section 2

INTRODUCTION AND BRIEF DESCRIPTION

The Criminal Code sets out the definition of the term weapon at section 2. Notably, the Code does not require that the weapon be designed for use as a weapon, such as a knife or brass knuckles, but rather includes anything that is used to cause injury. This could include, for example, a set of keys or remote-control thrown at an individual.

SECTION WORDING

2. In this Act, weapon means any thing used, designed to be used or intended for use (a) in causing death or injury to any person, or (b) for the purpose of threatening or intimidating any person and, without restricting the generality of the foregoing, includes a firearm;

EXPLANATION

The term weapon appears over two-hundred times in the Criminal Code. Many offences include an augmented form, which adds the additional element of a weapon. For example section 266 details assault simpliciter, whereas section 267(a) deals with assault with a weapon and includes the availability of higher penalties. Similarly, section 271 deals with sexual assault simpliciter, whereas section 272(1) deals with sexual assault with a weapon and opens the gate to greater punishment. While section 2 provides the general definition of the term weapon, there are additional sections which modify or specify the term depending on the context. For example, section 270.1 criminalizes disarming a peace officer, and expands the definition of weapon to include items that "...temporarily incapacitate a person" With regard to section 2, the most important consideration is not what the object was designed for, but rather what the items was used for. Thus, a knife used to cut steak would not constitute a weapon, whereas the exact same item used while uttering a threat would constitute a weapon. Similarly, a coffee consumed each day would not constitute a weapon, whereas that same coffee, launched at a person to cause injury, would constitute a weapon pursuant to section 2.

COMMENTARY

There are numerous sections in the Code that involve the use of a weapon, including section 267(a), 272(1), 88, 89, 90, 91, 92, 99. It is also itemized at section 34(2) as one of the factors the Court must address when contemplating whether self-defence is available as a defence to a charge. Additionally, the use of a weapon is a consideration under section 742.1 in determining whether a conditional jail sentence is available to an accused. As a result, avoiding a conviction to a weapons offence is often a highly tactical consideration during plea negotiations. Moreover, Gardiner hearings are not atypical on this augmented element of a crime, where an accused is prepared to admit to an assault, but not use of a weapon as an element of the facts. The use of a weapon as an aggravating feature can significantly the sentence to be imposed.

STRATEGY

The definition of the term weapon often arises when an individual is charged with possession of a weapon for a dangerous purpose pursuant to section 88(1) of the Criminal Code. That section requires that the object be carried "...for a purpose dangerous to the public peace or for the purpose of committing an offence." Often, a repeat offender is arrested on an unrelated crime and searched, yielding an item that could constitute a weapon depending on the circumstances. For example, an individual of no fixed address found in possession of a kitchen knife. In such cases, the definition of section 2, in conjuction with weather the item was possess for a dangerous purpose becomes the focus of the trial. The factual circumstances of the possession will thus become the focus. Was the item brandished? Is it an otherwise useful item such as a screwdriver or a kitchen knife? What were the circumstances in which it was obtained or possessed? Are there legitimate reasons to be in possession of the item at that time, on that day? Certainly, if the item was brandished or wielded, then these questions are moot. But it is not unusual for an accused to be arrested on a theft, and then be subdued by a loss prevention officer, who then discovers that the person was in possession of a utility knife. The question then becomes whether the knife was possess for the purpose - potentially - of assisting in the theft or in the resisting of the arrest? Or whether it's discovery is merely incidental and unrelated to the substantive crimes.

QUESTIONS AND ANSWERS

Q.

Can anything be a weapon?

A.

The definition as drafted encompasses any object that is used as a weapon. Thus, if a person used a rolled up newspaper to cause injury to another person, then the newspaper would constitute a weapon under this definition. It is not uncommon in domestic assault cases for the perpetrator to grab the nearest object and use it as a projectile. This often occurs during arguments over the car keys or television remote. The broad definition is designed to encapsulate all manners of object used for the purpose of causing injury. Thus, the answer is yes - theoretically any object could constitute a weapon if it is wielded as such.

Q.

Is a weapon the same as a firearm?

A.

Firearms have specific definitions in the Criminal Code, specifically at section 2 a firearm is defined as: "means a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm" Thus, every firearm constitutes a weapon, but not every weapon is a firearm. The term weapon is broad. The term firearm is more specific.

RELATED CASES

A case from the Ontario Court of Appeal which considers whether an air gun meets the definition of weapon as per section 2 of the Criminal Code. The Court juxtaposes the definition of the term firearm with the term weapon and concludes: "Barrelled objects that meet the definition of firearm in s. 2 need not also meet the definition in para. (a) or (b) of weapon to be deemed to be firearms and hence weapons for the various weapons offences in the Code, such as the offences charged against the respondent in this case."
The Supreme Court of Canada considers the term weapon in the context of a section 272 charge of sexual assault with a weapon. In this case, the object used on the victim was a dildo - see paragraph 17: "When an accused knowingly or recklessly applies force and sexually assaults a complainant, if he uses an object in doing so, and if the object contributes to the harm caused to the victim by the assault, the accused cannot escape a conviction for sexual assault with a weapon by claiming that his intention was to sexually stimulate the person that he was otherwise assaulting."

RELATED LINKS

A link to regulations detailing Canada's treatment of weapons and weapons components such as cartridge magazines and ammunition.

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