Aggravated Assault In Canada
Aggravated assault is defined in section 268 of the Criminal Code of Canada as an assault that wounds, maims, disfigures or endangers the life of the complainant. Usually the alleged assault involves a weapon, such as a firearm or knife, though a weapon is not required. It is a straight indictable offence carrying a maximum sentence of 14 years in prison, with no mandatory minimum.
The level of injury inflicted on the complainant, along with the personal circumstances of the accused, will likely determine the sentence imposed by the judge. Since a November 2022 amendment to the Criminal Code, a conditional sentence served in the community may be available in limited circumstances where the legal requirements are satisfied and the appropriate sentence is under two years. At The Criminal Law Team, we have been successful in obtaining a non-custodial sentence for clients who have pleaded guilty to aggravated assault or a lesser charge such as assault causing bodily harm.
In terms of defending a charge of aggravated assault, self-defence is available if the accused reasonably believed that there is a threat to their safety; that the accused used that force solely to defend oneself, and they used reasonable force in defending themselves against the perceived threat.
What is the Sentence for Aggravated Assault in Canada?
Being convicted of aggravated assault in Canada carries a very significant penalty. As a straight indictable offence under section 268 of the Criminal Code, aggravated assault carries a maximum sentence of fourteen (14) years in prison. Aggravated sexual assault, a separate offence under section 273, can carry a maximum sentence of life imprisonment.
There is no mandatory minimum sentence for aggravated assault. Sentencing depends on the circumstances of the offence, including the seriousness of the injuries, whether a weapon was involved, the accused’s criminal record and whether the assault occurred in a domestic context. We, at The Criminal Law Team, always strive to investigate what factors, such as mental illness, addiction, etc., may have contributed to the commission of the offence. We will assist the client in arranging counselling, etc. to aid in their rehabilitation. In these circumstances, the court will treat these efforts as a mitigating factor that will reduce the sentence accordingly.
Since November 2022, Conditional Sentence Orders may be available for aggravated assault in certain circumstances. Where the appropriate sentence is less than two years and all statutory requirements are met, an eligible sentence may be served in the community under strict conditions instead of in custody.
A conviction can also result in additional legal consequences, including weapons restrictions, potential DNA-order requirements and impacts on employment, travel or immigration status. These consequences depend on the circumstances and applicable law.
These life altering sentences can have a severe impact on your life. Finding the right lawyer to represent you is a critical decision and should not be taken lightly. We at The Criminal Law Team understand how daunting the process ahead of you may seem, and will handle your case with expert care and attention to detail. Using our years of experience, we will strive to get all your charges reduced or dismissed. Click here for a free consultation on your case.
| Assault offence | Criminal Code | Maximum imprisonment |
| Simple assault | s.266 | 5 years on indictment |
| Assault with a weapon or causing bodily harm | s.267 | 10 years on indictment |
| Aggravated assault | s.268 | 14 years Preliminary hearing eligible Jury trial eligible |
| Aggravated sexual assault | s.273 | Life imprisonment Preliminary hearing eligible Jury trial eligible |
How Can I Get The Charges Withdrawn or Reduced?
In most cases, The Criminal Law Team has succeeded in reducing charges of Assault Causing Bodily Harm to Simple Assault, or obtaining a withdrawal with or without a peace bond. We can evaluate your case with a free initial consultation. See what our other clients are saying about us. We can help you too!
Related Article: I’ve Been Arrested, What Should I Expect?
Can You Consent to a Fight That Causes Serious Injury?
The defence of consent does not apply to aggravated assault charges, unless the accused did not intend to cause bodily harm to the complainant. In Canadian criminal law a complainant cannot consent to be wounded, maimed, or disfigured. However, circumstances may arise where, by accident, a complainant was seriously injured, and the accused only intended to commit a simple assault, and did not foresee the serious consequences of his actions. For example, if, during a consent fight, the accused pushed the complainant to the ground, resulting in a serious head injury that could not have been reasonably foreseeable, the accused would be not guilty of assault (and not guilty of a more serious assault, such as aggravated assault), unless his actions went beyond the scope of the consent fight.
For further discussion of the issue of consent, see our full article on assault causing bodily harm in Canada.
