QUICK TAKEAWAY
Assault Causing Bodily Harm: Assault occurs when you intentionally apply force either directly or indirectly to another person without their consent. It could lead to jail time and a criminal record depending on the severity. Assault causing bodily harm and assault with a weapon is covered under s.267 of the Criminal Code and punishable by up to 10 years in jail. It is defined as "any hurt or injury to a person that interferes with the health or comfort of the person that is more than merely transient or trifling in nature." Violent crime, including assault, accounted for about one-fifth Criminal Code offences reported to police in 2019, according to Statistics Canada. Harsh sentences are often handed out to deter repeat offences.
Table of Contents:
What is Assault Causing Bodily Harm?
There are several categories of assault in the Criminal Code beginning at s.265 that states that you can face prosecution if you apply intentional force directly or indirectly on a victim without their consent. The charge is broken down into domestic or non-domestic categories.
Domestic Assault
If you assault someone you are in a relationship with, such as a spouse or boyfriend or girlfriend, you could be charged with domestic assault, which is treated more seriously. See Domestic Violence.
Non-Domestic Assault
If a person has suffered injuries because of something you have done, you can face a criminal charge for assault causing bodily harm. Those injuries can range from a few scratches to broken bones or a combination of injuries.
The Code states that to convict, the Crown must prove the injury was not "trifling" (insignificant or petty) or "transient" means something that will pass with time.
What is Needed to Convict
To gain a conviction, the Crown prosecutorLawyers who prosecutes charges on behalf of the Crown must prove beyond a reasonable doubtThe standard that must be exceeded to find someone guilty that you:
- applied force to someone;
- the victim did not consent to that force; and
- the force was applied intentionally.
If you are accused of assault, your defence attorney might submit evidence to show your actions were not intentional. There could also be reasons why your arrest was not lawful under the Canadian Charter of Rights and Freedoms.
The nature of the injuries will be used to determine whether you can be convicted of simple assault or assault causing bodily harm. For example, bruises would not necessarily be considered to be bodily harm unless those bruises were combined with other injuries, such as a cut to the head.
There are defences your lawyer can use if you have been charged with assault causing bodily harm If you were acting in self-defence and did not mean to inflict grievous harm you could be acquitted. Implied consent could be used in an assault defence when an injury occurred during a fistfight if it can be proven the victim willingly participated. However, the law states that a person cannot consent to bodily harm. This is where the degree of force comes into play.
As well, you cannot be convicted of assault causing bodily harm if your actions were taken to protect yourself, your property or other people and their property.
It is important to note those actions would not be justified if you keep attacking someone when they are down. As well, excessive force cannot be used to defend yourself against someone breaking into your home.
The Crown must establish there was an intent (mens reaHaving criminal intent, knowledge, or recklessness) to cause bodily harm. They don’t need to prove there was an intent to maim, wound or disfigure.
Treated as a Summary or Indictable Offence
Assault causing bodily harm is a hybrid offence (good idea for an article). If you are facing trial the Crown can proceed with the charge as an indictable offenceIndictable offences are more-serious criminal offences and you would face imprisonment. The prosecutor could deal with the offence as a summary convictionUsed for lesser offences, which has less severe punishment.
The Crown will consider such factors as the seriousness of the incident and your prior criminal record when deciding how to proceed.
Penalties for Assault Causing Bodily Harm
You can face a maximum penalty of two years less a day in jail if you are convicted of the summary offence of assault causing bodily harm. If those charges proceed by indictment, the maximum penalty is a prison term of 10 years.
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Burlingham Cuelenaere Law Office
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Glossary of Legal Terms
Crown prosecutor
Lawyers who act for the federal, provincial and territorial governments and prosecute people accused of crimes on behalf of the Crown.
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
Mens rea
Mens rea refers to having criminal intent, knowledge, or recklessness since the person is aware of their misconduct. The literal translation from Latin is "guilty mind." The Crown needs to show that the accused had mens rea to win a conviction.
Reasonable doubt
The Supreme Court of Canada has said that reasonable doubt “falls much closer to absolute certainty than to proof on a balance of probabilities” and “that something less than absolute certainty is required, and that something more than probable guilt is required."
Summary conviction
Summary convictions are used for lesser offences with penalties, fines and short jail time. They reflect the majority of offences as defined in the Code.
