A description of the offence of Assault Causing Bodily HarmAndrew Captan
Assault causing bodily harm is a criminal offence found under s. 267(b) of the Criminal Code of Canada. It is a “hybrid” criminal offence, meaning that the Crown can choose to proceed either by Summary Conviction or by Indictment. The maximum sentence is 10 years of jail if the Crown proceeds by Indictment, and 18 months in jail if the Crown elects by Summary Conviction. There are no minimum punishments associated with the offence. The lowest possible sentence one can receive for the offence is an Absolute Discharge.
Elements of the Offence
There are several factors or circumstances that the Crown Attorney must prove, beyond a reasonable doubt, in order for someone to be found guilty of an Assault Causing Bodily Harm. These factors are also known as elements of the offence. A list of these elements is as follows:
- That an Assault occurred (namely the intentional application of force without the other person’s consent);
- Bodily Harm was sustained by the victim, which the Criminal Code of Canada defines under s. 2 “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”;
- The accused “caused” that Bodily Harm;
- Bodily Harm was objectively foreseeable in the circumstances
If any of these factors is not proven beyond a reasonable doubt, then the accused would be entitled to an acquittal. It’s possible, however, the the accused be found guilty of the lesser and included offence of Assault, even if they are deemed not guilty of the Assault Causing Bodily Harm.
Note that the specific Bodily Harm at issue need not be reasonably foreseen, and only that Bodily Harm in general was foreseen.
EXAMPLES OF BODILY HARM
There is a wide range of harm that would meet the definition of Bodily Harm, as set out under s. 2 of the Code. Some examples of this as seen in the case law include:
- A broken nose;
- Significant swelling to one’s face;
- A concussion;
- A lost tooth;
- Cuts that require stitches to seal
POTENTIAL DEFENCES TO THE OFFENCE
There are different legal strategies one can employ to defend against an Assault Causing Bodily Harm charge, such as:
- The legal justification of Self-Defence
- Denying responsibility for any Assault at all, suggesting that the complainant is not being truthful