According to the Criminal Code of Canada, a person commits an assault when they apply force intentionally to another person, directly or indirectly, without their consent. But when that action “wounds, maims, disfigures or endangers the life of the complainant” the assailant should face the charge of aggravated assault, the Code states.

This is the most serious type of assault, laid in cases where a person’s life was not lost. A wound can be a broken bone or a break in the skin, while maiming or disfiguring refers to causing more than temporary impairment of a person’s figure or appearance, such as a facial scar. The endangerment of someone’s life means the person faced a real risk, even if no bodily harm was done.

To prove their case, the Crown prosecutor has to show there was an intentional application of force and the knowledge that it could result in bodily harm. They also have to demonstrate the injuries were not trivial or temporary, but that the damage instead will be long-lasting or that the person’s life was in danger.

The Crown must prove there was an intent (men’s rea) to cause bodily harm, but they do not need to prove there was an intent to maim, wound or disfigure. The SCC reinforced that in 2016 after a young offender was charged with punching another youth in the face. That assault resulted in the victim’s jaw being broken in two places, requiring immediate surgery, as well as metal plates that he will have to wear in his jaw all his life.

In finding the youth guilty of aggravated assault, the judgment noted, “the Accused had the requisite objective foresight of causing bodily harm to the Victim.  There is no requirement in law for the Crown to prove that the Accused had an intention to maim, wound or disfigure the Victim.”

 

What is a wound?

In 2019, the British Columbia Court of Appeal handed down a ruling determining how serious an injury must be before it rises to the level of a “wound” for the purposes of aggravated assault under the Code.

The case involved a man who punched another man repeatedly in the head, leaving him with two cuts, one on his forehead and one on the back of his head, both requiring five stitches. The assailant was charged with aggravated assault, but the trial judge found him guilty of the lesser charge of assault causing bodily harm, ruling the victim’s injuries did not amount to a wound.

The B.C. Court of Appeal disagreed, with the judgment detailing in great length the legislative history of the term “wound, both in the United Kingdom and in Canada. In replacing the assault causing bodily harm conviction with an aggravated assault conviction, the court noted the victim’s “injury rose to the level of serious bodily harm. A cut that requires five stitches or staples is a substantial interference with someone’s physical integrity.”

 

Spitting or coughing on someone is an assault

Spitting or coughing on someone is a form of assault the police and Crown take very seriously, especially during a pandemic. Here are a few examples showing how this crime is regarded.

In British Columbia, a man was charged with aggravated assault after he was accused of spitting at a police officer during an arrest for allegedly breaking and entering into an empty home. During the arrest, RCMP alleged he spat in the face of one of the officers. A police spokesperson noted “spitting on anyone is always a serious assault … but to do so in this current pandemic is particularly unacceptable.”

In Ontario, a man was charged with aggravated assault after allegedly spitting in the face of a police officer. According to this news story, the man was drinking a can of beer and sticking his head into people’s vehicles. When police arrived, he resisted arrest and spat directly into the face of an officer, resulting in a charge of aggravated assault.

Common sense should tell us that any type of spitting or coughing on someone is unacceptable, even more so during a pandemic. If you are charged with assault after such an incident, your defence counsel will have their work cut off for them to defend your actions.

 

Aggravated sexual assault

If a person wounds, maims, disfigures or endangers the life of the complainant during a sexual assault, they may be charged with aggravated sexual assault. And if a restricted or prohibited firearm is used, or if the act was for the benefit of a criminal organization, the penalties are clearly spelled out in this section of the Code.

• “(i) in the case of a first offence, five years, and
• (ii) in the case of a second or subsequent offence, seven years.”

In any other case where a firearm is used in the commission of the offence, the Code calls for a minimum punishment of imprisonment for a term of four years, up to imprisonment for life.

These cases illustrate how seriously the courts take aggravated sexual assault. In 1998, the Supreme Court ruled that exposing someone to HIV is sexual assault. That ruling was done in a case where a man was charged with aggravated assault for not telling two female sexual partners about his HIV-positive status.

The judgment notes, “ It must be remembered that what is being considered is a consensual sexual activity which would not constitute assault were it not for the effect of fraud. Obviously if the act of intercourse or other sexual activity was consensual it could not be an assault. It is only because the consent was obtained by fraud that it is vitiated. Aggravated assault is a very serious offence. Indeed, a conviction for any sexual assault has grave consequences. The gravity of those offences makes it essential that the conduct merit the consequences of conviction.”

Another case involved a Canadian Football League player who was charged with having unprotected sex with two women after he tested positive for HIV. At the time he was married to a woman in Alabama with whom he had two children.

According to court documents, following a positive HIV test in Canada he was asked the names of his sexual partners at that time.

“It is of note the appellant neglected to mention the name of one of the complainants, O.A., despite the fact that he was in a relationship with her at the time,” the judgment reads. “When asked at trial why he did not mention O.A.’s name, he said he ‘forgot.’”

Despite his apology to his teammates, his children, his wife and his lovers, he was sentenced to five-and-one-half years in prison.

Being charged with aggravated sexual assault is a serious crime, so have experienced legal counsel at your side if that happens.

 

What are the best defenses?

When defending someone accused of aggravated assault, I first look for evidence that indicates their actions were not intentional. I will also examine the methods used by the police during the investigation and see if any of their evidence can be challenged. The Canadian Charter of Rights and Freedoms sets out the rights of Canadians before and after an arrest, and if they were not followed by officers, that will aid your defence.

In certain circumstances, defendants can claim they were acting in self-defence and they did not mean to cause grievous harm to others. A person cannot be convicted of aggravated assault if their actions were taken to protect themselves, their property, or other people and their property.

As with any charge, the burden of proof remains high for the Crown, and experienced defence counsel can help you present your case in the best way possible.

The penalty you will pay

Because of the serious nature of this offence, aggravated assault is a strictly indictable offence with no conditional sentence available, and the Crown will seek a jail term upon conviction. While there is no minimum penalty, the maximum penalty is 14 years imprisonment.

Other penalties can include a fine, a combination of prison and probation or an intermittent sentence. A victim fine surcharge may also be given out by the court.

If you are convicted of aggravated assault you will be subject to a mandatory weapons prohibition order pursuant to s. 109 of the Criminal Code of Canada. There is also a mandatory weapon forfeiture order pursuant to s. 491.

If the Crown Attorney deems it appropriate, it can also bring an application to have you declared a dangerous offender. Aggravated assault is also a primary designated offence for a DNA data bank order under s. 487.051 of the Code.