De la prévisibilité des lésions corporelles à l'usage d'un objet pour blesser : rappel des éléments constitutifs des voies de fait graves et de la définition d'une arme

R. v. Walia, 2018 ONCA 197

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[7]         We accept this submission. As we have said, there was no dispute at trial that the appellant hit her sister-in-law in the face with a glass and that the blow wounded her sister-in-law. The contested issue was whether the blow was reflexive or intentional.

[8]          To prove the appellant guilty of aggravated assault, the Crown had to prove the following elements beyond a reasonable doubt:

•        the appellant intentionally applied force to her sister-in-law;

•        her sister-in-law did not consent to the application of force; 

•        the appellant knew her sister-in-law did not consent to the application of force;

•        the force applied by the appellant wounded her sister-in-law; and

•        a risk of bodily harm was objectively foreseeable in the circumstances.

[9]          To prove the appellant guilty of assault with a weapon, the Crown had to prove the following elements beyond a reasonable doubt:

•        the appellant intentionally applied force to her sister-in-law;

•        her sister-in-law did not consent to the application of force; 

•        the appellant knew her sister-in-law did not consent to the application of force; and

•        in applying force to her sister-in-law, the appellant used a weapon.

[10]      Weapon is defined in s. 2 of the Criminal Code as:

any thing used, designed to be used or intended for use

a)   in causing death or injury to any person, or

b)   for the purpose of threatening or intimidating any person

[11]      In the circumstances of this case, to prove the final element of assault with a weapon, the Crown had to prove only that the appellant used the glass to injure her sister-in-law and that injury was reasonably foreseeable in the circumstances: R. v. Lamy 2002 SCC 25, 1 S.C.R 868, at paras. 11-16.

[12]      Given the evidence and issues at trial, a properly instructed jury could not render a verdict of guilty to the aggravated assault charge but not guilty to the assault with a weapon charge. It was conceded that the appellant struck her sister-in-law with a glass thereby wounding her. The wound was obviously an injury. Injury was reasonably foreseeable based from the appellant striking her sister-in-law in the face with a glass. The only live issue was whether the strike was reflexive or intentional.