceedings on both charges. No criminal record.

The Defence

Consent

As in a common assault charge, the Crown must prove that the accused applied force directly or indirectly to another person without their consent. This includes threatening, by act or gesture, to apply such force to another person. Assault with a Weapon, therefore, includes all acts where force is actually applied (such as striking someone with an object, or stabbing them) to acts where force is threatened (such as raising a gun, knife or other object toward the person).

Self Defence

The law allows that if a person reasonably believes that force is being used (or threatened to be used) against them, they are allowed to use force to defend themselves, or another person, so long as the force they use is reasonable. In determining whether the force used was reasonable, the court will consider various circumstances, including:

  • The nature of the force or threat;
  • The extent to which there was an alternative to using force;
  • The size, gender and physical capabilities of the parties; and
  • The history and relationship of the parties.

Self-defence is available, therefore, to an assault with a weapon charge to the extent that the accused person, objectively, had to defend themselves (or another person). The force used must not be excessive. Clearly, a person is not permitted to defend themselves from a punch by pulling out a gun and killing the attacker. However, the law holds that a person being attacked is allowed to use “reasonable force,” and, in the heat of the moment of being attacked, is not required to fully “measure” the amount of force that they use in self-defence.

As lawyers with more than 25 years of experience defending all types of assault cases, we have the experience and skills to assess your case before it gets to trial. In appropriate cases, we are able to persuade Crown counsel to not proceed with the prosecution, to proceed on a lesser charge, or to persuade the judge to grant a discharge rather than convict our client. In cases that do proceed to trial, we are well-versed in the various defences that are available to Assault with a Weapon charges.

Start with a free consultation.

If you are being investigated by police or if you’ve been charged with a criminal or driving offence, don’t face the problem alone. Being accused of an offence is stressful. The prospects of a criminal record or jail sentence can be daunting. Even if you think there is no defence, we may be able to help. To schedule a free initial consultation with one of our Vancouver lawyers, contact us now.