Elements of the Offence
Although assault with a weapon and assault causing bodily harm require different elements necessary to constitute an offence, both offences can be found in section 267 of the Criminal Code of Canada.
Assault with a weapon requires that a person assault another person while carrying, using, or threatening to use either a weapon or an imitation of a weapon.
Simply put, assault causing bodily harm occurs when an assault results in bodily harm to the complainant.
A weapon is “any thing used, designed to be used or intended for use; (a) in causing death or injury to any person or (b) for the purpose of threatening or intimidating any person.”
The fact the a weapon was not the cause of any of the victim’s injuries does not prevent the Crown Attorney from establishing its case. The Crown only needs to prove that the weapon was used in course of the offence and that the object was in fact a weapon.
Bodily harm is defined in section 2 of the Criminal Code as “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature”.
Our courts have held that bodily harm can be established even if there is only interference with comfort, so long as that intererence is more than trifling and transcient in nature.
Trifling and transcient in nature refers to a very short period of time where an injury is very minor in nature and there is a very minor degree of distress.
Penalty for Assault with a Weapon or Assault Causing Bodily Harm
Similar to assault, assault with a weapon and assault causing bodily harm are hybrid offences. Upon conviction, the maximum penalty for either of these offences is 18 months imprisonment when the Crown Attorney proceeds summarily. However, where the Crown Attorney proceeds by indictment, the maximum penalty upon conviction is 10 years imprisonment. Where the Crown Attorney does proceed by indictment, a conditional sentence is not available.
Upon conviction for either assault with a weapon or assault causing bodily harm the Crown may bring a dangerous offender application. Either offence is also a primary designated offence with respect to making an DNA data bank order.
There is also a mandatory weapons forfeiture order under s. 491 for a conviction, and a mandatory firearms order when the Crown Attorney proceeds by indictment or a discretionary firearm order when the Crown proceeds summarily.
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Charges of assault with a weapon and assault causing bodily are very serious criminal charges that can result in a period of imprisonment upon conviction.