TORONTO CRIMINAL and DUI LAWYERS
FAQ - Assault Causing Bodily Harm
1. What type of assault causing bodily harm is being discussed by these questions and answers?
The criminal assault causing bodily harm, rather that the tort of assault causing bodily harm, is being discussed by these questions and answers.
2. What are the essential elements of assault causing bodily harm?
The essential elements of assault causing bodily harm differ from the essential elements of the aggravated assault only in the nature of the injury required to establish the assault causing bodily harm.¹
The essential elements of assault causing bodily harm are that the accused intentionally applied force to the complainant; that the complainant did not consent to the force that the accused applied; that the accused knew that the complainant did not consent to the force that the accused applied; and that the force that the accused applied caused bodily harm to the complainant.²
¹ "R. v. Palombi, 2007 ONCA 486" https://coadecisions.ontariocourts.ca/coa/coa/en/item/6964/index.do at para 39.
² "R. v. Francis, 2026 ONSC 2888 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2014/2014oncj21/2014oncj21.html at para 57.
3. What is bodily harm, in this context?
Bodily harm means any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.³
³ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 2.
4. What is the actus reus of assault causing bodily harm?
The actus reus of assault causing bodily harm is that the accused intentionally apply force against a complainant without the complainant's consent and the applied force caused bodily harm to the complainant.⁴
⁴ Cf, "R. v. Macciacchera, 2018 ONCJ 743 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2018/2018oncj743/2018oncj743.html at para 72, as clarified by "R. v. Theriault, 2021 ONCA 554" https://coadecisions.ontariocourts.ca/coa/coa/en/item/19851/index.do at paras 55, 61.
5. What is the mens rea of assault causing bodily harm?
The mens rea for assault causing bodily harm is the mens rea for assault plus the objective foreseeability of bodily harm as a consequence of the assaultative conduct.⁵ The mens rea for assault is the intent to apply force intentionally or recklessly or being wilfully blind to the fact that the complainant does not consent to the application of force.⁶
⁵ "R. v. Caron, 2009 ONCJ 192 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2009/2009oncj192/2009oncj192.html at para 25, read in context with "R. v. Macciacchera, 2018 ONCJ 743 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2018/2018oncj743/2018oncj743.html at para 72, "R. v. Groot" https://coadecisions.ontariocourts.ca/coa/coa/en/item/295/index.do at para 26, and "R. v. Seip, 2021 ONCA 101" https://coadecisions.ontariocourts.ca/coa/coa/en/item/19416/index.do at para 7.
⁶ "R. v. Williams, [2003] 2 S.C.R. 134, 2003 SCC 41" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2074/index.do at para 22.
6. When is objective foresight of bodily harm established, in this context?
Objective foresight of bodily harm is established when a reasonable person would foresee that the accused's actions would put the complainant at risk of suffering some kind of bodily harm, meaning any hurt or injury to the complainant that interferes with the complainant's health or comfort and is more than merely transient or trifling in nature.⁷
⁷ "R. v. Palombi, 2007 ONCA 486" https://coadecisions.ontariocourts.ca/coa/coa/en/item/6964/index.do at para 38, as further interpreted in "R. v. Powell, 2021 ONCA 271" https://coadecisions.ontariocourts.ca/coa/coa/en/item/19580/index.do at paras 3, 5-6, 51.
7. When can an accused who is involved in an intentional assault that results in bodily harm successfully argue that the accused only intended the assault and not the bodily harm that resulted from the assault?
An accused who is involved in an intentional assault that results in bodily harm can successfully argue that the accused only intended the assault and not the bodily harm that resulted from the assault when a reasonable person, in the circumstances, would realize that the force intentionally applied would put the victim at risk of suffering some kind of bodily harm.⁸
⁸ "R. v. Powell, 2021 ONCA 271" https://coadecisions.ontariocourts.ca/coa/coa/en/item/19580/index.do at paras 3, 5-6, 51.
8. What happens when an accused is acquitted of assault causing bodily harm because there is a reasonable doubt about whether the bodily harm from the accused's application of force was objectively foreseeable but no reasonable doubt that the accused intentionally applied force against a complainant without the complainant's consent?
