Assault With a Weapon: What Counts as a Weapon in Canada
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Charged with assault with a weapon? Tell us what happened.
The short answer
Under Canadian law, almost any object can be a weapon, because what matters is how the object was used, or meant to be used, rather than what it is. A kitchen knife, a bottle, a bat, a belt or even a shoe can all be weapons in the right circumstances.
Assault with a weapon means carrying, using or threatening to use a weapon, or an imitation of one, during an assault (s. 267(a)). Because the definition is so broad, many of these cases turn on what the person actually did with the object, and why.
Charged with assault with a weapon?
The legal definition of a weapon
Section 2 of the Criminal Code defines a weapon as anything used, designed to be used or intended for use in one of two ways:
- To cause harm: The object is used or intended to cause death or injury to a person.
- To threaten: The object is used or intended to threaten or intimidate a person.
The definition includes firearms, and for assault with a weapon it also includes anything used to tie up or restrain a person against their will, such as rope, tape or zip ties.
Everyday objects can be weapons
The key question is how the object was used or intended to be used. For example, a coffee mug thrown at someone during an argument can be a weapon. A set of keys held between the fingers during a fight can be a weapon. A car driven at someone can be a weapon, and it can also lead to dangerous driving charges. A phone used to strike someone can be a weapon as well.
The same objects carried or used for normal reasons are not weapons. A mug on a kitchen counter or keys in a pocket do not become weapons simply because they could have been used to cause harm.
Carrying, using or threatening
There are three ways to commit assault with a weapon during an assault:
- Carrying: You carried a weapon during the assault, even if you never used it.
- Using: You used a weapon, such as striking someone with it.
- Threatening to use: You threatened to use a weapon, such as raising a bat at someone.
No injury is needed for this offence, although if someone was injured, the Crown may also charge assault causing bodily harm, which is in the same section. See assault causing bodily harm.
What the Crown must prove
The Crown must prove each of the following beyond a reasonable doubt:
- An assault: You used, tried or threatened force on purpose, without the other person's consent.
- An object: During the assault, you carried, used or threatened to use an object.
- A weapon: The object was a weapon or an imitation, based on how it was used or intended to be used.
The second and third points are often where the defence focuses. For example, holding a phone while pushing someone is not the same as hitting them with it.
What happens after you are charged
- Release or bail: Police may release you with conditions or hold you for a bail hearing. Release orders for violent offences must include a weapons ban unless it is not needed for safety (s. 515(4.1)).
- Disclosure: The Crown provides the police reports, statements, photographs and any video.
- Crown pre-trial: Your lawyer reviews whether the object really meets the definition of a weapon and discusses possible resolutions.
- Resolution or trial: If the case does not resolve, it is set for trial, where the Crown must prove every element.
The evidence in a typical case
The Crown often relies on the complainant's account, witness statements, video from phones or security cameras, photographs of the object and the scene, and any medical records. The object itself may also be seized and shown in court. Video can be especially important, because it may show whether an object was actually raised or used, or simply held.
Possible outcomes
No conviction
These outcomes end the case without a criminal conviction.WithdrawalThe Crown drops the charge.
Withdrawal: The Crown may withdraw the charge if the evidence is weak.
A peace bond or dischargeAlternatives that avoid a criminal conviction.
A peace bond or discharge: These may be possible in some cases and are not convictions.
Conviction
These outcomes follow a finding of guilt and leave a criminal record.A convictionThe court enters a conviction and imposes sentence.
Sentences range from probation to jail, depending on the facts.
Depends on the case
These steps can lead to either result.A reduced chargeA less serious charge replaces the original.
The charge may be reduced to common assault if the object was not really used as a weapon.
Effects beyond the sentence
Assault with a weapon carries a 10-year maximum, so a conviction can make a permanent resident inadmissible for serious criminality under s. 36 of the Immigration and Refugee Protection Act. A conviction by indictment also brings a mandatory weapons prohibition under s. 109, and it can affect employment and travel to the United States.
What to do now
- Do not contact the complainant if your release conditions forbid it.
- Write down what happened, including where the object came from and how it was held.
- Identify any witnesses or video that show what really happened.
- Do not give a statement to police before you get legal advice.
Weapons in domestic situations
Many assault with a weapon charges come from arguments at home, where ordinary household objects are close at hand. A plate, a remote or a kitchen utensil picked up during a heated moment can lead to this charge. When the complainant is a partner or family member, release conditions often keep the accused out of the home, and the Crown may treat the relationship as an aggravating factor.
How we can help
We can review how the object was actually used, test whether it meets the legal definition and look at whether a lesser charge fits. Call (647) 223-1980 for a free consultation. We accept Legal Aid Ontario certificates.
Frequently asked questions
Is a shoe a weapon?
It can be, if it was used to cause injury, such as kicking someone with a heavy boot.
Is a car a weapon?
It can be, if it was used to strike or threaten someone. Dangerous driving charges may also apply.
Do I have to hurt someone to be charged?
You do not, because carrying or threatening with a weapon during an assault is enough.
What if I only picked up the object to protect myself?
Self-defence may apply. See using an object in self-defence.
Can a fake weapon count?
An imitation weapon is treated the same as a real one for assault with a weapon, because the law covers weapons "or an imitation thereof."
What if I was holding the object for a normal reason?
Holding an object for a normal reason does not make it a weapon. The Crown must prove it was used or intended to be used to harm, threaten or intimidate.
Does the object have to be dangerous?
The object does not have to be dangerous in itself. What matters is how it was used or intended to be used during the assault.
Can I be charged with both assault with a weapon and assault causing bodily harm?
Both charges can be laid for the same incident, because they are separate parts of s. 267, although a court will not usually convict on both for the same act.