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Canadian Criminal Law/Offences/Aggravated Assault

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Aggravated Assault
s. 268 of the Crim. Code
Election / Plea
Crown ElectionIndictable
JurisdictionProv. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Indictable Dispositions
Avail. Disp.Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Maximum14 years jail
References
Offence Elements
Sentence Principles
Sentence Digests
Comments
DO/LTO primary designated offence
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Legislation

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268. (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.

...

Excision
(3) For greater certainty, in this section, “wounds” or “maims” includes to excise, infibulate or mutilate, in whole or in part, the labia majora, labia minora or clitoris of a person, except where

(a) a surgical procedure is performed, by a person duly qualified by provincial law to practise medicine, for the benefit of the physical health of the person or for the purpose of that person having normal reproductive functions or normal sexual appearance or function; or
(b) the person is at least eighteen years of age and there is no resulting bodily harm.

Consent
(4) For the purposes of this section and section 265, no consent to the excision, infibulation or mutilation, in whole or in part, of the labia majora, labia minora or clitoris of a person is valid, except in the cases described in paragraphs (3)(a) and (b).


– CCC

Proof of Offence

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In addition to the essential elements of time, location, and identity, the prosecution should also prove:

  1. that an assault occurred (e.g. intentional application of force with no consent)
  2. the injuries sustained
  3. the injuries amounted to the victim being (See Injuries):
    1. wounded,
    2. maimed,
    3. disfigured, or
    4. had life endangered
  4. that there was no provocation

Interpretation

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"Wound" refers to any break in the skin.[1]

"Maiming" refers to "a hurt to the body that causes a person to be less able to fight".[2] This includes breaking of bones.

"Disfigure" refers to injuries that amount to "more than a temporary marring of the figure or appearance".[3]

  1. ↑ R. v. Littletent, 1985 ABCA 22 (CanLII), AJ No. 256
  2. ↑ R. v. Schultz, [1962] 133 C.C.C. 174 (Alta. S.C. App. Div.)
  3. ↑ R. v. Innes and Brotchie, [1972] 7 C.C.C. (2d) 544 (B.C.C.A.)

Endangering life

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The "endangerment" of life refers to the consequence of the injuries received (a product of wounds, maiming or disfigurement) and not simply the risk created by accused assaultive behaviour. No injuries are not necessary.[1]

  1. ↑ R. v. De Freitas 1999 CanLII 14071 (MB CA) at 11 and 12

Discharging a firearm

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Where the aggravated assault arises from the discharge of a firearm, the crown must prove:[1]

  1. that the accused intentionally applied force or intentionally threatened to apply while having the ability to carry it out;
  2. that a reasonable person in the accused's position would have been able to foresee that pointing or firing the firearm would subject the victim to a risk of bodily harm; and
  3. that actual wounding, maiming, or disfigurement resulted.
  1. ↑ R. v. Foti, 2002 MBCA 122 (CanLII)

Common Defences

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