Une agression armée qui a le potentiel de mettre la vie de la victime en danger ne se qualifie pas de facto comme un voies de fait grave si la conséquence prohibée ne se réalise pas

R. v. de Freitas, 1999 CanLII 14071 (MB CA)

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8                                 The Criminal Code defines assault (s. 265) and then creates three categories, simple assault (s. 266), intermediate assault[1] (s. 267) and aggravated assault (s. 268).  The maximum penalty for simple assault is five years’ imprisonment, that for intermediate assault 10 years and that for aggravated assault 14 years.

9                                 The category of simple assault covers all assaults that do not fall into one of the higher categories.  An intermediate assault is defined as one committed by a person who, in committing it, carries, uses or threatens to use a weapon or causes bodily harm while an aggravated assault is defined as one which wounds, maims, disfigures or endangers the life of the complainant.

10                             These graduated categories thus progress from the least serious to the most serious.  The least serious category covers those assaults with the least risk of harm to the victim.  No weapon is involved and no bodily harm is caused.  The intermediate category involves either a more serious manner of carrying out the offence (i.e. involving a weapon) or bodily harm falling short of wounding, maiming or disfiguring the victim.  Finally, we have the most serious category in which the victim is wounded, maimed, disfigured or his or her life endangered.

11                                   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.  This strongly suggests that, in adding endangerment to life, Parliament intended the phrase to refer to a consequence of an assault rather than a risk which arose from it.

12                             The use of a weapon in an assault will almost always create a risk of the victim being wounded, maimed or disfigured or his or her life endangered.  Yet the legislation does not place an assault with a weapon in the category of aggravated assault.  For this to happen, the risk must become reality.  The victim must actually be wounded, maimed or disfigured or his or her life endangered.  “Endangers the life of the complainant” is thus, in my view, intended to be as much a consequence of the assault as “wounds, maims or disfigures.”

13                             I do, however, agree with Moldaver J. (as he then was) in R. v. Melaragni (1992), 1992 CanLII 12779 (ON SC), 75 C.C.C. (3d) 546 (Ont. Ct. (Gen. Div.)), when he held that bodily harm was not a necessary prerequisite of endangerment to life.  He gave the following examples of assaults which endanger life without causing actual bodily harm (at p. 550):

For example, if D. and V. are standing on a 20^th-floor balcony and D. pushes V., causing V. to go over the railing, but V. miraculously holds on and is rescued before falling, can it be doubted that D.’s common assault endangered the life of V.?  In this example, D. has assaulted V. and the assault has endangered V.’s life even though V. suffered no bodily injury.  The same could be said if D. pushed V. into a busy intersection in the face of oncoming vehicular traffic.  Assuming that an alert motorist was able to avoid striking V., can it be doubted that V.’s life was endangered?

 

14                             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.