What is Aggravated Assault?
Aggravated assault is an offence under section 268 of the Criminal Code of Canada. A person commits aggravated assault when they assault another person and, as a result, wound, maim, disfigure, or endanger the life of that person. Aggravated assault is an indictable offence and carries a maximum sentence of 14 years’ imprisonment.
Aggravated Assault vs. Assault
The Criminal Code contains various levels of assault.
- A simple assault → Does not necessarily involve injury at all, and an allegation of assault can arise from the intentional application of force or threat of use of force or threat of use of force without consent.
- Assault causing bodily harm → involves hurt or injury that is more than merely transient or trifling in nature.
- Aggravated assault → involves a higher threshold of injuries, which would include maiming (severe or permanent damage to someone’s body), wounds (breaking of the skin), disfigurement (permanent damage/alteration of an individual’s appearance), or an individual’s life is endangered.
It is important to distinguish aggravated assault from less serious forms of assault. As such, the nature and consequences of the injuries are particularly important in determining whether an alleged assault falls within section 268. Not every injury caused during an assault will amount to aggravated assault. Section 268 applies where the consequences of the assault reach the level of wounding, maiming, disfiguring or endangering the complainant’s life. Whether an injury meets this threshold depends on the evidence in the particular case.
Elements of the Crime
The Crown must prove the offence beyond a reasonable doubt. In an aggravated assault, this would mean proving an assault as per section 265; therefore, the required elements the Crown must prove beyond a reasonable doubt are:
- Force was applied intentionally;
- The complainant did not consent to the application of force;
- There was objective foresight of the risk of bodily harm
- The complainant was wounded, maimed, disfigured, or their life was endangered.
The Supreme Court in R v Godin indicated that the mens rea (state of mind) required for the offence is objective foresight of bodily harm, and it does not require proof of an intent to maim, wound, or disfigure. Additionally, the actus reus (the guilty act) requires endangerment of the victim’s life. In order to be guilty of aggravated assault, the actus reus and mens rea have to be concurrent.
Defences to Aggravated Assault Charges
There is no single defence to aggravated assault. Defences vary from case to case and depend on the circumstances surrounding the assault and the evidence available. Some possible defences include:
- Assault was carried out as a way of self-defence
- Identity issues (Important if multiple people are involved)
- Injury does not meet the threshold for aggravated assault
- Injury was not foreseeable
- There was consent
- Charter issues
Penalties and Sentencing for Aggravated Assault
Aggravated assault is an indictable offence carrying a maximum sentence of 14 years’ imprisonment. However, not everyone will receive a jail sentence. The maximum sentence represents the upper limit available under the Criminal Code. Sentencing in Canada is an individualized exercise and can vary from case to case, and courts consider various aggravating and mitigating factors. Below is a list of non-exhaustive aggravating and mitigating factors that courts may consider in sentencing:
Aggravating factors that may affect sentencing:
- Serious of injuries to the complainant
- Repeated violence
- Circumstances surrounding the event
- Prior criminal record for similar offences
- Assault was motivated by bias, prejudice or hate
- Assault was against an intimate partner or a member of the accused’s family
- Against someone under the age of 18
Mitigating factors that may affect sentencing:
- No prior criminal record
- Accepting responsibility/early guilty plea
- Demonstrating remorse
- Taking rehabilitative steps
- Personal circumstances that may be relevant
How Collett Read LLP can Help
Aggravated assault charges carry severe legal consequences and require a robust, strategic defence to challenge the Crown. If you or someone you know is facing an aggravated assault investigation or charge, contact us at 905-541-2228 or fill out our intake form for a free consultation.
