La Cour d'appel de l'Alberta confirme le faible seuil requis pour établir des « lésions corporelles », statuant que l'inconfort de la victime peut être directement déduit de ses blessures visibles sans nécessiter de preuve médicale explicite quant à leur durée ou à la douleur

R v Bulldog, 2015 ABCA 251

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[42]           The appellants say that the trial judge erred in law by finding that Keepness’s injuries constitute bodily harm. Drawing from section 2 of the Criminal Code, they stress that “bodily harm” requires (1) hurt or injury; (2) that interferes with health or causes discomfort; and (3) is not “transient or trifling” (meaning, they say, that it is not of a very short duration or of a very minor degree). The main argument here is that the degree and duration of Keepness’s injuries were insufficient to qualify as bodily harm, since the trial judge made no finding about the duration of his injuries, and the injuries were very minor in degree. The appellants also argue that Keepness’s injuries cannot qualify without a finding (or evidence) that they interfered with his health or caused him discomfort.

[43]           The Crown’s response to the appellant’s main argument is that Keepness’s injuries (multiple abrasions, cuts, lacerations, swelling to his cheek), which caused bleeding from the head and neck and necessitated a trip to hospital, the application of Steri-Strips and a tetanus injection, are serious enough to qualify. The Crown also says that there was an implicit durational dimension to the trial judge’s findings (since Keepness’s injuries lasted at least from the time of his attack to his treatment in hospital). No direct response to the appellants’ argument regarding health/discomfort is offered, and we assume that the Crown’s view is that Keepness’s discomfort would have been so obvious as not to require an explicit finding by the trial judge.

[44]           Section 2’s definition of “bodily harm” states a low threshold: R v Dorscheid, 1994 ABCA 18 at para 11, [1994] AJ No 56 (CA). It means something more than “a very short time period and an injury of very minor degree which results in a very minor degree of distress”: R v Dixon (1988), 1988 CanLII 2824 (BC CA), 42 CCC (3d) 318 at 332, [1988] 5 WWR 577 (Esson JA, as he then was, concurring). Not surprisingly, then, indisputably minor injuries have been found to constitute “bodily harm”: R v Rabieifar, [2003] OJ No 3833 (QL) (CA) (scratches and abrasions of less than one inch on the complainant’s body, and some bruising and swelling on her face, thigh and hand); R v CK, 2001 BCCA 379 at para 3, [2001] BCJ No 1119 (QL) (small bruise on the complainant’s right calf, a small anal tear, and a deviated septum that resulted in some bruising and swelling, all of which was said by a physician to be “not serious and … expected to resolve itself within a few days”); R v Moquin, 2010 MBCA 22 at paras 32-33, 251 Man R (2d) 160 (several bruises lasting 11 days, a sore hand and a sore throat); and Dorscheid (scrapes, lacerations and bruises).

[45]           These injuries are variously similar to those sustained by Keepness. The appellants, however, point out that the trial judge had no evidence before her regarding the duration of those injuries. It is not necessary, however, for the Crown to call physicians to testify to an injury’s less-than-fleeting effects. In Dixon (at 332), Esson JA was content to observe that “[f]rom the time of the assault at least until the medical treatment was completed, it is clear that the victim must have been deprived of any sense of comfort which she might have had before being assaulted.” That observation is equally apposite here. Nor is it necessary for the Crown to have adduced direct evidence of pain or discomfort from Keepness or from a treating practitioner. It is hardly blazing new territory for a court to infer discomfort from such obvious considerations as the victim’s injuries. Again, in Dixon, Esson JA said (at 332, emphasis added) that “it is clear that the victim must have been deprived of any sense of comfort which she might have had before being assaulted”. Similarly, this Court said in Dorscheid (at para 11, emphasis added) that “[s]ignificant bruising will obviously cause discomfort ….”

[46]           In short, we see no error in the trial judge’s handling of the question of bodily harm. Keepness was attacked and beaten by three fellow inmates in an exercise yard. His sustained visible wounds clearly constitute “bodily harm”, which required treatment at the hospital and post-treatment monitoring and would also obviously have caused discomfort. It would have defied good sense for the trial judge to have concluded otherwise.