R v Chahal, 2024 ABCA 218
[26] As stated earlier, the trial judge referred to cases which set out that bodily harm is a low standard and can result from bruises or contusions as was found in this case. However, the requirement of “more than merely transient or trifling” adds a degree of seriousness to the injury in question. While bodily harm is a low bar or standard, there is still a bar under which bodily harm is not present. See Moquin at paragraph 28; R v Hilderman, 2005 ABQB 106 at para 11.
[27] In Dixon at paragraph 44, Esson JA set out definitions for “transient” and “trifling” from the Shorter Oxford English Dictionary, 3rd ed, vol II:
Transient 1. Passing by or away with time; not durable or permanent; temporary, transitory; esp. passing away quickly or soon, brief, momentary, fleeting.
…
Trifling 3. Of little moment or value; trumpery; insignificant, petty.
[28] He then referred to the injuries in that case which were bruises to the arm, head and a three‑inch laceration to the back of the head and that the injuries lasted for a month and found that such injuries could not be transient or trifling. Esson JA stated at paragraph 46:
The findings that “there is no evidence of any interference with the victim’s health or comfort” and that “an injury that lasts no longer than a month would fall within the definition of being transient and trifling” demonstrate, in my view, an absence of any reasonable regard for the ordinary meaning of the words…
[29] By the same token, labelling a red mark that lasted a couple of hours as “bodily harm” also demonstrates the absence of a reasonable regard for the ordinary meaning of the words “transient” and “trifling”.
[30] Case law interprets the wording of criminal statutes and the boundaries of definitions. In R v Jobidon, 1991 CanLII 77 (SCC), [1991] 2 SCR 714, 66 CCC (3d) 454, the issue was whether consent to a fist fight continued once bodily harm was intended. In concluding that it did not, the Supreme Court commented on caselaw’s usefulness in determining principles and definitions and stated at paragraph 47:
All criminal offences in Canada are now defined in the Code (s. 9). But that does not mean the common law no longer illuminates these definitions nor gives content to the various principles of criminal responsibility those definitions draw from.
[31] A significant amount of case law refers to the types, number, and seriousness of certain injuries and whether such injuries are more than transient or trifling and whether they constitute bodily harm. However, there are no cases which conclude that an injury comparable to the one in this case would constitute bodily harm. The cases referred to by the trial judge in his reasons state that bodily harm is a low standard and that bruising could be bodily harm but none of those cases involved an injury as minimal as in this case.
[32] The extent of the bruising is an important consideration in determining whether it is transient or trifling. Bruising can be serious when it involves serious discolouration and lasts for days, weeks or months. In addition, swelling often accompanies bruising and makes it more serious. It can also be serious where there is more than one bruise as set out in numerous cases: for example, R v Garrett, 1995 ABCA 281 at paragraph 10. However, the case law differentiates between the seriousness of a bruise and how long the bruise lasts in determining whether it is transient or trifling. Some bruising or contusions can be transient or trifling.
[33] In R v Kalinics, 2021 QCCQ 11039, the trial court did not find that bodily harm had been proven even though the evidence was that the complainant received numerous bruises to the leg, arm, face and neck. The court stated at paragraph 162:
In principle, it is therefore clear that bruising alone may legally satisfy the harm requirement provided in s. 267(b) C.C. That being said, our Court of Appeal did not go so far as to conclude that all bruises necessarily meet the admittedly low threshold. [Emphasis in original]
[34] In Hilderman, Justice Martin (as he then was) discussed the seriousness of different assault charges in the Criminal Code and stated at paragraph 11:
The assault offences in the Criminal Code are aligned hierarchically according to the seriousness of the injury. The most basic and simple assault contemplates only transient or trifling injuries, which will include most bruises.
[35] In Wells, the respondent was found not guilty of assault causing bodily harm. The trial judge referred to the injuries testified to by the doctor and nurse which included “contusions, abrasions and a sore chest”, and not simply one contusion as in this case. The Court of Appeal described those injuries as “at the upper end of what is merely transient and trifling” but found the trial judge did not err in law in concluding no bodily harm occurred (paragraph 3). In R v T(JG), 1999 ABQB 981, aff’d 2003 ABCA 33, the court held that minor bruising that lasted one to one and a half weeks did not constitute bodily harm.
[40] When determining whether assault causing bodily harm has been proven, it is important not to conflate the mens rea requirement of objective foreseeability of bodily harm, with the actus reus which only requires that an assault has occurred resulting in bodily harm. See, R v Dewey, 1999 ABCA 5 at paragraphs 11-12. Determining mens rea will contemplate the manner of the assault, while a determination of the actus reus will deal with the consequences of the assault.
[41] The Criminal Code creates graduated categories of assault starting with the least serious (assault simpliciter) to intermediate (assault causing bodily harm) to the most serious (aggravated assault). Once the assault is proven, the consequence of the assault determines which level of assault has been proven. This Court, in reference to the predecessor Criminal Code, RSC 1970, c C-34, commented that then section 245(1) created the offence of common assault, and section 245(2), an assault that causes bodily harm to any person, “merely deals with the consequences of the assault”: R v Janvier, 1979 ALTASCAD 27 (CanLII), 1979 CarswellAlta 166, 11 CR (3d) 399 at paragraph 3.
[42] In R v De Freitas, 1999 CanLII 14071 (MB CA), 1999 CarswellMan 66, 132 CCC (3d) 333, the Manitoba Court of Appeal dealt with the offence of aggravated assault pursuant to section 268 of the Criminal Code and stated at paragraphs 11, 14:
What strikes me about the offence of aggravated assault is that it is defined not by reference to the manner in which it is carried out, but rather in reference to a consequence. No matter how the offence is carried out, it becomes one of aggravated assault if the victim is wounded, maimed or disfigured. . . .
In my opinion, the assaults in those examples qualify as aggravated assaults because endangerment to life is the consequence of the completed assault. Most assaults with a weapon have such potential at their inception, but do not qualify as an aggravated assault because the potential is unrealized when the assault ends.
[43] The Manitoba Court of Appeal noted in R v Nambiennare, 2013 MBCA 42 at paragraph 6:
Within each offence there is a range of injuries, and although it may sometimes be difficult to discern when an assault falls at the high end of one category and not at the low end of the next, more serious category, judicial experience teaches us that trying to draw predictable and definite rules for each category would probably be unwise and unworkable.
The manner of the assault may be relevant in some cases where psychological damage is present, but where the only allegation of bodily harm is physical injury, the way the assault occurred will not usurp clear evidence of the injury by medical records and the description of the injury by the complainant. It is the consequence of the assault which distinguishes between assault simpliciter and assault causing bodily harm.
[44] What remains is to evaluate the nature of the injury in light of the meaning of “transient” and “trifling”.
[48] We agree that the case law does not set out a bright-line rule as to what is more than transient or trifling in order to constitute bodily harm. However, if a bruise described as simply a red mark and no longer present or causing pain within two hours is an injury that is not transient or trifling, it is difficult to imagine what hurt or injury would constitute being transient or trifling. The inclusion of the words “transient or trifling” in the definition of bodily harm must have intended the injury to have a certain seriousness that allows for the higher sanction of a conviction for assault causing bodily harm as opposed to assault simpliciter. In our view, to equate the injury in this case to being more than transient or trifling would lower the bar for bodily harm to a level which would not differentiate assault simpliciter from assault causing bodily harm. If a bruise lasting no longer than two hours is not a “transient or trifling” hurt or injury, then little if anything remains that would exceed this threshold.
Aucun commentaire:
Publier un commentaire