When an accused is acquitted of assault causing bodily harm because there is a reasonable doubt about whether the bodily harm from the accused's application of force was objectively foreseeable but no reasonable doubt that the accused intentionally applied force against a complainant without the complainant's consent, the accused can be convicted of the included offence of assault.⁹
⁹ "R. v. Groot" https://coadecisions.ontariocourts.ca/coa/coa/en/item/295/index.do at paras 1-5, 26-27.
9. Can recklessness establish the intention required to make an assault causing bodily harm intentional and criminal in Ontario?
Although Ontarian jurisprudence differs about whether recklessness can establish the intention required to make an assault intentional and criminal in Ontario, some Ontarian jurisprudence says that recklessness can establish the intention required to make an assault intentional and criminal in Ontario,¹⁰ meaning that some Ontarian jurisprudence says that recklessness can establish the intention required to make an assault causing bodily harm intentional and criminal in Ontario.
¹⁰ "R. v. Sabourin, 2025 ONCJ 567 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2025/2025oncj567/2025oncj567.html at paras 37-50.
10. What is recklessness, in these contexts?
Recklessness is a form of subjective fault distinct from both negligence and wilful blindness, and refers to the state of mind of an accused who, aware that there is danger that the accused's conduct could bring about the result prohibited by the criminal law, nevertheless persists despite the risk.¹¹ Culpability for recklessness is justified by the accused's proceeding despite consciousness of the risk.¹²
¹¹ "R. v. Fox, 2023 ONCA 674" https://coadecisions.ontariocourts.ca/coa/coa/en/item/21796/index.do at para 25.
¹² "R. v. Fox, 2023 ONCA 674" https://coadecisions.ontariocourts.ca/coa/coa/en/item/21796/index.do at para 25.
11. What is wilful blindness, in this context?
Wilful blindness does not define the mens rea required for particular offences, but can substitute for actual knowledge whenever knowledge is a component of the offence's mens rea.¹³ The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where the accused sees the need for further inquiries, but deliberately chooses not to make those inquiries.¹⁴ Wilful blindness is not merely a failure to inquire but is deliberate ignorance.¹⁵ Wilful blindness is distinct from recklessness.¹⁶ Wilful blindness is a higher standard than recklessness.¹⁷ Wilful blindness arises when a person who has become aware of the need for some inquiry declines to make the inquiry because the person does not wish to know the truth and would prefer to remain ignorant.¹⁸
¹³ "R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7852/index.do at para 21.
¹⁴ "R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7852/index.do at para 21.
¹⁵ "R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7852/index.do at para 24.
¹⁶ "R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7852/index.do at paras 22-23.
¹⁷ "R. v. Fox, 2023 ONCA 674" https://coadecisions.ontariocourts.ca/coa/coa/en/item/21796/index.do at para 25.
¹⁸ "R. v. Fox, 2023 ONCA 674" https://coadecisions.ontariocourts.ca/coa/coa/en/item/21796/index.do at para 25.
12. Can a complainant consent to an assault causing bodily harm?
Although a complainant cannot consent to the intentional infliction of bodily harm, just because bodily harm is caused does not mean that the complainant could not have consented to what would otherwise be an unlawful assault, and a trier of fact should not be distracted by the complainant's injury's seriousness from determining whether the complainant consented to the assault causing bodily harm.¹⁹
¹⁹ "R. v Jackson, 2016 ONSC 5504 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2025/2025oncj567/2025oncj567.html at paras 1-3, 11-20.
13. When is a complainant's consent legally invalid?
No consent is obtained where the complainant submits to an assault or does not resist the assault by reason of the application of force to the complainant or to a person other than the complainant;²⁰ threats or fear of the application of force to the complainant or to a person other than the complainant;²¹ fraud;²² or the exercise of authority.²³
²⁰ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 265(3), 265(3)(a).
²¹ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 265(3), 265(3)(b).
²² "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 265(3), 265(3)(c).
²³ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 265(3), 265(3)(d).
