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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. v. M.M. – North Vancouver Provincial Court

Charges: Theft Under $5000 (shoplifting).
Issue: Whether it was in the public interest to proceed with a criminal prosecution in this $900 shoplifting case.
Result: Mr. Mines was able to provide information to Crown counsel about our client's personal circumstances, resulting in Crown referring our client to the Alternative Measures program. No criminal record.

R. v. J.Z. & Q.M. – Insurance Fraud Investigation

Charges: Fraud Over $5,000.
Issue: Whether our client's were responsible for approximately $15,000 in false claims unknowingly made in their names by a health care provider.
Result: Mr. Gauthier was able to settle with the insurance provider. No criminal charges were forwarded against our clients. Mr. Gauthier was also able to assist with the first steps of recovering the funds from the dishonest health care provider. No criminal record.

R. v. V.N. – Surrey Provincial Court

Charges: Sexual Assault (police investigation).
Issue: Whether there was sufficient evidence to support a criminal prosecution.
Result: Mr. Gauthier opposed the police application to extend the time period they could continue to retain seized evidence and he provided advice to our client in steering him through the investigation. The matter concluded with no criminal charges being forwarded to Crown. No criminal record.

R. v. R.T. – Insurance Fraud Investigation

Charge: Insurance Fraud Under $5,000 investigation.
Issue: Given our client's rehabilitation and repayment of disputed claims, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Mines was able to persuade the insurance company to settle the matter on a civil basis. No criminal charges forwarded. No criminal record.

R. v. G. A.G. – Vancouver Provincial Court

Charge: Assault (domestic).
Issue: Whether there was a substantial likelihood of a conviction in this case.
Result: Mr. Mines was able to persuade Crown counsel that, given the lack of cooperation by the complainant, that there was no prospect of a conviction. Crown counsel did not approve any charges and, on Mr. Mines' representations, agreed to cancel the scheduled court date and to direct police to cancel our client's Undertaking to Appear. No criminal record.

R. v. L.M. – Vancouver Provincial Court

Charge: Mischief Over $5000.
Issue: Whether Crown could prove the value of damage alleged to have been caused by our client.
Result: Mr. Mines was able to persuade Crown counsel that because it could not accurately prove the value of damage, and that our client had taken appropriate steps of self-rehabilitation,  Crown elected to not approve any charges. No criminal record.

R. v. H.K. – Port Coquitlam Provincial Court

Charge: Assault.
Issue: Whether it was in the public interest to proceed with a criminal prosecution in this "road rage" case.
Result: Mr. Mines was able to provide information to Crown counsel about our client's personal circumstances and the circumstances of the incident which resulted in Crown staying the charge after our client completed Alternative Measures. No criminal record.

R. v. J.S. – North Vancouver Provincial Court

Charges: Uttering Threats (x3).
Issue: Whether or not our client was entitled to be sentenced to a conditional discharge rather than being convicted of this offence.
Result: Upon hearing Mr. Gauthier's submissions on our client's behalf, the Court granted our client a conditional discharge rather than entering a conviction. No criminal record.

R. v. S.G. – Surrey Provincial Court

Charges: Assault; Mischief. Issue: Given the rehabilitative steps that we guided our client through and advocating on her behalf that there was a reasonable self defence issue, whether there was a substantial likelihood of securing a conviction.
Result: Mr. Gauthier was able to persuade Crown counsel that there was no substantial likelihood of a conviction. Ultimately Crown entered a stay of proceedings. No criminal conviction. No criminal record.

R. v. K.B.K. – Vancouver Provincial Court

Charges: B&E; Assault; Distribute Intimate Images.
Issue: Whether the Crown could comply with a defence disclosure request and possibly face a Charter application to have charges stayed due to unreasonable delay.
Result: On the eve of the trial, Mr. Mines was able to persuade Crown to allow our client to plead guilty to the least serious charge, assault by slapping. Crown nonetheless sought a conviction and probation, but after hearing Mr. Mines' submissions, the trial judge granted our client a conditional discharge. No criminal conviction.

R. v. C.B.S. – Richmond Provincial Court

Charges: B&E; Assault; Distribute Intimate Images.
Issue: Whether the Crown could comply with a defence disclosure request and possibly face a Charter application to have charges stayed due to unreasonable delay.
Result: On the eve of the trial, Mr. Mines was able to persuade Crown to allow our client to plead guilty to the least serious charge, assault by slapping. Crown nonetheless sought a conviction and probation, but after hearing Mr. Mines' submissions, the trial judge granted our client a conditional discharge. No criminal conviction.

R. v. V.L. – Vancouver Provincial Youth Court

Charge: Assault.
Issue: Given the rehabilitative steps we were able to guide our client through, whether there was a public interest in proceeding with criminal charges.
Result: After providing Crown counsel with our client's positive psychological counselling report, Mr. Gauthier was able to persuade Crown counsel to enter a stay of proceedings. 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.