Canadian Criminal Law/Offences/Assault Causing Bodily Harm

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Assault Causing Bodily Harm
s. 267(b) of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Maximum 18 months jail or $5,000 fine
Indictable Dispositions
Avail. Disp. same as summary
Maximum 10 years jail
References
Offence Elements
Sentence Principles
Sentence Digests
Comments
DNA primary designated offence
DO/LTO primary designated offence

Legislation[edit]

267. Every one who, in committing an assault,

(a) carries, uses or threatens to use a weapon or an imitation thereof, or
(b) causes bodily harm to the complainant,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

CCC

Proof of Offence[edit]

Including the essential elements of time and date of incident, jurisdiction, and identity, the crown should prove:

  1. the manner in which the assault occurred (open hand, fist, foot or weapon) / number of strikes
  2. the complainant had not consented to the assault (s. 265(3) and (4))
  3. the complainant had not assaulted, threatened or otherwise provoked the accused
  4. the accused used force intentionally
  5. the injuries caused by the assault / nature of injuries / pictures
  6. seriousness of injuries:
    1. a hurt or injury interfered with the victim's health or comfort and whether it was "more than merely transient or trifling in nature"
    2. treatment / duration of injuries
  7. degree of sobriety of the parties

Interpretation[edit]

For details on the proof of common assault, see Canadian Criminal Law/Offences/Common Assault.

An intention to intimidate or frighten is not sufficient to establish an intention to cause serious bodily harm.[1]

Sufficient intent is made out where the accused was engaged in a course of conduct that was objectively dangerous and bodily harm results.[2]

  1. See also, R. v. C.D.; R. v. C.D.K., 2005 SCC 78
    R. v. Moquin, 2010 MBCA 22 at paras. 22-28
  2. See R. v. DeSousa (1992), 1992 CanLII 80, [1992] 2 SCR 944
    R. v. Van De Wiel (1997), 158 N.S.R.(2d) 368, 1997 CanLII 9923 (NSSC) at para 20

Bodily Harm[edit]

Bodily harm is defined in section 2 of the Criminal Code as "any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature".

Bodily harm could include psychological injury to the victim.[1]

Once bodily harm was found, the wording of s. 2 only requires interference of "health" or comfort of the person.[2]

This definition is similar (if it is not word for word) to the English common law definition of actual bodily harm stated.[3]

"Transient" has been interpreted as "Passing by or away with time; not durable or permanent; temporary, transitory"[4]

"Trifling" has been interpreted as "Of little moment or value; trumpery; insignificant, petty"[5]

It is wrong to conclude that merely because the injury heals in less than a week would not be bodily harm as serious life-threatening injuries can be of short duration.[6]

The court should look at the overall effect of the injuries, rather than the individuals injuries that may be trifling in isolation.[7]

It is not necessary to call medical evidence to prove bodily harm.[8]

Specific examples of bodily harm:[9]

  • fracture of the nasal bones [10]
  • scrapes, lacerations and bruises, especially around the eye and a large amount of hair pulled out by the roots[11]
  • superficial injuries, consisting primarily of bruising and abrasions[12]
  • "a number of bruises to the neck and arms, a number of lacerations to the face, chest, shoulder and wrist that which cleared up within a week, difficulty speaking for three or four days as a result of choking and a scar on her forearm from a laceration"[13]
  • a sore neck that lasted for approximately one month[14]
  1. R. v. McCraw (1991), 66 C.C.C.(3d) 517 (SCC)
  2. R. v. Dixon (1988), 42 C.C.C.(3d) 318 (C.A.)
  3. R v. Donovan [1934] 2 KB 498 (also 25 Cr. App. Rep.1 CCA) at page 509 and R v. Chan-Fook [1994] 2 All ER 552 at 557D where the reference to transient or trifling injuries is taken as applying to actual bodily harm rather than bodily harm
  4. R. v. Dixon (1988), 42 C.C.C.(3d) 318 (C.A.) at p. 331
  5. R. v. Dixon (1988), 42 C.C.C.(3d) 318 (C.A.) at p. 331
  6. R. v. Garrett (1995), 169 A.R. 394 (C.A.)
  7. R v Garrett
  8. R. v. Giroux, [1995] A.J. No. 900 (C.A.)
  9. See R. v. Moquin, 2010 MBCA 22
  10. R. v. Papalia, 2012 BCSC 245 at 135
  11. R. v. Dorscheid, [1994] A.J. No. 56 (C.A.)
  12. R. v. Rabieifar (A.), [2003] O.A.C. Uned. 386; [2003] O.J. No. 3833 (C.A.)
  13. R v Moquin
  14. R. v. Giroux, [1995] A.J. No. 900 (C.A.)

Causing[edit]

See also: Canadian Criminal Law/Causation

For an accused to be found to have caused injury from violence the court must be satisfied that the act was a "contributing cause...outside the de minimis range".[1] This has also been stated by concluding that the action must be a "contributing" cause and not just a "minimal" or "insignificant" cause.[2]

There is variation between jurisdictions on whether the crown must prove intention to cause harm. There is a line of cases that conclude that the Crown must prove that the harm was an "objectively foreseeable consequence of the assault".[3] There is also a line of cases that conclude that merely the intent to apply force is sufficient.[4]

The shooting of a gun into the air creates an objective foreseeability that a person will be hit by the falling bullets and suffer bodily harm.[5]

  1. Smithers v. R., [1978] 1 S.C.R. 506 p.89
  2. R. v. Pinske (1988), 30 B.C.L.R. (2d) 114 aff'd [1989] 2 S.C.R. 979
  3. R. v. Palombi, 2007 ONCA 486
    R. v. Dewey (1998) 132 C.C.C. (3d) 348 (Sask. C.A.)
    R. v. Nurse (1993), 83 C.C.C. (3d) 546 (Ont. C.A.)
    See also: R. v. Cador, 2010 ABCA 232
  4. R. v. Swenson (1994), 91 C.C.C. (3d) 541 (Sask. C.A.), 1994 CanLII 4683 (SK CA)
    R. v. Brooks (1988), 41 C.C.C. (3d) 157 (BCCA), 1988 CanLII 3018 (BC CA)
    R. v. Munroe, (1978) 41 C.C.C. (2d) 193 (NSCA)
  5. R. v. Nurse, (1993) 83 CCC (3d) 546 (Ont. C.A.)

Traditional Defences[edit]

See Also[edit]