14. Can legally valid consent arise in an incident of domestic violence?
Although the threshold for legally valid consent is higher in an incident of domestic violence, there is no absolute prohibition against legally valid consent's being given during an incident of domestic violence.²⁴ In the context of a consensual domestic fight, any intentional application of force capable of causing an injury that is more than trivial is not sheltered from criminal liability.²⁵
²⁴ "R. v. Ram, 2022 ONCJ 347 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2022/2022oncj347/2022oncj347.html at paras 2-4, 28.
²⁵ "R. v. Ram, 2022 ONCJ 347 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2022/2022oncj347/2022oncj347.html at para 28.
15. What if an assault causing bodily harm is a reflexive action?
A reflexive action can negate both actus reus and mens rea for the crime of assault.²⁶ A reflexive action can be an involuntary act over which the accused has no control, which negates the assault's actus reus.²⁷ A reflexive action also can be an accused's immediate and unpremeditated response to an external stimulus, meaning that although the accused acted voluntarily, the accused's voluntary action was done without conscious thought, which negates the assault's mens rea.²⁸ When the accused's action is purely an electrochemical response to external stimuli, the accused's action is an involuntary reflex which fails to engage the actus reus of the offence of assault.²⁹ Where the accused's action is an immediate reaction taken without consideration or conscious thought by the accused, the accused's action is an unintended application of force which fails to engage the mens rea of the offence of assault.³⁰
These same principles apply to an assault causing bodily harm.
²⁶ "R. v. Lemieux, 2024 ONSC 1878 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2024/2024onsc1878/2024onsc1878.html at para 50.
²⁷ "R. v. Lemieux, 2024 ONSC 1878 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2024/2024onsc1878/2024onsc1878.html at para 50.
²⁸ "R. v. Lemieux, 2024 ONSC 1878 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2024/2024onsc1878/2024onsc1878.html at para 50.
²⁹ "R. v. Feng, 2020 ONCJ 593 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2020/2020oncj593/2020oncj593.html at paras 33-37.
³⁰ "R. v. Feng, 2020 ONCJ 593 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2020/2020oncj593/2020oncj593.html at paras 33-37.
16. What if an assault causing bodily harm is done in order to defend a person?
An accused is not guilty of an offence if the accused believes on reasonable grounds that force is being used against the accused or another person or that a threat of force is being made against the accused or another person;³¹ the act that constitutes the offence is committed for the purpose of defending or protecting the accused or the other person from that use or threat of force;³² and the act committed is reasonable in the circumstances.³³
In determining whether the act committed is reasonable in the circumstances, the Court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: the nature of the force or threat;³⁴ the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;³⁵ the accused's role in the incident;³⁶ whether any party to the incident used or threatened to use a weapon;³⁷ the size, age, gender and physical capabilities of the parties to the incident;³⁸ the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;³⁹ any history of interaction or communication between the parties to the incident;⁴⁰ the nature and proportionality of the accused's response to the use or threat of force;⁴¹ and whether the act committed was in response to a use or threat of force that the accused knew was lawful.⁴²
This defence of self-defence does not apply if the force is used or threatened by another person for the purpose of doing something that the person required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.⁴³
The same three basic issues arise in all cases of self-defence: whether the accused reasonably believed that force or a threat of force was being used against the accused or someone else; whether the subjective purpose for responding to the threat was to protect the accused or other people; and whether the accused's act was reasonable in the circumstances.⁴⁴ These three inquiries can usefully be conceptualized as the catalyst; the motive; and the response.⁴⁵
In the context of self-defence, the accused's belief must be held on reasonable grounds.⁴⁶
The question is what a reasonable person with the accused's relevant characteristics and experiences would perceive.⁴⁷ An honest but mistaken belief can nevertheless be reasonable and does not automatically bar a claim to self‑defence.⁴⁸ To say that a belief is unreasonable in the context of a self‑defence claim is to declare the accused's act criminally blameworthy.⁴⁹
Whether an accused can benefit from the defence of self-defence requires determining whether the accused subjectively engaged in the act was undertaken by the accused in order to defend or protect the accused or others from the use or threat of force.⁵⁰
The focus must be upon what a reasonable person would have done in comparable circumstances and not what a particular accused thought at the time.⁵¹
There is no requirement for the Crown to show that an accused's role in the incident was unreasonable before an accused's role in the incident may be considered as a factor in determining whether the act committed was reasonable.⁵²
