Despite not being an animal abuse case, this appeal does contain a concise overview on what is required for proving an assault causing bodily harm charge and may be of use when prosecuting animal cruelty.
The offender had been brought before the trial judge on robbery charges, as well as common assault, assault causing bodily harm, and aggravated assault due to an altercation involving a bicycle once owned by the offender. He testified at trial that the bike was his and admitted to striking the victim but said he did not expect to knock them out and that he was only defending his property.
Police who attended the scene had found the victim unconscious, confused and dizzy, with a one-inch laceration on the top right side of his head, with photos taken at the hospital showing the victim’s face covered in dried blood and head wrapped in gauze. Defence counsel argued that the victim’s prior physical condition had not been established and it had not been proven that the injuries described by police witnesses were caused by the offender. The trial judge convicted the offender of common assault but not of the more serious offences of aggravated assault or assault causing bodily harm, stating that:
“I am mindful that the police found [the victim] to be unconscious when he was found on the ground. When he was observed at the hospital sometime later, he was conscious and pictures were taken of his condition. However, when it comes to whether this injury rises to the standard of bodily harm, I have no evidence as to how the injury suffered by [the victim] affected either his health or comfort beyond what is considered transient or trifling… without further evidence as to how his health or comfort was affected, I am unable to determine or infer whether the injury he suffered equated to bodily harm according to Section 2” (para. 8).
The Crown appealed the acquittal of the more serious offences, arguing that the trial judge erred in law by failing to find that the injuries sustained by the complainant met the legal definition of bodily harm. At issue on appeal was whether the trial judge erred in concluding that the offence of assault causing bodily harm had not been proven beyond a reasonable doubt.
The Court reviewed the definition of bodily harm under the Criminal Code and the evidence required to prove it, referring to case law which ranges from fainting to superficial bruising, lacerations and pulling of hair (para. 19). It concluded that the trial judge had accepted that the victim had been conscious prior to the assault and not after, and that the altercation produced a laceration with significant bleeding, which amounted to more than trifling injuries, and went on to explain:
[22] Testimony from [the victim]’s treating physician was not required to establish that [the victim] had suffered bodily harm, because the evidence accepted by the Court proved that [the victim] was knocked out and left with a cut that caused significant bleeding. It does not take the testimony of a person with medical training to describe a bruise, a cut, or that someone was found unconscious. It does not take evidence from a medical expert, or even the complainant, to conclude that these injuries affected the health and comfort of [the victim] and were more than trifling in nature. Bodily harm can be inferred from the nature of the injuries sustained which, in this case, were proven beyond a reasonable doubt by the evidence.
[23] Simply put, expert evidence or medical evidence is not required before making a finding of bodily harm.
The Court found that the trial judge had erred in his application of the definition of bodily harm to the facts. The appeal was allowed, with the conviction for assault substituted for a conviction for assault causing bodily harm, and the matter was remitted to the trial judge for sentencing.
https://canlii.ca/t/kg9mz