Assault Causing Bodily Harm

What Is Assault Causing Bodily Harm?

Assault causing bodily harm is an offence under section 267(b) of the Criminal Code of Canada. The charge can arise when a person commits an assault and causes bodily harm to the victim. This distinguishes it from common assault, where the Crown does not have to establish bodily harm. However, not every injury automatically amounts to bodily harm for the purposes of the Criminal Code.

What Does “Bodily Harm” Mean?

The Criminal Code defines bodily harm as a hurt or injury that interferes with a person’s health or comfort and is more than merely transient or trifling in nature.

That definition is important. A person does not necessarily have to suffer a permanent or life-threatening injury for an allegation to qualify as assault causing bodily harm. At the same time, very minor or fleeting discomfort may not necessarily meet the legal threshold.

Whether an injury constitutes bodily harm depends on the nature of the injury and the evidence surrounding it. Medical records, photographs, witness testimony and the complainant’s description of their symptoms can all become relevant.

Examples of Injuries That May Lead to an Assault Causing Bodily Harm Charge

There is no single list of injuries that automatically results in this charge. Depending on the circumstances, allegations may involve injuries such as:

• very significant bruising;
• cuts or lacerations;
• broken or damaged teeth;
• fractures;
• concussions;
• injuries requiring stitches;
• prolonged pain or discomfort;
• injuries requiring medical treatment; or
• other physical harm that is more than merely temporary or insignificant.

The seriousness of an injury is ultimately assessed in the context of the evidence. The fact that someone attended a hospital does not automatically establish bodily harm, just as the absence of hospitalization does not necessarily mean bodily harm did not occur.

How Is Assault Causing Bodily Harm Different From Simple Assault?

The primary difference is the additional element of bodily harm. Simple assault under section 266 can involve an intentional application of force without consent even where the complainant suffers little or no injury. Assault causing bodily harm requires the Crown to establish an assault and bodily harm resulting from it. That additional element generally makes the allegation more serious.

For example, a brief physical confrontation involving a push may potentially result in a simple assault charge. If that same incident results in a significant injury, police may instead lay a charge of assault causing bodily harm depending on the circumstances.

The appropriate charge depends on the evidence, not simply the fact that physical contact occurred.

What Does the Crown Have to Prove?

To obtain a conviction for assault causing bodily harm, the Crown must prove the offence beyond a reasonable doubt. The prosecution generally needs to establish that:

1. an assault occurred;
2. the accused was responsible for the assault;
3. the complainant suffered bodily harm; and
4. the bodily harm resulted from the assault.

Each of these elements can create issues for the defence. The accused may dispute that an assault occurred at all. The defence may argue that the physical contact was accidental, that the accused acted in self-defence or that the prosecution cannot reliably establish who caused the injury. In other cases, the central question may be whether the alleged injury actually meets the legal definition of bodily harm.

What Is the Penalty for Assault Causing Bodily Harm?

Assault causing bodily harm is a hybrid offence. This means the Crown can elect to proceed by indictment or by summary conviction depending on the circumstances.

If prosecuted by indictment, section 267 provides for a maximum sentence of 10 years’ imprisonment. A maximum sentence does not mean that someone convicted of the offence will automatically receive that sentence. Actual sentencing depends on numerous factors, including:

• the seriousness of the injuries;
• the circumstances of the assault;
• whether a weapon was involved;
• the accused’s criminal record;
• the relationship between the parties;
• aggravating or mitigating circumstances;
• the accused’s personal circumstances; and
• the manner in which the Crown proceeds.

Possible consequences can range considerably from one case to another.

Can You Go to Jail for Assault Causing Bodily Harm?

Yes. Jail is a possible consequence of conviction, particularly where the allegations are serious or aggravating factors are present. However, imprisonment is not automatic simply because someone has been charged with assault causing bodily harm.

The outcome of a case depends on the evidence, whether the charge is proven and, if there is a conviction, the circumstances considered at sentencing. This is one reason the individual facts of the case matter significantly.

Other Consequences of a Conviction

The potential consequences extend beyond the sentence imposed by the court. A conviction can potentially affect:

• employment;
• professional licensing;
• immigration status;
• travel;
• firearms possession;
• volunteer opportunities;
• family proceedings; and
• future interactions with the criminal justice system.

For someone without a previous criminal record, these secondary consequences can be particularly significant. The potential impact of a conviction should therefore be considered when assessing how the case should be defended or resolved.

How Are Assault Causing Bodily Harm Cases Investigated?

Police investigations can involve considerably more evidence than statements from the accused and complainant. Depending on the circumstances, investigators may collect:

• photographs of injuries;
• medical records;
• emergency-room records;
• witness statements;
• surveillance footage;
• cellphone video;
• 911 recordings;
• text messages;
• social media communications;
• police body-camera footage; and
• physical evidence from the scene.

The defence should examine this evidence rather than relying solely on the description of the incident contained in the charge. Objective evidence can sometimes support the complainant’s account, but it can also reveal inconsistencies or provide important context that was missing from initial statements.