When both parties are engaged in aggressive and confrontational behaviour, it is not necessary to find that only one party instigated, provoked, caused, or consented.⁵³ The accused's role in the incident includes acts and omissions, decisions taken and rejected, and alternative courses of action which may not have been considered, capturing the full range of human conduct from the helpful stranger and the innocent victim of an unprovoked assault to the initial and persistent aggressor and everything in between, encompassing not only provocative or unlawful conduct but also hotheadedness, the reckless escalation of risk, and a failure to reassess reasonably the situation as the situation unfolds.⁵⁴
The analytical purpose of considering the accused's role in the incident is the accused's role in the incident's relevance to the reasonableness assessment when there is something about what the accused did or did not do which led to a situation when the accused felt the need to resort to an otherwise unlawful act to defend the accused or another.⁵⁵ The act's ultimate reasonableness is coloured by whether the accused caused or contributed to the circumstances which the accused claims compelled the accused to respond.⁵⁶ When an accused opts to stand the accused's ground or advance while armed towards a perceived threat rather than de-escalating or reassessing the situation as new information becomes available, a trier of fact is entitled to account for this role when assessing the accused's ultimate act's reasonableness.⁵⁷ But "role in the incident" is not limited to conduct that would weigh against the reasonableness of the accused's act and when the accused plays a praiseworthy role in the incident, this may be a compelling factor supporting the conclusion that the accused's ultimate act was reasonable self-defence.⁵⁸
A trier of fact can conclude that self-defence is not disproven even though the accused escalated the incident that led to the victim's death, was mistaken about the existence of the use, of force and used disproportionate force.⁵⁹
An accused need not wait until the accused reasonably apprehends death or grievous bodily harm before resorting to deadly force.⁶⁰
In order for an accused to use the defence of self-defence, the accused must prove that self-defence has an air of reality, following which the Crown must disprove the accused's self-defence beyond a reasonable doubt.⁶¹
The inquiry into whether there is an evidential foundation for a defence is referred to as the air of reality test.⁶² The correct approach to the air of reality test is whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit.⁶³ When there is an air of reality to a defence, the defence should go to the trier of fact.⁶⁴ A defence which lacks an air of reality should be kept from the trier of fact even when the defence lacking an air of reality represents the accused's only chance for an acquittal.⁶⁵ A defence possesses an air of reality if a properly instructed jury acting reasonably could acquit the accused on the basis of the defence.⁶⁶ The air of reality test imposes a burden on the accused that is merely evidential, rather than persuasive.⁶⁷ The air of reality test is concerned only with whether a defence should be submitted to the trier of fact for consideration.⁶⁸
The air of reality test does not assess whether the defence is strong, but assesses whether the evidence discloses a real issue to be decided by the trier of fact.⁶⁹
Whether there is an air of reality to a defence is a question of law subject to appellate review.⁷⁰ It is an error of law to put to the trier of fact a defence lacking an air of reality and it is an error of law to keep from the trier of fact a defence that has an air of reality.⁷¹
In applying the air of reality test, a trial judge considers the totality of the evidence and assumes the evidence relied upon by the accused to be true.⁷² The evidential foundation can be indicated by evidence emanating from the examination in chief or cross-examination of the accused, of defence witnesses, or of Crown witnesses, can also rest upon the case's factual circumstances, or upon any other evidential source on the record.⁷³ There is no requirement that the evidence supporting the air of reality be adduced by the accused.⁷⁴
It is possible to use a defence of self-defence in response to a charge of assault causing bodily harm.⁷⁵
³¹ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(1), 34(1)(a).
³² "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(1), 34(1)(b).
³³ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(1), 34(1)(c).
³⁴ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(2), 34(2)(a).
³⁵ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(2), 34(2)(b).
³⁶ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(2), 34(2)(c).
³⁷ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(2), 34(2)(d).
³⁸ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(2), 34(2)(e).
³⁹ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(2), 34(2)(f).
⁴⁰ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(2), 34(2)(f.1).
⁴¹ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(2), 34(2)(g).
⁴² "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(2), 34(2)(h).
⁴³ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(1), 34(1)(a), 34(1)(b), 34(1)(c), 34(3).