Is Self-Defence a Defence to Aggravated Assault?
Of course, self defence is an available defence to aggravated assault in Canada. The law recognizes that a person can use force to protect themselves, their family or property, so long as the use of force is subjectively reasonable. Most people mistakenly believe that arguing self-defence is very cut and dry. You may be tempted to believe that stating, “they attacked me first, and I was just protecting myself” will be the end of the case. However the reality is, because the complainant has usually sustained significant injury in an aggravated assault case, advancing a self-defence argument can be quite complicated. A criminal defence lawyer knows the ins-and-outs of the law of self-defence. Their knowledge and expertise is vital in demonstrating that the use of force was reasonable. Having the right aggravated assault lawyer representing you at trial can mean the difference between a conviction and an acquittal.
Related Article: Assault Police / Assault Resisting Arrest.
How Is Aggravated Assault Different From Assault Causing Bodily Harm?
Assault causing bodily harm under section 267 of the Criminal Code involves an assault that causes an injury that interferes with health or comfort and is more than merely transient or trifling. Aggravated assault under section 268 involves more serious consequences: wounding, maiming, disfigurement or endangerment of life. Aggravated assault carries a maximum penalty of 14 years in prison, compared with 10 years for assault causing bodily harm.
Assault with a weapon, also addressed under section 267, involves committing an assault while carrying or using a weapon; or threatening to use a weapon or imitation weapon. It carries the same maximum indictable penalty as assault causing bodily harm. For a conviction, there does not need to be any injuries to the victim. A threat to use a weapon will suffice.
For more information about the legal distinctions and possible consequences, read our full article on assault causing bodily harm in Canada. Also see our full article on Assault Causing Bodily Harm in Canada.
Are You Seeking an Aggravated Assault Lawyer After Being Charged?
Our Toronto Criminal Lawyers will discuss your case with you in confidence. Many charges of assault- aggravated assault, assault bodily harm, assault with a weapon- are unfounded, and, with our over 60 years of experience defending criminal charges, we will get to the truth of the matter by unravelling the misunderstanding and lies, and expose them to the Court. We are available to help you 24/7 starting with a free evaluation of your case. Just click on the button below to speak in confidence with one of our experienced aggravated assault lawyers today.
Frequently Asked Questions
Assault causing bodily harm under section 267 of the Criminal Code involves an injury that is more than merely transient or trifling. Aggravated assault under section 268 involves wounding, maiming, disfigurement or endangerment of life. The maximum prison sentence is 10 years for assault causing bodily harm and 14 years for aggravated assault. Learn more about assault causing bodily harm in Canada.
There is no mandatory minimum prison sentence for aggravated assault under section 268 of the Criminal Code. The sentence depends on the circumstances, including the seriousness of the injuries and the offender’s circumstances. In eligible cases, a conditional sentence served in the community may be possible if all legal requirements are satisfied.
Yes. Depending on the evidence and circumstances, aggravated assault charges may be withdrawn by the Crown, reduced to a lesser charge or stayed by the court, including in certain cases involving unreasonable delay. Some matters may also be resolved through a peace bond where legally appropriate. Every case is different, and the available options depend on the facts and applicable law.
Yes. Self-defence may be available where the legal requirements are satisfied, including whether the accused reasonably believed force was being used or threatened and whether the response was reasonable in the circumstances. Because aggravated assault involves serious injury or danger to life, these cases often require a detailed review of the evidence and circumstances.
Consent can be a complicated issue in assault cases. Canadian law places limits on consent to the intentional infliction of serious bodily harm. In certain school yard fight scenarios, consent is a defence to a charge of assault causing bodily harm. This will depend on the nature and degree of the force used and the applicable legal principles. A criminal defence lawyer can assess how consent may affect the charges.
Consent is not an available defence to an aggravated assault allegation, however, if the assault occurred in circumstances where the accused could not objectively foresee the risk of bodily harm, then the accused may have a defence of consent to a fight. For example, if the accused pushed the victim during a consent fight, which resulted in them falling and hitting their head on an object that was not objectively foreseeable to have caused an aggravated assault, then the defence may be available.