Medical Evidence in an Assault Causing Bodily Harm Case

Medical evidence can be particularly important because bodily harm is an element of the offence. The Crown may rely on medical records, photographs or testimony concerning the complainant’s injuries. However, medical evidence should be examined carefully. Important questions can include:

• What injury was actually diagnosed?
• When did the complainant seek treatment?
• What did the complainant report to medical professionals?
• Is the injury consistent with the alleged assault?
• Could the injury have occurred another way?
• How long did symptoms continue?
• Did the injury interfere with the complainant’s health or comfort?
• Is there evidence showing the injury was minor or short-lived?

The existence of an injury does not automatically resolve how it occurred or who caused it.

Defences to Assault Causing Bodily Harm

The appropriate defence depends on the circumstances of the case. There is no single defence that applies to every charge. Potential issues can include self-defence, identity, accidental contact, credibility, causation and whether the alleged injury meets the legal definition of bodily harm.

Self-Defence

Self-defence may apply where the accused reasonably believed that force or a threat of force was being used against them or another person, acted for a defensive purpose and their conduct was reasonable in the circumstances.

The fact that the other person was injured does not automatically eliminate self-defence. The court considers the circumstances surrounding the confrontation, including factors such as:

• the nature of the threat;
• how imminent the threat was;
• whether weapons were involved;
• the accused’s role in the incident;
• the physical capabilities of the people involved;
• the history between the parties;
• whether other options were available; and
• the nature of the accused’s response.

In a bodily harm case, injuries to both the complainant and accused can potentially become relevant to understanding what occurred.

Disputing Whether Bodily Harm Occurred

Another potential issue is whether the injury actually satisfies the Criminal Code definition of bodily harm. The prosecution must prove that an injury is more than just merely transient or trifling.

The defence may therefore examine the severity, duration and actual effect of the alleged injury. Medical records and other evidence can become important where the extent of harm is disputed.

Causation

The Crown must connect the alleged bodily harm to the assault. This can become an issue where:

• several people were involved in a confrontation;
• the complainant fell after the incident;
• the complainant had a pre-existing injury;
• multiple physical interactions occurred;
• the cause of the injury is unclear; or
• the medical evidence does not clearly establish how the injury occurred.

The fact that an injury exists does not necessarily prove that the accused caused it.

Accident

Assault generally requires intentional physical conduct. If the contact itself was accidental, the prosecution may have difficulty proving the underlying assault.

An allegation could arise from a chaotic confrontation where people collide, someone falls or an accused attempts to move away from another person. Video evidence and independent witnesses can be particularly important where the defence disputes that the accused intentionally applied force.

Mistaken Identity

In incidents involving multiple people, identification can become an important issue. A fight outside a bar, a crowded event or a rapidly developing confrontation may involve several people and limited opportunities for witnesses to observe what happened. The defence may examine:

• surveillance footage;
• cellphone recordings;
• witness descriptions;
• inconsistencies in identification;
• lighting and visibility;
• how long witnesses observed the incident; and
• the accused’s location.

The Crown must establish beyond a reasonable doubt that the accused was responsible for the assault.

Credibility and Conflicting Accounts

Many assault causing bodily harm cases involve significantly different versions of the same incident. The complainant may say the accused attacked without provocation, while the accused may describe acting in self-defence or provide an entirely different sequence of events.

The defence can examine whether a witness’s account is consistent with:

• previous statements;
• photographs;
• injuries;
• medical records;
• surveillance footage;
• independent witnesses;
• text messages; and
• other objective evidence.

Where significant inconsistencies exist, they may affect whether the Crown can prove the case beyond a reasonable doubt.

What If Both People Were Injured?

The fact that both people suffered injuries can be highly relevant. It does not automatically determine who committed an offence or who acted in self-defence. Instead, the injuries should be considered alongside the complete circumstances of the incident.

For example, injuries suffered by an accused may support their description of being attacked, but the nature, timing and cause of those injuries still need to be established.

Photographs and medical documentation of an accused person’s injuries should therefore be preserved where relevant.

What If the Complainant Started the Fight?

The fact that another person initiated a confrontation can be important, particularly when assessing self-defence. However, it does not create an unrestricted right to use force. The legal question remains whether the requirements for self-defence were met and whether the accused’s actions were reasonable in the circumstances.

The complete sequence of events matters, including what occurred immediately before the physical confrontation.

Can the Complainant Drop the Charge?

No, not directly. Once police have laid a criminal charge, the prosecution is controlled by the Crown. A complainant can tell police or the Crown that they no longer want the case to continue, but they cannot personally withdraw the criminal charge. The Crown determines whether the prosecution will proceed.

This distinction can be especially important where the complainant and accused know one another or are in a relationship. Any release conditions, including no-contact conditions, remain in effect unless formally changed.

Can Assault Causing Bodily Harm Charges Be Withdrawn?