⁴⁴ "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at para 37.
⁴⁵ "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at para 51.
⁴⁶ "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at para 53.
⁴⁷ "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at para 57.
⁴⁸ "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at para 57.
⁴⁹ "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at para 57.
⁵⁰ "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at paras 37, 59.
⁵¹ "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at para 65.
⁵² "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at para 69, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(1), 34(1)(c).
⁵³ "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at para 83, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(1), 34(1)(c).
⁵⁴ Cf, "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at para 84, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(1), 34(1)(c).
⁵⁵ "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at para 85.
⁵⁶ "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at para 87.
⁵⁷ "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at para 90.
⁵⁸ "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at para 101, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 34(1), 34(1)(c).
⁵⁹ "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at para 105.
⁶⁰ "R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do at para 104.
⁶¹ "R. v. B.F., 2025 SCC 41" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21301/index.do at para 51.
⁶² "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 50.
⁶³ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 49.
⁶⁴ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 51.
⁶⁵ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 51.
⁶⁶ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 2.
⁶⁷ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 52.
⁶⁸ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 52.
⁶⁹ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 54.
⁷⁰ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 55.
⁷¹ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 55.
⁷² "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 53.
⁷³ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 53.
⁷⁴ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 53.
⁷⁵ "R. v. Di Luciano, 2021 ONCJ 662 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2021/2021oncj662/2021oncj662.html at paras 1, 5-6, 19-20, 27, 35, 38-39.
17. Can a defence that an assault causing bodily harm was done in defence of a person accompany a defence that an assault was an accident?
Because a defence that an assault was done in defence of a person can accompany a defence that an assault was an accident,⁷⁶ a defence that an assault causing bodily harm was done in defence of a person can accompany a defence that an assault causing bodily harm was an accident.
⁷⁶ "R. v. Budhoo, 2015 ONCA 912" https://coadecisions.ontariocourts.ca/coa/coa/en/item/14409/index.do at paras 50-55.
18. What if an assault causing bodily harm is done in order to defend property?
An accused is not guilty of an offence if the accused either believes on reasonable grounds that the accused is in peaceable possession of property or is acting under the authority of, or lawfully assisting, a person whom the accused believes on reasonable grounds is in peaceable possession of property; the accused believes on reasonable grounds that another person is about to enter, is entering or has entered the property without being entitled by law to do so, is about to take the property, is doing so or has just done so, or is about to damage or destroy the property, or make it inoperative, or is doing so; the act that constitutes the offence is committed for the purpose of preventing the other person from entering the property, or removing that person from the property, or preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and the act committed is reasonable in the circumstances.⁷⁷ This defence of defence of property does not apply if the person who believes on reasonable grounds that the person is, or who is believed on reasonable grounds to be, in peaceable possession of the property does not have a claim of right to the property and the other person is entitled to the property's possession by law.⁷⁸ This defence of defence of property does not apply if the other person is doing something that the other person is required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.⁷⁹
The defence of defence of property is available when the act that constitutes the offence is committed for the purpose of removing a person who is not entitled to enter the property or preventing that person from taking property.⁸⁰
This defence of defence of property has four elements: the accused believes on reasonable grounds that the accused is in peaceable possession of property;⁸¹ threat to property; the protective purpose; and reasonable response.⁸²
