Criminal Code of Canada - section 268(1)

section 268(1)

INTRODUCTION AND BRIEF DESCRIPTION

An analysis of section 268 of the Criminal Code of Canada setting out the offence of aggravated assault.

SECTION WORDING

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

EXPLANATION

Aggravated assault is an augmented form of assault simpliciter as found at section 266 of the Criminal Code. In addition to requiring an unwanted application of force, the offenc of aggravated assault requires the intent to wound, main or disfigure the victim, or endangers that person's life. Aggravated assault has a maximum punishment of fourteen years in jail. Aggravated assault is a straight indictable offence, and is also classified as a primary designated offence for the purposes of the dangerous offender and long-term offender provisions of the Code.

COMMENTARY

Section 268(1) of the Criminal Code of Canada outlines the definition and consequences of aggravated assault. It states that an individual can be charged with aggravated assault if they intentionally or recklessly cause serious harm to another person. The section specifies that serious harm can include wounding, maiming, disfiguring, or endangering the life of the complainant. This section of the Criminal Code is crucial in ensuring that individuals who engage in violent behavior are held accountable for their actions. Aggravated assault is a serious offence that can result in significant physical and emotional harm to the victim. Therefore, it is important that the law takes a firm stance against it. Wounding refers to causing a break in the skin or an injury that penetrates the body. This can include stabbing, shooting, or other forms of physical violence that result in a puncture or tear in the flesh. Maiming involves causing serious harm to a body part, resulting in its loss or permanent disability. This can include the loss of a limb, an eye, or other body parts that can impact the victim's quality of life. Disfiguring refers to injuring or altering the physical appearance of an individual. This can include severe burns, scarring, or other injuries that cause a permanent change in the individual's appearance. Disfigurement can lead to significant emotional trauma for the victim, as they may feel self-conscious or struggle with body dysmorphia as a result of their injuries. Endangering the life of the complainant involves engaging in behavior that puts the victim's life in immediate danger. This can include acts of violence that cause severe internal bleeding, organ damage, or other injuries that can lead to death. Endangerment of life is one of the most serious forms of aggravated assault, as it involves a direct threat to the victim's existence. Individuals who are convicted of aggravated assault can face a range of penalties, including imprisonment for up to fourteen years. The severity of the penalty will depend on a variety of factors, including the level of harm inflicted on the victim, the intent of the perpetrator, and the circumstances surrounding the assault. Overall, Section 268(1) of the Criminal Code of Canada plays a critical role in protecting individuals from violent behavior and ensuring that offenders are held accountable for their actions. By defining aggravated assault and outlining the consequences of this crime, the law helps to deter individuals from engaging in violent behavior and promote safety in society.

STRATEGY

From a factual perspective, disclosure on charges of aggravated assault will often come with extensive medical documentation detailing the injuries, as well as injury photos and testimony of the sequelae suffered due to the injury. These are difficult to get around from a cross-examination standpoint. It is often difficult, if not imposible, to argue that the victim injured themselves to that extent, and is attempting the frame your client. Thus, beyond the typically arising issues of identify, causation is rarely at issue. In such scenarios, the focus in an aggravated assault trial will often be on the intention of the accused, whether the injury was objectively foreseeable, and whether the self-defence provisions at section 34 of the Criminal Code apply. Aggravated assault charges are often paired with a charge of attempted murder, or alternatively with a charge of assault causing bodily harm. In cases where an attempted murder charge is laid, attacking the factual basis and mens rea component of that charge to reduce the charge to an aggravated assault is a common approach. In cases where the aim is to reduce a charge from an aggravated assault to an assault causing bodily harm, the focus would be on whether the injury caused was objectively forseeable - that is, whether a reasonable person ought to have foreseen that harm would ensue. That objective foreseeability standard is borrowed from the civil law, in which traditional English law framed objectivity as from the viewpoint of a hypothetically "reasonable man on the Clapham omnibus." In simple terms, the question is whether the accused foresaw, or ought to have foreseen that an injury would ensue.

QUESTIONS AND ANSWERS

Is aggravated assault an offence of general or specific intent?

Superficially, the wording of the section suggests that aggravated assault is an offence of specific intent. However, Courts have held that the mens rea required for aggravated assault is same the mens rea for assault simpliciter, combined with objective foresight of the risk of bodily harm. The specific harm need not have been objectively foreseeable, but rather harm generally.

What is the maximum penalty available on a charge of aggravated assault?

The maximum penalty listed for a charge of aggravated assault is fourteen years of jail. However, it should be noted that aggravated assault is a crime that opens the door to the dangerous offender provisions. In cases where egregious levels of injury have ensued, it is not uncommon for the Crown to pursue a risk assessment upon conviction on a charge of aggravated assault, even for a first time offender. Indeed, section 753(1)(a)(iii) specifically contemplates offences that "...is of such a brutal nature as to compel the conclusion that the offenders behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint..."

RELATED CASES

R. v. Bear

Accused convicted of common assault after spitting in the face of arresting police officer. The charge was upgraded upon appeal to attempted aggravated assault due to the fact that the accused had threatened to transmit his HIV infection via spit before proceeding to spit on the officer. The officer did not contract HIV, as such it was not an aggravated assault but an attempt.

R. v. Carriere

Carriere was charged with aggravated assault after being found to have stabbed another woman in the abdomen. The accused argued that she should not be charged with aggravated assault as the complainant had agreed to a knife fight. The court found that separate from consenting to assault, one cannot consent to being stabbed. As such, the accused was found guilty of aggravated assault.

R. v. Godin

The accused was charged with aggravated assault after bringing a baby to the hospital where they found a traumatic head injury upon examination. His defence was that he panicked when the child started choking on medication that he had administered, and in the resulting chaos he had accidentally banged the childs head. Despite having no intention to maim the child, the fact that the maiming occurred was enough to find the accused guilty of aggravated assault.

R. v. Littletent

The accused was charged with aggravated assault for attacking a corrections officer while incarcerated. The defence argued that the perforation of the complainants eardrum was not proven beyond a reasonable doubt to be a result of the assault, and therefore it should be a common assault, as the threshold for wounding (the breaking of skin) was not met. The courts decided that there would be no other reasonable cause for the perforated eardrum other than as a result of the assault, and as such the accused was convicted of aggravated assault.

R. v. Williams

The accused and the complainant were in an ongoing sexual relationship. Six months into their relationship, the accused found out that he was HIV positive. Despite receiving counselling on safe-sex practices and the requirement of disclosure to partners, he continued to have unprotected sex with the complainant. Originally charged with aggravated assault, the accused was convicted of attempted aggravated assault because the complainant could not be proven to have contracted the virus after the accused had found out.

RELATED SECTIONS

s. 266

Assault

s. 267

Assault with a weapon or causing bodily harm

Consent

s. 752

Definition of primary designated offence

s. 752

Definition of serious personal injury offence