Serious Personal Injury Offences

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General Principles

A Dangerous Offender or Long-Term Offender Application can only be made in relation to a conviction for a "serious personal injury offence" (SPIO) under s. 752.

Prior to the legislative amendments to the Code in August 2012, offences otherwise eligible for a conditional sentences were deemd ineligible if they were serious personal injury offences.

s. 752
...
“serious personal injury offence” means

(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving
(i) the use or attempted use of violence against another person, or
(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,
and for which the offender may be sentenced to imprisonment for ten years or more, or
(b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault).


R.S., 1985, c. C-46, s. 752; 2008, c. 6, ss. 40, 61; 2010, c. 3, s. 8; 2012, c. 1, s. 35.


CCC

In determining whether an offence is a SPIO, the court does not need to be "limited to considering only those contextual factors that relate to the conduct" of the accused.[1] The judge can look at the surrounding circumstances to determine if there has been an endangerment of another person under s. 752.[2]

SPIO is not restricted to offences against the person and can include any offences meeting the definition.[3]

Sexual assault is a SPIO under both 752(a) and (b).[4]

Robberies have frequently been found to a serious personal injury offence.

Not every threat made while brandishing a weapon involves violence, particularly where there is no immediate apparent danger.[5]

Where there is a threat of any sort the question of it amounting to violence is a question of fact.[6] Robberies involving utterances or brandishing of objects have been a mixed result.[7]

  1. R v Goulet 2011 ABCA 230 (CanLII) at para 14
  2. R v Ali, 2010 ABPC 393 (CanLII) at paras 13-17
  3. R v Morgan, 2005 CanLII 7254 (ON CA)
  4. R v M.B.H., 2004 CanLII 14199 (ON CA)
    R v Y (J.), 1996 CanLII 4916 (SK CA)
  5. Ponticorvo, 2009 ABCA 117 (CanLII)
  6. R v Lebar, 2010 ONCA 220 (CanLII) at para 50
  7. R v Przybyla, 2012 ABPC 183 (CanLII) - no violence upon saying "give me money or I'll stab [a non-existent person]" R v Pearson, 2012 ABQB 240 (CanLII) - no violence by holding out a pocketknife and asking for money and then leaving when none was provided

"use or attempted use of violence"

The use or attempted use of violence does not necessarily require overt violence. Several cases have stated that a robbery wherein a weapon such as a knife is displayed amounts to an act of violence.[1]

The meaning of "violence" in this context covers a "very expansive range of dangerous behaviour".[2]

  1. R v Lebar 2010 ONCA 220 (CanLII)
    R v Griffin, 2011 NSCA 103 (CanLII)
    c.f. R v Simpson, 2012 SKPC 18 (CanLII)
  2. R v Lebar at para 49

"conduct endangering...life or safety"

This can cover the offence of leaving the scene of an accident under s. 252(3.1)[1]

The two branches of "endanger or likely to endanger" should be read as one test.[2]

  1. R v Goulet, 2011 ABCA 230 (CanLII)
    R v Ali 2010 ABPC 393 (CanLII)
    c.f. R v Bruce, 2012 ABPC 8 (CanLII)
  2. R v Goulet ("The distinction between “endangerment” and “likely endangerment” is at one level only conceptual, and these two parts of the definition are best read together as one test.")

"inflict severe psychological damage"

SPI offences do not have to be offences against persons. They may also be lesser offences that involve conduct that inflicts or likely inflicts severe psychological damage. This can include offences involving sending threatening letters to victim to dissuade them from giving evidence. [1]

A party to an offence of violence, such as someone who counsels robbery with violence, can be found to have committed a serious personal injury offence.[2]

It is not necessary to adduce expert evidence about the risk of severe psychological damage. The judge may determine it on an objective consideration of the evidence.[3]

  1. R v Morgan 2005 CanLII 7254 (ON CA), (2005), 195 CCC (3d) 408 (Ont. C.A.)leave to appeal refused - obstructing justice charge by sending a letter, found as SPIO
    R v S.M., [2005] O.J. No. 1041 threatening letter was SPIO
  2. R v Keepness, 2010 SKQB 118 (CanLII)
  3. R v Walker, [2000] O.J. No. 4091 at para 7
    R v McGraw, 1991 CanLII 29 (SCC), [1991] 3 SCR 72