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

Aggravated assault is a straight indictable offence. Accordingly the accused will be able to elect to have their trial by provincial or Superior Court, and could potentially have their matter heard by a jury. Tactically, defence counsel must be mindful that the Crown will likely be able to easily demonstrate the injury with medical professionals, documentation or photographs, and thus the impact of the imagery on the jury can be significant. Absent issues of perpetrator identification, or a realistic defence pursuant to section 34, technical arguments tend to fall flat when pit against difficult facts. Objective foresight requires the trier of fact to consider whether a reasonable person ought to have foreseen the injury caused, and in this respect it is often a foreign experience to most members of the community to have contemplated using a weapon or applying such for that so extensive an injury could have been caused. In this vein, defence counsel must be cognizant of the factual underpinnings of their particular case and consider whether the matter is best heard on a more technical basis by judge alone. It is also not uncommon on aggravated assault charges to be unable tactically or practically to put the accused on the stand. Absent injuries to the accused, self-defence becomes a difficult set of parameters to navigate when the visuals militate against your client.

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

Q.

Is aggravated assault an offence of general or specific intent?

A.

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.

Q.

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

A.

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

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.
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.
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.
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.
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

CATEGORIES