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Assault Causing Bodily Harm

The Charge

Section 2 of the Criminal Code defines bodily harm as “any hurt or injury to a person that interferes with the health or comfort of a person that is more than merely transitory or trifling in nature.” Effectively, any assault that causes more than a “very minor degree of distress” may result in a conviction for Assault Causing Bodily Harm. Assault Causing Bodily Harm is a hybrid offence meaning Crown counsel has the option of proceeding by indictment, where the maximum sentence is 10 years in jail. If the Crown chooses to proceed summarily, the maximum sentence is two years jail, less a day. There are no mandatory minimums for assault causing bodily harm. Non-custodial sentences are available.

To obtain a conviction for Assault Causing Bodily Harm, the Crown must first prove that there was an assault – that force was applied without the complainant’s consent and that the accused was not acting in self-defence. Additionally, the Crown must prove that the assault was the cause of an injury that is more than “minor” or “trifling.”

The Investigation

Assault Causing Bodily Harm investigations unfold according to the nature of how and when the police receive a complaint. For example, police may be called to a bar or nightclub when a concerned patron or server sees a fight break out. Police will attend the scene and make an arrest. In other cases, it may take hours, days or weeks for police to be notified. In these situations, police will contact the suspect by attending at their house or workplace. They may contact the suspect by phone. As investigators, the police will want to hear the suspect’s side of the story. As experienced lawyers, this is where we can help our clients understand their right to silence as guaranteed by the Charter.

When we are contacted by a suspect prior to their arrest, we can be of significant assistance. We will contact police to determine who the investigating officer is. We will then contact this officer to determine the nature of the investigation. Because of the laws concerning solicitor/client privilege, we can act as a “buffer” between police and our client. We are able to speak on your behalf without creating any evidence that could be used to incriminate you. We will strive to persuade police to not take you into custody at all or, alternatively, to release you as quickly as possible, with the least onerous conditions that are appropriate.

Recent Successes

R. vs. R.C. – Surrey Provincial Court

Charge: Criminal Harassment; Breach of a recognizance.
Issue: Whether it was appropriate to resolve this domestic harassment by ending the criminal prosecution.
Result: Mr. Gauthier was able to persuade Crown counsel to stay the criminal charges upon. our client entering into a Peace Bond for a period of 12 months. No criminal record.

R. vs. R.N. – RCMP Investigation

Charge: Possession of child pornography.
Issue: Whether police would be able to prove that our client was the only person that had access to the IP address on which the unlawful material was downloaded.
Result: Mr. Mines provided information to the police investigator that led the investigator to close the file with no charges recommended against our client. No jail. No criminal record.

R. vs. D. K. – Vancouver Provincial Court

Charges: Assault; Uttering Threats.
Issue: Whether it was appropriate for the court to enter a conviction.
Result: Mr. Gauthier was able to steer our client through a course of rehabilitation and was able to persuade Crown counsel and the Court to grant our client a conditional discharge.  No criminal conviction.

R. vs. T. F. – Surrey Provincial Court

Charge: Breach of Probation (no contact).
Issue: Whether the Crown could prove that our client intended to breach the "no contact" order that he was subject to.
Result: Mr. Mines was able to persuade Crown counsel that our client bumped into the complainant accidentally. Crown counsel entered a stay of proceedings, bringing the matter to an end. No criminal record.

R. vs. T.X. – Insurance Fraud Investigation.

Charge: Assault (domestic).
Issue: In light of the rehabilitative steps our client completed, whether there was a public interest in proceeding with this child discipline/assault case.
Result: Mr. Mines was able to rely on the extraordinary circumstances of the case and our client's commitment to ongoing family counselling. He was able to persuade Crown counsel to enter a stay of proceedings. No criminal record.

R. vs. A.M. – Vancouver Provincial Court

Charge: Assault (domestic).
Issue: In light of the rehabilitative steps our client completed, whether there was a public interest in proceeding with this child discipline/assault case.
Result: Mr. Mines was able to rely on the extraordinary circumstances of the case and our client's commitment to ongoing family counselling. He was able to persuade Crown counsel to enter a stay of proceedings. No criminal record.

