Assault with a weapon is considered more serious than a simple assault charge given the use or threatened use of a weapon. Assault with a weapon is a commonly laid charge in the domestic violence context. The charge can be laid if you throw an object in an individual’s direction even when it does not strike them. The mens rea (“guilty mind”) element of the offence is most often litigated in these cases. The law divides mens rea into: intention, recklessness and carelessness. If you intend to throw an object absent an intention to hit somebody, you don’t have the requisite mens rea to be convicted of the offence. Conversely, if you throw an object with an intent to strike a victim, but it hits somebody else, the doctrine of transferred intent applies and you may be found guilty. Common defences to Assault with a Weapon charges include: defence of person (self-defence), defence of property and Accident/Mistake.
Common senses dictates that many objects can be used as a weapon such as: a gun, a baseball bat, a hammer or a knife. The law goes much further than this. Section 2 of the Criminal Code of Canada defines a weapon as:
The Criminal Code also clarifies the obvious by indicating that a firearm is a weapon. Any object or thing that is designed or used to tie somebody up against their will is also a weapon. According to the definition above, anything can be a weapon. From a technical standpoint a weapon could include: a sandwich, a chair, an ice cube or saliva (spitting on somebody is Assault with a Weapon).
Assault with a weapon is a hybrid offence, which means the crown attorney can elect to proceed summarily or by indictment. If the crown elects to proceed by indictment the maximum penalty under section 267 of the Criminal Code is ten years in a penitentiary. If the crown proceeds by way of summary conviction, the maximum penalty is eighteen months in a provincial jail. Summary conviction offences typically carry a maximum penalty of a $5,000 fine and/or six months’ imprisonment. Assault with a weapon is a “super-summary” offence which carries an increased maximum penalty. It is not uncommon for crown attorneys to seek incarceration upon conviction in such cases.