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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. J.L. - Vancouver Provincial Court

Charges: Sexual assault; Unlawful Confinement; Assault by Choking.
Issue: Given the impact of the additional evidence that Mr. Johnson provided to Crown counsel, whether there was a substantial likelihood of a conviction.
Result: Crown counsel agreed that the new evidence significantly undermined the strength of the case.  Crown counsel entered a stay of proceedings, bringing the prosecution to an end. No jail. No criminal record.

R. vs. S.D. - Vancouver Provincial Court

Charge: Assault.
Issue: Whether it was appropriate for our client to receive a suspended sentence despite having two prior assault convictions.
Result: After hearing Mr. Mines' submissions, the trial judge granted our client a suspended sentence with 12 months of " non reporting" probation.  No jail.

R. vs. T.L. - Vancouver Provincial Court

Charges: Indecent Act; Mischief (reduced to Peace Bond).
Issue: Whether the Crown could prove that our client intended to commit a criminal offence.
Result: Mr. Mines was able to persuade Crown counsel to enter a stay of proceedings on the the criminal charges upon our client entering into a Peace Bond. No criminal record.

R. vs. B.I. - Vancouver Provincial Court

Charges: Assault.
Issue: Given the Covid-19 pandemic, whether it was appropriate to refer our client into the Alternative Measures Program for this assault by spitting offence.
Result: Mr. Mines was able to provide Crown counsel with compelling information about our client which resulted in Crown allowing our client into Alternative Measures and staying the charge upon our client completing the program. No criminal record.

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

Charges: Assault with a Weapon; Uttering Threats x2; Unlawful Confinement.
Issues: Whether Crown could prove that a weapon was used or that the complainant was unlawfully confined.
Result: Mr. Mines was able to persuade Crown counsel to accept pleas to the lesser charges of common assault and uttering a threat. After hearing Mr. Mines' submissions on our client's behalf, the trail judge granted our client a conditional discharge. No jail; no permanent criminal record.

R. vs. D.D. - Vancouver Provincial Court

Charge: Driving while prohibited.
Issue: Whether it was in the public interest to proceed with the prohibited driving charge.
Result: Mr. Johnson was able to persuade Crown counsel to proceed on the lesser charge of driving without possessing a valid driver's licence. Rather than the 12 month minimum mandatory driving prohibition, our client received a 4 month prohibition.

R. vs. J.L. - Surrey Provincial Court

Charge: Assault (domestic).
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 enter a stay of proceedings on the assault charge upon you entering into a s. 810 peace bond. No criminal record.

R. vs. R.M. - Insurance fraud investigation

Charge: Fraud Under $5000.
Issue: Whether there was a public interest in proceeding with the prosecution in this extended health insurance fraud matter.
Result: Mr. Johnson was able to negotiate a civil settlement and to persuade the investigator to not pursue a prosecution. No criminal record.

R. vs. D.P. - Vancouver provincial Court

Charge: Uttering a Threat (reduced to Peace Bond).
Issues: Whether the words uttered were clearly a threat or not.
Result: Mr. Mines was able to persuade Crown counsel that the words were vague. Crown agreed to end the criminal prosecution upon our client entering into a Peace Bond with a "no contact" condition. No criminal record.

R. vs. B.R. - Port Coquitlam Provincial Court

Charges: Mischief to Property (x2).
Issue: Whether, given our client's circumstances, it was appropriate to continue the criminal prosecution of this matter which involved damage in excess of $5000 to two vehicles.
Result: Mr. Johnson was able to persuade Crown counsel to allow our client into the Alternative Measures Program and to stay both criminal charges upon completion. No criminal record.

R. vs. V. P. - Vancouver Provincial Court

Charges: Assault, Uttering Threats.
Issue: Given the context of this threatening and assault by spitting offence, whether it was appropriate for our client to be convicted.
Result: Mr. Gauthier provided additional information to the Crown and the Court about our client and was able to persuade the judge to grant our client a conditional discharge. No criminal conviction.

R. vs. P. I. - Vancouver Provincial Court

Charges: Sexual Assault (reduced to assault).
Issue: Given our client's mental health issues, whether it was in the public interest for Crown to continue with the sex assault prosecution.
Result: Mr. Johnson was able to provide information top Crown counsel and to persuade Crown to proceed with a charge of common assault. After hearing Mr. Johnson's submissions, the court granted our client a conditional discharge. no criminal conviction. no jail, no sex offender registry.

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.