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 of the Criminal Code.

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

The definition of "serious personal injury offence" under s. 752 reads as follows:

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; 2014, c. 25, s. 29.

CCC


Note up: 752

Contextual Application

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]

Example Offences – Sexual Assault

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

Example Offences – Robbery

Robberies have frequently been found to a serious personal injury offence.[5]

Not every threat made while brandishing a weapon involves violence, particularly where there is no immediate apparent danger.[6]

Appellate Standard of Review

Where there is a threat of any sort the question of it amounting to violence is a question of fact.[7] Robberies involving utterances or brandishing of objects have been a mixed result.[8]

  1. R v Goulet, 2011 ABCA 230 (CanLII), per Slatter JA, at para 14
  2. R v Ali, 2010 ABPC 393 (CanLII), per Wheatley J, at paras 13 to 17
  3. R v Morgan, 2005 CanLII 7254 (ON CA), per MacFarland JA
  4. R v MBH, 2004 CanLII 14199 (ON CA), per Doherty JA
    R v JY, 1996 CanLII 4916 (SK CA), per Sherstobitoff JA
  5. e.g. R v Griffin, 2011 NSCA 103 (CanLII, per Bryson JA
  6. R v Ponticorvo, 2009 ABCA 117 (CanLII), per curiam
  7. R v Lebar, 2010 ONCA 220 (CanLII), per Epstein JA, at para 50
  8. R v Przybyla, 2012 ABPC 183 (CanLII), per Barley J - no violence upon saying "give me money or I'll stab [a non-existent person]" R v Pearson, 2012 ABQB 240 (CanLII), per Michalyshyn J - 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), per Epstien JA
    R v Griffin, 2011 NSCA 103 (CanLII), per Bryson JA
    cf. R v Simpson, 2012 SKPC 18 (CanLII), per Tomkins J
  2. Lebar, supra, at para 49

"conduct endangering...life or safety"

This can cover the offence of leaving the scene of an accident under s. 320.16 [was 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), per Slatter JA
    R v Ali, 2010 ABPC 393 (CanLII), per Wheatley J
    cf. R v Bruce, 2012 ABPC 8 (CanLII), per Fradsham J
  2. Goulet, supra ("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 the 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.), per MacFarland JA - leave to appeal refused - obstructing justice charge by sending a letter, found as SPIO
    R v SM, [2005] OJ No 1041(*no CanLII links) threatening letter was SPIO
  2. R v Keepness, 2010 SKQB 118 (CanLII), per Dawson J
  3. R v Walker, [2000] OJ No 4091, 2000 CanLII 16974 (ON CA), per curiam, at para 7
    R v McGraw, 1991 CanLII 29 (SCC), [1991] 3 SCR 72, per Cory J