Definition of Bodily Harm: Difference between revisions
No edit summary |
m Text replacement - "'''([a-zA-Z]+ [a-zA-Z]+ [a-zA-Z]+)'''<br>" to "; $1" |
||
| Line 38: | Line 38: | ||
This definition is similar (if it is not word for word) to the English common law definition of actual bodily harm stated.<ref>''R v Donovan'' [1934] 2 KB 498 (also 25 Cr. App. Rep.1 CCA) at page 509 and ''R v Chan-Fook'' [1994] 2 All ER 552 at 557D where the reference to transient or trifling injuries is taken as applying to actual bodily harm rather than bodily harm</ref> | This definition is similar (if it is not word for word) to the English common law definition of actual bodily harm stated.<ref>''R v Donovan'' [1934] 2 KB 498 (also 25 Cr. App. Rep.1 CCA) at page 509 and ''R v Chan-Fook'' [1994] 2 All ER 552 at 557D where the reference to transient or trifling injuries is taken as applying to actual bodily harm rather than bodily harm</ref> | ||
; Transient or Trifling | |||
An injury must be ''both'' transient and trifling to be excluded from the definition.<ref> | An injury must be ''both'' transient and trifling to be excluded from the definition.<ref> | ||
''R v JA'', [http://canlii.ca/t/28wdg 2010 ONCA 226] (CanLII){{perONCA|Simmons JA}} - reversed on other grounds at [2011] 2 SCR 440<br> | ''R v JA'', [http://canlii.ca/t/28wdg 2010 ONCA 226] (CanLII){{perONCA|Simmons JA}} - reversed on other grounds at [2011] 2 SCR 440<br> | ||
Revision as of 17:07, 20 January 2019
General Principles
Section 2 of the Criminal Code defines "bodily harm" as:
s.2
...
“bodily harm” means any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature;
...
...2014, c. 17, s. 1, c. 23, s. 2, c. 25, s. 2; 2015, c. 3, s. 44, c. 13, s. 3, c. 20, s. 15.
– CCC
- Standard
Bodily harm is considered a "low threshold" to meet.[1]
It must be more than "a very short time period and an injury of very minor degree which results in a very minor degree of distress".[2]
Bodily harm could include psychological injury to the victim.[3]
Once bodily harm was found, the wording of s. 2 only requires interference of "health" or comfort of the person.[4]
This definition is similar (if it is not word for word) to the English common law definition of actual bodily harm stated.[5]
- Transient or Trifling
An injury must be both transient and trifling to be excluded from the definition.[6]
"Transient" has been interpreted as "Passing by or away with time; not durable or permanent; temporary, transitory"[7]
"Trifling" has been interpreted as "Of little moment or value; trumpery; insignificant, petty"[8]
It is wrong to conclude that merely because the injury heals in less than a week would not be bodily harm as serious life-threatening injuries can be of short duration.[9]
The court should look at the overall effect of the injuries, rather than the individual's injuries that may be trifling in isolation.[10]
- Medical Evidence
It is not necessary to call medical evidence to prove bodily harm.[11]
- Bruising
Generally mere bruising will not be bodily harm.[12] However, more serious bruising such as those which last 10 or more days or are present in the facial area will be considered bodily harm.[13]
- Examples
Specific examples of bodily harm:[14]
- fracture of the nasal bones [15]
- scrapes, lacerations and bruises, especially around the eye and a large amount of hair pulled out by the roots[16]
- superficial injuries, consisting primarily of bruising and abrasions less than an inch in length[17]
- "a number of bruises to the neck and arms, a number of lacerations to the face, chest, shoulder and wrist that which cleared up within a week, difficulty speaking for three or four days as a result of choking and a scar on her forearm from a laceration"[18]
- a sore neck that lasted for approximately one month[19]
- small bruise on calf, small anal tear and deviated septum all of which would "resolve ... within a few days"[20]
- bruises going away after 11 days, sore hand and sore throat.[21]
There is not necessarily a requirement of an injury being present for a certain duration to be considered bodily harm. The injury may be short and still not be trifling.[22]
- Appeals
Whether facts meet the definition of "bodily harm" is reviewable on a standard of correctness.[23]
- ↑
R v Bulldog, 2015 ABCA 251 (CanLII), per curiam, at para 44
R v Dorscheid, 1994 ABCA 18 (CanLII), [1994] AJ No 56 (CA), per Cote JA, at para 11 - ↑
Bulldog, supra, at para 44
R v Dixon (1988), 1988 CanLII 2824 (BC CA), 42 CCC (3d) 318 at 332, [1988] 5 WWR 577, per Carrothers JA - ↑
R v McCraw, 1991 CanLII 29 (SCC), [1991] 3 SCR 72, (1991), 66 CCC (3d) 517 (SCC), per Cory J
see also R v C.D.; R v CDK, [2005] 3 SCR 668, 2005 SCC 78 (CanLII), per Bastarache J
- ↑ Dixon, supra
- ↑ R v Donovan [1934] 2 KB 498 (also 25 Cr. App. Rep.1 CCA) at page 509 and R v Chan-Fook [1994] 2 All ER 552 at 557D where the reference to transient or trifling injuries is taken as applying to actual bodily harm rather than bodily harm
- ↑
R v JA, 2010 ONCA 226 (CanLII), per Simmons JA - reversed on other grounds at [2011] 2 SCR 440
- ↑ Dixon, supra at p. 331
- ↑ Dixon, supra at p. 331
- ↑ R v Garrett (1995), 169 A.R. 394 (C.A.)
- ↑ Garrett, ibid.
- ↑ R v Giroux, 1995 ABCA 393 (CanLII), [1995] AJ No 900 (C.A.), per Fraser CJ (2:1)
- ↑
R v Dupperon, 1984 CanLII 61 (SK CA), per curiam
- ↑ R v Dixon, 1988 CanLII 205 (YK CA), per Carrothers JA
- ↑ See R v Moquin, 2010 MBCA 22 (CanLII), per Beard JA
- ↑ R v Papalia, 2012 BCSC 245 (CanLII), per Bruce J, at para 135
- ↑ R v Dorscheid, 1994 ABCA 18 (CanLII), [1994] AJ No 56 (C.A.), per Cote JA, at para 11
- ↑ R v Rabieifar (A.), 2003 CanLII 22353 (ON CA), [2003] OJ No 3833 (C.A.), per curiam
- ↑ Moquin, supra
- ↑ Giroux, supra
- ↑ R v CK, 2001 BCCA 379 (CanLII), per Hall JA, at para 3
- ↑ Moquin, supra, at paras 32, 33
- ↑ R v Dixon, 1988 CanLII 205 (YK CA), per Carrothers JA
- ↑
R v Bulldog, 2015 ABCA 251 (CanLII), per curiam, at para 18
R v Morin, 1992 CanLII 40 (SCC), [1992] 3 SCR 286 at 294, 66 CCC (3d) 193, per Sopinka J