R. vs. S.L. – ICBC Investigation

Charges: Failing to remain at the scene of an accident.
Issue: Whether our client was obligated to provide a possibly incriminating  statement to the adjuster that could have led to criminal charges and a loss of  insurance coverage.
Result:  Mr. Mines was able to provide the required information to ICBC on our client's behalf. No charges were  recommended. No loss of insurance coverage.

R. vs. R. L. – New Westminster Supreme Court (jury).

Charge: Sexual Assault.
Issue: The credibility and reliability of the complainant and  our client who both testified in this historic sexual assault case.
Result: After  9 hours of deliberations, the jury was deadlocked and could not reach an unanimous decision. No conviction. The trial judge remitted the matter back to court to set a new trial.

R. vs. S.M.A. – Vancouver Provincial Court

Charge: Dangerous Driving Causing Bodily Harm.
Issue: Whether there was a substantial likelihood of a criminal conviction and whether it was in the public interest to proceed with a criminal charge.
Result: Mr. Johnson was able to persuade Crown counsel to proceed under the Motor Vehicle Act rather than the Criminal Code. After gearing Mr. Johnson's submissions, the Court sentenced our client to a $100 fine and a 3 year driving prohibition. No criminal record. No jail.

R. vs. S.G. – Coquitlam RCMP Investigation

Charge: Theft Under $5000 (shoplifting).
Issue: Whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to persuade the investigating RCMP member to not forward criminal charges after we settled the matter civilly on our client's behalf. No criminal record.

R. v. J.D. – Richmond Provincial Court

Charge: Assault.
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in the public interest to continue with the criminal prosecution.
Result: Mr.Johnson was able to persuade Crown counsel to refer our client to the Alternative Measures Program and to enter a stay of proceedings. No criminal record.  

R. vs. C.L. – Civil Fraud Investigation

Charge: Fraud/Theft from employer.
Issue: Whether it was in the public interest to proceed with criminal charges.
Result: Mr. Johnson was able to negotiate repayment on our client's behalf and obtained a civil release from the employer. No charges were forwarded to Crown counsel. No criminal record.

The Defence

Consent

As in a common assault charge, the Crown must prove that the complainant did not consent to receiving contact from the accused. For example, if a person is engaged in a fist fight that the other person agrees to take part in, and there is no resulting injury, the person is entitled to be found not guilty. However, it should be noted that the courts have held that a person cannot consent to receive bodily harm. Thus, consent is vitiated where an accused intentionally applies force that causes non-trivial bodily harm in the course of a fist-fight or brawl.

Self Defence

The law, under s. 34 of the Criminal Code, allows that if a person reasonably believes that force is being used (or threatened to be used) against them, the person is permitted to use reasonable force to defend themselves, or another person, so long as the force they use is not excessive. In other words, in the course of being attacked, a person may use reasonable force to defend themselves even if it results in bodily harm to the attacker. In determining whether the force used was excessive or not, the court will consider various circumstances, including:

  • The nature of the force or threat;
  • The extent to which there was an alternative to using force;
  • The size, gender and physical capabilities of the parties; and
  • The history and relationship of the parties.

In essence, self-defence is available as a defence to the extent the accused person, objectively, had to defend themselves (or another person). The force used must not be excessive. As lawyers with more than 30 years defending all types of assault charges, we have the experience to assess cases before they get to trial. In appropriate cases, we are able to persuade Crown counsel to not proceed with the prosecution, to proceed on a lesser charge, or to persuade the judge to grant a discharge, rather than enter a conviction against our client.

Start with a free consultation.

If you are being investigated by police or if you’ve been charged with a criminal or driving offence, don’t face the problem alone. Being accused of an offence is stressful. The prospects of a criminal record or jail sentence can be daunting. Even if you think there is no defence, we may be able to help. To schedule a free initial consultation with one of our Vancouver lawyers, contact us now.