R v Moquin: Definition of “Bodily Harm”
On March 1, the Manitoba Court of Appeal (“MBCA”) released its decision in R v Moquin, 2010 MBCA 22. In doing so, the MBCA visited how to properly distinguish between the crime of “assault” (s. 265 of the Criminal Code, RSC 1985, c C-46) and the crime of “assault causing bodily harm” (under s. 267(b) of the Criminal Code).
The accused and the complainant formed was called a “good snapshot of a classic abusive domestic relationship.” The incidents at issue on appeal were the following:
- As part of a greater assault, the accused pulled the complainant’s hair so hard as to pull some out, leaving her with a sore scalp for a few days;
- As part of another greater assault, the accused grabbed the complainant by the throat, thereby choking her hard enough to make it difficult for her to breathe and leaving her with a sore throat and causing difficulties when swallowing for a few days;
- The accused squeezed the complainant’s hand so hard so as to bruising, soreness, and an inability to bend it for a week or so; and
- The accused committed an assault leaving the complainant with bruised arms and a sore throat.
The trial judge held that these physical injuries did not amount to “bodily harm” as required by s. 267(b), and accordingly convicted the accused of common “assault.”
The MBCA Decision
Under s. 2 of the Criminal Code, “‘bodily harm’ means any hurt or injury that interferes with the health or comfort of the person and that is more than merely transient and trifling in nature.” Deciding the Crown’s appeal on this question of law, the MBCA wrote:
What constitutes bodily harm within the meaning of s. 267 and s. 2 was considered by Esson J.A. in [R. v. Dixon (1988), 42 C.C.C. (3d) 318 (B.C.C.A.)], as follows (at pp. 331-32):[…] Transient, trifling and comfort are all words in common usage. […]
Clearly, as employed in s. 245.1(2) [now s. 267(b)], those words import a very short period of time and an injury of very minor degree which results in a very minor degree of distress.[…] The element of interference with comfort […] is all that the definition requires […]. The interference with comfort resulted from a significant injury — one which cannot be described as trifling. There is no necessary connection at all between the duration of the injury and the question whether it is trifling — a life-threatening injury is often resolved in a short time. Transient does relate to time but, in this context, it is simply insupportable to describe as transient an injury that “lasts no longer than a month”. […] [Emphasis removed]
The Court provided examples of injuries found by courts of appeal to constitute bodily harm within s. 2:
— scrapes, lacerations and bruises, especially around the eye and a large amount of hair which had been pulled out by the roots …;
— superficial injuries, consisting primarily of bruising and abrasions …;
— a number of bruises to the neck and arms, a number of lacerations to the face, chest, shoulder and wrist 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 …; and
— a sore neck that lasted for approximately one month … . [Citations omitted.]
The Court of Appeal further explained the standard of “bodily harm” by marking its upper boundary by referring to the Supreme Court of Canada’s interpretation of “serious bodily harm” in R v McCraw,  3 SCR 72:
[…] I would interpret “serious bodily harm” as being any hurt or injury that interferes in a grave or substantial way with the physical integrity or well-being of the complainant. Thus “serious bodily harm” does not require proof of the same degree of harm required for aggravated assault described in s. 268 of the Code; that is to say the wounding, disfiguring or endangering of the life of the complainant. Yet it requires greater harm than the mere “bodily harm” described in s. 267; that is hurt or injury that interferes with the health or comfort of the complainant and that is more than merely transient or trifling in nature.
It follows from the decision in McCraw that, to constitute bodily harm, an injury does not have to meet the standard of “interferes in a grave or substantial way with the physical integrity or well-being of the complainant,” that being the standard for serious bodily harm, which is a higher standard than bodily harm.
Commentary and Conclusion
In reversing the decision of the trial judge, the MBCA’s modest contribution to the case law is a clarification that the definition of “bodily harm” does not incorporate a functional analysis; that is to say, “bodily harm” does not require a functional impairment. According to the Court of Appeal and contrary to the trial judge’s findings, “[o]ne does not have to be prevented from eating for a sore throat to interfere with one’s comfort [or health] and, thereby, constitute bodily harm, where the sore throat is the result of an assault”; also, one does not have to go so far as to ask “whether the bruising to [an] arm interfered with use of [the] arm in any way”. The Court of Appeal thus found that all of the above assaults had reached the level of “bodily harm.”
Taking the definition of “bodily harm” under s. 2 of the Criminal Code for its plain unfettered meaning, as the MBCA rightly did here, my cursory impression is that just about any amount of physical contact beyond that amounting to, say, a jostle could not help but satisfy the component of this higher offence that it “interfere[…] with the health or comfort of the person.” Disproportionate attention will therefore likely fall on the limiting de minimis component of the offence: whether the injury from the assault was “more than merely transient and trifling in nature.”
If that is the case, it will naturally fall to other courts to further refine the definition of bodily harm in future cases; thus, despite the MBCA subjecting s. 276(b) to lengthy and substantial scrutiny, it seems precisely defining “bodily harm” will still cause the legal community some distress… for an as-yet undetermined period of time.