Threats With a Weapon or an Imitation Weapon

The short answer

You do not have to touch anyone, and the weapon does not have to be real. Threatening someone with a weapon, or a convincing fake, during an assault can be assault with a weapon under s. 267(a). Using a real or imitation firearm during most indictable offences is also a separate and serious crime under s. 85, and its sentence must be served on top of any other sentence.

Threatening with a weapon

An assault includes threatening to use force by an act or gesture, if you have, or appear to have, the ability to carry it out (s. 265(1)(b)). Raising a bat, waving a knife or pointing something at someone can all be threatening gestures. If you make that kind of gesture with a weapon, it can be assault with a weapon, even if there is no physical contact.

Imitation weapons

Section 267(a) covers weapons "or an imitation thereof." A fake knife, a replica gun or a toy that looks real is treated the same as the real thing for assault with a weapon. What matters is the threat it creates, not whether the item could actually hurt anyone.

Imitation firearms: a separate, serious offence

Using a firearm or an imitation firearm while committing most indictable offences is a separate crime under s. 85. That includes assault with a weapon when it is prosecuted by indictment.

• Maximum: The maximum sentence is 14 years.
• Consecutive sentence: Any sentence must be served consecutively, meaning on top of the sentence for the other offence (s. 85(4)).
• Minimum: There is no mandatory minimum, because it was repealed in 2022.

For example, pointing a realistic toy gun at someone during an argument could lead to both assault with a weapon and using an imitation firearm, with the second sentence added to the first. See our firearms charges page.

Uttering threats vs assault with a weapon

Words alone, such as "I'm going to stab you," are usually charged as uttering threats. See our uttering threats page. A threatening act or gesture with a weapon, or carrying a weapon during an assault, can be assault with a weapon. Both offences can be charged for the same incident, and the Crown may later withdraw one of them as part of a resolution.

What happens after you are charged

1. Release or bail: Charges involving a firearm or imitation firearm often lead to strict release conditions, and some firearm offences carry a reverse onus.
2. Disclosure: The Crown provides statements, video and photographs of the object.
3. Crown pre-trial: Your lawyer discusses whether a s. 85 charge can be withdrawn, which can significantly reduce the overall sentence.
4. Resolution or trial: If the case does not resolve, the Crown must prove the threat and the object at trial.

The evidence in a typical case

The evidence often includes the complainant's description of the gesture, witness accounts, video and the object itself. If the object was a replica or toy, how realistic it looked is important. The Crown may also rely on the complainant's description of their fear and reaction. The Crown may present photographs of the item to show how it appeared to the person who was threatened.

Defences

• No threatening act: The object was held, not raised or pointed at anyone.
• No apparent ability: The other person could not reasonably believe you could carry out the threat.
• Lawful purpose: You were carrying a tool for work or another lawful reason, and it was not used in an assault.
• Self-defence: You were responding reasonably to force or a threat of force. See using an object in self-defence.
• Identity: The evidence does not clearly show who held the object, especially in group incidents.

Possible outcomes

Effects beyond the sentence

Assault with a weapon and s. 85 both carry maximums of 10 years or more, so a conviction can make a permanent resident inadmissible for serious criminality. A conviction under s. 85 also brings a mandatory weapons prohibition under s. 109.

Replica guns and BB guns

Replica guns, airsoft guns and BB guns are often treated as imitation firearms when they are used to threaten someone. Some air guns are powerful enough to count as real firearms under the law, which can lead to more serious firearm charges. If an item like this was involved, its exact type and power should be checked carefully.

Release conditions

People charged with threatening someone with a weapon or imitation weapon usually receive strict release conditions. These often include no contact with the complainant, no weapons of any kind and staying away from certain places. If a firearm or imitation firearm was involved, the Crown may also seek a surety or a curfew.

What to do now

• Do not contact the complainant or witnesses if your conditions forbid it.
• Keep any receipts or packaging that show what the object really was.
• Do not post about the incident on social media.

Group incidents

When several people are involved in a confrontation, police often charge everyone who was present, even if only one person held an object. The Crown must prove that you personally carried, used or threatened with the weapon, or that you knowingly helped or encouraged someone who did. Video and independent witnesses are often the key to separating one person's actions from another's.

How we can help

We can review exactly what was done with the object, whether it meets the legal test and whether an imitation firearm charge can be avoided. Call (647) 223-1980 for a free consultation.

Frequently asked questions