QUICK TAKEAWAY
Serious Assault (Youth): Assault charges are covered under Part VIII of Offences Against the Person and Reputation in the Criminal Code of Canada. If you are a youth between the age of 12 and 18 and charged with simple assault, you will likely avoid jail time depending on the circumstances and your prior record. That’s because simple assault can include spitting on someone or a shove or that doesn’t cause an injury. However, if you are convicted of a serious assault – such as assault causing bodily harm, assault with a weapon, or aggravated assault – you could be sentenced as an adult and face up to 14 years in prison. Under the Youth Criminal Justice Act (YCJA) “more serious offences should result in more severe consequences,” which include jail terms.
Table of Contents:
What is Assault?
The Criminal Code deals with the charge of assault starting at s.265 states that you can face prosecution if you intentionally apply force directly or indirectly on a victim without their consent. No physical contact is necessary to be charged. If you threaten "either by act or gesture" to apply force to another person or if you confront someone while openly wearing or carrying a weapon or imitation weapon, you could find yourself in court.
Types of Serious Assaults
Assault causing bodily harm
If a person has suffered injuries ranging from a few scratches to broken bones because of something you have done, you can face a youth court trial for assault causing bodily harm.
The Code defines "bodily harm" as any hurt or injury to a person that interferes with the health or comfort of the person and is considered something insignificant or petty, while transient means something that will pass with time.
Assault with a weapon
This charge can be laid if a weapon is used in an assault. A weapon can be anything from a fork to a gun. It depends on the circumstances. If you hit someone with a snowball, you could face charges. Both assault with a weapon and assault causing bodily harm is covered under s.267 of the Code.
Aggravated assault
If someone is wounded, maimed, disfigured, or their life is endangered, and you are responsible, you could be charged with aggravated assault. It is the most serious form of assault and is found in s.268 of the Criminal Code. What sets aggravated assault apart from other types of assault is the severity of the injuries inflicted.
It is important to remember that while endangerment to life must involve an actual risk, it does not necessarily have to result in actual bodily harm.
What is Needed to Convict
To win a conviction, the Crown prosecutorLawyers who prosecutes charges on behalf of the Crown must prove beyond a reasonable doubtThe standard that must be exceeded to find someone guilty that:
- you applied force to someone;
- the victim did not consent to that force; and
- the force was applied intentionally.
The Crown must establish an intent, or mens reaHaving criminal intent, knowledge, or recklessness, to cause bodily harm. It is not necessary to prove there was an intent to maim, wound or disfigure.
Police have the option to use extrajudicial measuresProceedings outside the formal court process when a youth has been charged with any offence. This involves handling the case outside the formal court process to rehabilitate the offender. However, if your case is not resolved through extrajudicial measures, it will be dealt with in youth court.
Your defence attorney might submit evidence to show your actions were not intentional or that you were protecting yourself, your property or others at the time. There could also be reasons why your arrest was not lawful under the Canadian Charter of Rights and Freedoms.
Treated as a Summary or Indictable Offence
If you are charged with assault causing bodily harm or assault with a weapon, the Crown can proceed as an indictable offenceIndictable offences are more-serious criminal offences, and you would face imprisonment. The prosecutor could also deal with the offence as a summary convictionUsed for lesser offences with less severe penalties.
The Crown will consider such factors as the seriousness of the incident and your prior criminal record when deciding how to proceed.
Aggravated assault is treated as an indictable offence only.
Penalties for Serious Assault Offences
The Department of Justice states the "youth criminal justice system must be separate from the adult system and based on the principle that youth are presumed to be less morally blameworthy than adults."
In deciding on punishment for those between the ages of 12 and 18, the youth justice court considers:
- the degree of participation by the young person in the commission of the offence;
- the harm done to victims and whether it was intentional or reasonably foreseeable;
- any reparation made by the young person to the victim or the community;
- the time spent in detention by the young person as a result of the offence;
- the previous findings of guilt of the young person; and
- any other aggravating and mitigating circumstances related to the young person or the offence.
Under the YCJA, incarceration is intended primarily for violent and serious repeat offenders. The maximum length of youth sentences ranges from two to 10 years.
Judges are also permitted to impose an adult sentence for serious offences where the offender was 14 years of age or older when the crime was committed. However, the Act allows provinces to raise the age at which this obligation applies to 15 or 16.
If an adult sentence is imposed, Criminal Code penalties for adult offenders are handed down. Those sentenced as an adult remain incarcerated in a youth facility until they are 18 and then transferred to an adult prison.
An adult faces a maximum penalty of 18 months in jail if convicted of the summary offence of assault causing bodily harm or assault with a weapon. If those charges proceed by indictment, the maximum penalty is a prison term of 10 years.
Aggravated assault results in a maximum adult prison sentence of 14 years.
Those convicted of aggravated assault are subject to a mandatory weapons prohibition order pursuant to s.109 of the Code and a mandatory weapon forfeiture order pursuant to s.491.
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Smith Hutchison Law Corporation
James I. Heller
Steele Law Corporation
Stevenson Luchies & Legh
Marshall & Massey, Lawyers
Catherine Tyhurst
Glossary of Legal Terms
Crown prosecutor
Lawyers who act for the federal, provincial and territorial governments and prosecute people accused of crimes on behalf of the Crown.
Extrajudicial measures
Proceedings outside the formal court process. Examples include police warnings, referrals to community programs and Crown cautions. Extrajudicial measures are seen as an effective response to less serious youth crime.
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
Mens rea
Mens rea refers to having criminal intent, knowledge, or recklessness since the person is aware of their misconduct. The literal translation from Latin is "guilty mind." The Crown needs to show that the accused had mens rea to win a conviction.
Reasonable doubt
The Supreme Court of Canada has said that reasonable doubt “falls much closer to absolute certainty than to proof on a balance of probabilities” and “that something less than absolute certainty is required, and that something more than probable guilt is required."
Summary conviction
Summary convictions are used for lesser offences with penalties, fines and short jail time. They reflect the majority of offences as defined in the Code.