Potentially. An assault causing bodily harm charge does not automatically lead to a conviction or trial. After reviewing the disclosure, a defence lawyer may identify issues involving:

• the strength of the assault allegation;
• credibility;
• self-defence;
• causation;
• the seriousness of the injury;
• identification;
• Charter violations; or
• other weaknesses in the prosecution’s case.

Depending on the circumstances, possible outcomes can include withdrawal, a negotiated resolution, an alternative resolution or an acquittal following trial.

The appropriate approach depends on the evidence and the client’s circumstances.

What Evidence Should You Preserve?

If you are charged with assault causing bodily harm, potentially useful evidence should be preserved as early as possible. This can include:

• photographs of your own injuries;
• text messages;
• videos;
• photographs;
• social media messages;
• names and contact information for witnesses;
• receipts;
• location information; and
• information identifying nearby surveillance cameras.

Surveillance footage is particularly time-sensitive because businesses and property owners may automatically overwrite recordings. Avoid deleting or modifying material simply because you think it is unhelpful. A lawyer should be able to review the evidence in context.

What Should You Do After Being Charged?

First, obtain legal advice. An assault causing bodily harm allegation can involve significant consequences, and decisions made early in the process may affect the defence later.

Second, comply with all release conditions. Do not contact anyone you are prohibited from contacting, even if that person contacts you first.

Third, preserve relevant evidence and make note of potential witnesses while the incident is still relatively fresh in your memory.

Finally, avoid discussing the allegations publicly or posting about them on social media.

How De Boyrie Law Defends Assault Causing Bodily Harm Charges

Defending an assault causing bodily harm charge begins with examining both parts of the allegation: the alleged assault and the alleged bodily harm. At De Boyrie Law, preparing a defence may include:

• reviewing disclosure;
• analyzing police and witness statements;
• reviewing photographs and medical evidence;
• identifying inconsistencies in the complainant’s account;
• assessing whether the injury meets the definition of bodily harm;
• examining whether the accused actually caused the injury;
• obtaining surveillance or cellphone footage;
• identifying witnesses;
• assessing self-defence;
• examining identification evidence;
• reviewing police conduct for potential Charter issues;
• communicating with the Crown;
• pursuing an appropriate resolution where available; and
• preparing the case for trial where necessary.

The defence strategy should be based on the actual evidence rather than assumptions about what happened simply because an injury occurred.

Frequently Asked Questions About Assault Causing Bodily Harm

Is Assault Causing Bodily Harm an Indictable Offence?

It can be. Assault causing bodily harm under section 267(b) is a hybrid offence, meaning the Crown can proceed either by indictment or by summary conviction. If prosecuted by indictment, the maximum penalty is 10 years’ imprisonment.

Does the Injury Have to Be Permanent?

No. The Criminal Code does not require permanent injury. The injury must interfere with the person’s health or comfort and be more than merely transient or trifling.

Is a Bruise Bodily Harm?

Potentially, but not automatically. Whether bruising constitutes bodily harm depends on factors such as its seriousness, duration and effect on the complainant’s health or comfort. The evidence concerning the actual injury matters.

Is a Broken Nose Assault Causing Bodily Harm?

A fracture can potentially support an assault causing bodily harm charge. However, the Crown must still prove the underlying assault and establish that the accused caused the injury. The existence of a broken nose alone does not establish every element of the offence.

Can You Be Charged If the Injury Was Accidental?

The circumstances matter. If the underlying physical contact was genuinely accidental, that may affect whether an assault occurred. If an intentional assault occurred but an injury unexpectedly resulted, different legal considerations may arise. A lawyer can examine the specific evidence to determine what the Crown is required to prove.

What Is the Difference Between Assault Causing Bodily Harm and Aggravated Assault?

Both involve more serious allegations than common assault, but aggravated assault has a higher legal threshold. Under section 268 of the Criminal Code, aggravated assault involves wounding, maiming or disfiguring the complainant or endangering their life. Assault causing bodily harm under section 267(b) applies where the complainant suffers bodily harm meeting the Criminal Code definition but the circumstances do not necessarily rise to aggravated assault.

Can Self-Defence Apply Even If the Other Person Was Seriously Injured?

Potentially. An injury to the complainant does not automatically prevent self-defence from applying. The court considers whether the accused reasonably perceived force or a threat of force, acted for a defensive purpose and responded reasonably in the circumstances.

Can This Charge Be Reduced to Simple Assault?

Potentially. Depending on the evidence and circumstances, questions about the seriousness of the injury or other aspects of the case may affect how the charge is ultimately resolved. A reduction is not automatic and depends on the individual case and discussions with the Crown.

Speak With an Assault Causing Bodily Harm Lawyer

Being charged with assault causing bodily harm does not mean the Crown can prove the allegation. The evidence must establish both the assault and the bodily harm required by section 267.

A defence may involve self-defence, challenging the extent or cause of the injuries, credibility issues, identification evidence, accidental contact or another issue arising from the circumstances.

De Boyrie Law represents individuals charged with assault causing bodily harm and other serious assault offences.

Call (647) 931-0248 or request a free consultation to discuss your case.