What is assault causing bodily harm?

Police charge people with assault causing bodily harm when an attack on another person causes injury that will pass in a short time. There may be bruises and some feelings of anxiety, but the victim will fully recover.

The Criminal Code defines bodily harm 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; (lésions corporelles).”

“Transient” means that the injury will pass with time, without permanent damage or disfigurement, while “trifling” is interpreted by the courts to mean insignificant or petty. Keep in mind that it is not necessary for victims to call medical evidence to prove bodily harm.

I have defended many clients facing this charge. In one case a man was angry with a work colleague about remarks made about his wife. My client confronted the coworker at his home and they fought, with the man hitting his head against a brick wall in the fray. His injury was minor, resulting in the police charging my client with assault causing bodily harm

I was able to convince the court to give my client a discharge after he agreed to take part in counselling and anger management courses. He also told the court this sort of incident would never happen again and that he would make every effort to be an upstanding member of the community.

The definition of bodily harm

In 2010, the Manitoba Court of Appeal released a decision distinguishing between the crime of “assault” (s. 265 of the Code) and the crime of “assault causing bodily harm” (s. 267b).

According to court documents, the accused and the complainant were in a “classic abusive domestic relationship.” Incidents detailed in the judgment include:

  • pulling her hair so hard as to pull some out;
  • grabbing the complainant by the throat and choking her so it made it difficult to swallow for a few days; and
  • squeezing her hand so hard as to cause soreness and an inability to bend it for a week or so.

The trial judge held that these physical injuries did not amount to “bodily harm” and accordingly convicted the accused of common assault.

In upgrading the conviction to “assault causing bodily harm,” the appeal court cited a 1988 appeal court decision in British Colombia that stated that “transient, trifling and comfort are all words in common usage … those words import a very short period of time and an injury of very minor degree which results in a very minor degree of distress … there is no necessary connection at all between the duration of the injury and the question whether it is trifling – a life-threatening injury is often resolved in a short time. Transient does relate to time but, in this context, it is simply insupportable to describe as transient an injury that “lasts no longer than a month.”

The court provided these examples of injuries found by appeal courts that constitute bodily harm:

  • scrapes, lacerations and bruises, especially around the eye and a large amount of hair which had been pulled out by the roots;
  • superficial injuries, consisting primarily of bruising and abrasions;
  • a number of bruises to the neck and arms, a number of lacerations to the face, chest, shoulder and wrist which cleared up within a week;
  • difficulty speaking for three or four days as a result of choking; and
  • a sore neck that lasted for approximately one month.

Bodily harm can be psychological

In reversing the decision of the trial judge, the Manitoba appeal court ruled that “bodily harm” does not require functional impairment. The decision cited a unanimous 1991 Supreme Court decision that stated bodily harm also includes “any hurt or injury, physical or psychological, that interfered with the physical or psychological integrity, health or well-being of a complainant …  the term “bodily harm” referred to in s. 267 is defined as “any hurt or injury”.  Those words are clearly broad enough to include psychological harm … There can be no doubt that psychological harm may often be more pervasive and permanent in its effect than any physical harm.”

Defining serious bodily harm

The 1991 Supreme Court decision referenced above dealt with a man charged with three counts of threatening to cause serious bodily harm, contrary to s. 264.1(1)(a) of the Code. According to court documents, he had written anonymous letters to three football cheerleaders graphically detailing various sexual acts which he wished to perform upon them and concluded each with a threat that he would have sexual intercourse with them “even if I have to rape you.”

At trial, the three testified the letters frightened them so much that they no longer felt safe when they were alone. The trial judge found the threat of rape did not constitute a threat to cause serious bodily harm and acquitted the accused.

The appeal court reversed that judgment, noting, “these young women were forced to live with the threat of being sexually assaulted and to carry out their activities with the knowledge that they were being stalked by the appellant. No reasonable person looking at the letters could come to any other conclusion than that they constituted a threat to cause serious bodily harm.

“This is the very type of threat that s. 264.1(1)(a) was designed to combat,” the judgment read. “The evidence of the complainants coupled with a review of the words of the letter would inevitably lead to the conclusion that the accused had knowingly uttered a threat to cause the complainants serious bodily harm.”

Proof needed to support the charge

Along with the essential elements of time and date of incident, jurisdiction, and identity, the Crown must prove the following to convict someone of assault causing bodily harm:

  • The manner in which the assault occurred (Was it a fist fight? Were weapons used?).
  • The complainant had not assaulted, threatened or otherwise provoked the accused.
  • The accused used force intentionally.
  • The extent of the injuries caused by the assault, usually supported by photographic evidence.
  • The degree of sobriety of the parties.

Examples of people facing this charge

A trio of news stories below gives a snapshot of some situations where Canadian police have laid assault causing bodily harm charges.

In Guelph, Ont., a 23-year-old man was arrested after going on a rampage. According to a news report, the man approached an older man and took his cane before striking him twice with it. He then threatened a woman with the cane and slapped her, before going back to the elderly man and punching him. He then grabbed another man from behind and slammed his head against the asphalt, leaving a large laceration on his head.

In St. Catharines, Ont., an American resident was charged with assault causing bodily harm stemming from his actions during an incident at Brock University. According to this story, the man was staging a one-person demonstration at the university in support of U.S. President Donald Trump. He shouted out support for Trump through a megaphone while holding a large sign that read, "Trump is right: F--k China. F--k Mexico. Save Our Jobs" near the international students’ centre.

He attracted a crowd of angry students, with one grabbing the sign. The man responded by hitting the student in the face, knocking him down, followed by four more punches and a kick to the head.

In convicting the man of assault causing bodily harm, the judge noted, “General deterrence and denunciation must be one of the prime motivators in your sentencing. You aren't being punished for protesting. You are being punished for causing bodily harm … this was a significant event for the victim, who still suffers from anxiety and is still going to the dentist because of this.”

In Charlottetown, a 27-year-old man was convicted of assault causing bodily harm after an assault on a 79-year-old cancer patient was caught on video. According to this story, the two men were involved in a collision. Video shows the assailant opening the older man’s car door and repeatedly punching him. The victim, who had thyroid cancer at the time and was 14 days into 30 days of radiation treatments, suffered injuries including a sore neck, a black and blue ear and bruising on his legs caused when the assailant shut the car door on them, the story notes. The assailant, who had addiction issues, was sentenced to 10 years in jail, the maximum sentence for assault causing bodily harm

Why you need a lawyer

When a client retains me to defend them against a charge of assault causing bodily harm, I sit down with that person and get all the details about what happened. Some people may have had reasonable grounds to believe their life or personal security was at risk, allowing us to argue the actions were in self-defence. In other cases, the contact may have been accidental or intentional. In all circumstances, it is the Crown’s duty to prove, beyond a reasonable doubt,  that the accused intentionally applied force.

Someone convicted of this crime could be spending the next decade behind bars, so don’t take that chance. Contact me for a free consultation so we can start planning your best defence.

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