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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. A.S. – Vancouver Provincial Court

Charges: B & E, Fraud over $5000, Motor vehicle theft; Identity theft, Driving while prohibited (x2).
Issue: Given our client’s personal circumstances and rehabilitative efforts, what would be the appropriate sentence.
Result:  Mr. Johnston was able to persuade Crown to make a joint submission for time-served, followed by a period of probation. The Crown directed stays of proceedings on several charges.  After hearing Mr. Johnston's submissions on our client's behalf, the sentencing judge noted that he would have ordinarily imposed a lengthy jail sentence for an accused in our client's position, but he accepted the joint submission. No further jail.

R. v. M.A.K. – Vancouver Provincial Court

Charge: Possession of fentanyl and carfentanil for the purposes of trafficking.

Issue: Given the information Mr. Johnston provided to Crown counsel regarding our client’s personal circumstances and the circumstances of the alleged offence, whether it was appropriate to proceed with a criminal prosecution.

Result: Mr. Johnston was able to persuade the Crown that there were issues with respect to the Crown's evidence such that it was unlikely our client would be convicted at trial, and that there was insufficient public interest in continuing to prosecute our client in any case. Given this informaton, the Crown directed a stay of proceedings on the charge. No criminal record.

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

Charge: Carrying a Concealed Weapon.
Issue: Given the information Mr. Johnston was able to provide to Crown counsel regarding the circumstances of the incident and our client's background, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Johnston persuaded Crown counsel that there was insufficient public interest, leading Crown to enter a stay of proceedings. No criminal record.

R. v. M.A. Insurance Fraud Investigation

Charge: Insurance Fraud Under $5000.
Issue: Given our client's rehabilitation and repayment of the disputed funds, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to persuade the insurance company to settle the matter on a civil basis. No criminal charges were forwarded. No criminal record.

R. v. D.S. – Whitehorse Yukon Territorial Court

Charge: Section 810 Recognizance (Peace Bond) Application.
Issue: Whether the Informant could prove her allegations on a balance of probabilities.
Result: After Mr. Gauthier' communications with the Informant, she declined to advance the case and, on the day of the trial, the court withdrew the Application. No record.

R. v. E.N. – North Vancouver Provincial Court

Charge: Fraud Under $5000.
Issue: Given the information Mr. Gauthier provided to Crown counsel regarding our client's personal circumstances and the circumstances of the alleged offence, whether it was appropriate to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to persuade Crown that there wa sno substantial likelihood of a conviction resulting ultimately in Crown declining to approve a charge. No criminal record.

R. v. E.N. – North Vancouver Provincial Court

Charge: Mischief Under $5000.
Issue: Given the information Mr. Gauthier provided to Crown counsel regarding our client’s personal circumstances and the circumstances of the alleged offence, whether it was appropriate to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to persuade Crown that there was no substantial likelihood of a conviction resulting ultimately in Crown declining to approve a charge. No criminal record.

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

Charges: Failing to Remain at the Scene of an Accident.
Issue: Whether our client's Charter rights were breached due to unreasonable delay.
Result: Mr. Mines was able to provide information to Crown counsel that ultimately caused Crown  to proceed against our client as the owner and not the driver of the vehicle. He plead to the lesser charge of Failing to Remain under the Motor Vehicle Act and received a fine, but no driving prohibition. No criminal record.

R. v. H.C. – Vancouver Provincial Court

Charges: Sexual Assault; Sexual Interference.
Issue: Whether the complainant held herself out to be at least 16 years of age and whether our client took reasonable steps to ascertain her age.
Result: Mr. Mines was able to provide information to Crown counsel on our client's behalf that established that our client did take reasonable steps to ascertain the complainant's age. In the result, Crown declined to approve any criminal charges. No criminal record.

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

Charges: Tax Evasion (Excise Tax Act); Fraud Over $5000 x2.
Issue: Given our client's cooperation with the investigation, his civil settlement and his genuine remorse, whether a jail sentence was appropriate for this almost one million dollar tax evasion case.
Result: Mr. Mines was able to provide medical and financial information to Crown counsel that ultimately led Crown to proceed on the fraud charges rather than seeking an almost one million dollar mandatory fine under the Excise Tax Act. The Court accepted the joint submission for a 2 year less a day conditional sentence and probation. No jail.

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

Charges: Assault (reduced to Peace Bond).
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in the public interest continue with a criminal prosecution.
Result: Mr. Mines was able to persuade Crown counsel to proceed with a Peace Bond rather than the criminal assault charge. No criminal record.

R. v. T.C. – Fraud Over $5000 Investigation

Charge: Fraud Over $5000.
Issue: Given the civil settlement of this $245,000 misappropriation from employer case, whether there was any interest in pursuing  a criminal investigation and prosecution.
Result: Mr. Johnson was able to negotiate a civil settlement and obtained a Final Release from the complainant. No criminal investigation occurred. No risk of jail or criminal prosecution.

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.