Peaceable possession means possession acquiesced in by all other persons, including rival claimants, and not disturbed by any forcible attempt at ouster nor by adverse suits to recover the possession,⁸³ and does not prevent an accused from using the defence of defence of property when the accused, not physically possessing the property, believes that another person is unlawfully using the property.⁸⁴
The threat to property must be theft or damage or trespassing.⁸⁵ Even when an accused's property was not being threatened, the accused can benefit from the defence of defence of property when the accused believed on reasonable grounds that the property was being so threatened.⁸⁶
The protective purpose refers to the accused's motive, a specific intent, which must accompany the act which is alleged to be the offence.⁸⁷ The action in question must be subjectively for the purpose of protecting the property against theft, damage or trespass.⁸⁸ But an accused who assaults a trespasser who is in the process of leaving the property is not acting with the purpose of defending property against trespassers.⁸⁹
The response's reasonableness is objectively assessed.⁹⁰ The response's reasonableness is not measured according to a standard of perfection.⁹¹ An accused who responds to an actual or alleged threat to property by applying force rather than by first trying to address the problem through talking may be found to not be acting reasonably in the circumstances,⁹² but an accused who responds to what the accused reasonably believes is a theft by seizing the allegedly stolen property from the thief may be acting reasonably rather than engaging in the crime of assault.⁹³
The accused must show that every element of the defence of defence of property has an air of reality,⁹⁴ after which the burden shifts to the Crown to prove beyond a reasonable doubt that at least one element of the defence of defence of property is absent.⁹⁵
The inquiry into whether there is an evidential foundation for a defence is referred to as the air of reality test.⁹⁶ The correct approach to the air of reality test is whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit.⁹⁷ When there is an air of reality to a defence, the defence should go to the trier of fact.⁹⁸ A defence which lacks an air of reality should be kept from the trier of fact even when the defence lacking an air of reality represents the accused's only chance for an acquittal.⁹⁹ A defence possesses an air of reality if a properly instructed jury acting reasonably could acquit the accused on the basis of the defence.¹⁰⁰ The air of reality test imposes a burden on the accused that is merely evidential, rather than persuasive.¹⁰¹ The air of reality test is concerned only with whether a defence should be submitted to the trier of fact for consideration.¹⁰²
The air of reality test does not assess whether the defence is strong, but assesses whether the evidence discloses a real issue to be decided by the trier of fact.¹⁰³
Whether there is an air of reality to a defence is a question of law subject to appellate review.¹⁰⁴ It is an error of law to put to the trier of fact a defence lacking an air of reality and it is an error of law to keep from the trier of fact a defence that has an air of reality.¹⁰⁵
In applying the air of reality test, a trial judge considers the totality of the evidence and assumes the evidence relied upon by the accused to be true.¹⁰⁶ The evidential foundation can be indicated by evidence emanating from the examination in chief or cross-examination of the accused, of defence witnesses, or of Crown witnesses, can also rest upon the case's factual circumstances, or upon any other evidential source on the record.¹⁰⁷ There is no requirement that the evidence supporting the air of reality be adduced by the accused.¹⁰⁸
It is possible to use a defence of defence of property in response to a charge of assault causing bodily harm.¹⁰⁹
⁷⁷ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 35(1), 35(1)(a), 35(1)(b), 35(1)(b)(i), 35(1)(b)(ii), 35(1)(c)(i), 35(1)(c)(ii), 35(1)(d).
⁷⁸ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 35(1), 35(1)(a), 35(1)(b), 35(1)(b)(i), 35(1)(b)(ii), 35(1)(c)(i), 35(1)(c)(ii), 35(1)(d), 35(2).
⁷⁹ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 35(1), 35(1)(a), 35(1)(b), 35(1)(b)(i), 35(1)(b)(ii), 35(1)(c)(i), 35(1)(c)(ii), 35(1)(d), 35(3).
⁸⁰ "R. v. La Force, 2019 ONCA 522" https://coadecisions.ontariocourts.ca/coa/coa/en/item/17958/index.do at para 9, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 35(1), 35(1)(a), 35(1)(b), 35(1)(b)(i), 35(1)(b)(ii), 35(1)(c)(i), 35(1)(c)(ii), 35(1)(d).
⁸¹ "R. v. Wickham, 2025 ONCJ 461 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2025/2025oncj461/2025oncj461.html at para 21, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 35(1), 35(1)(a), 35(1)(b), 35(1)(b)(i), 35(1)(b)(ii), 35(1)(c)(i), 35(1)(c)(ii), 35(1)(d).
⁸² "R. v. P.B., 2023 ONCJ 498 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2023/2023oncj498/2023oncj498.html at para 23, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 35(1), 35(1)(a), 35(1)(b), 35(1)(b)(i), 35(1)(b)(ii), 35(1)(c)(i), 35(1)(c)(ii), 35(1)(d).
⁸³ "R. v. Green, 2017 ONCJ 705 (CanLII)" hhttps://www.canlii.org/en/on/oncj/doc/2017/2017oncj705/2017oncj705.html at paras 75-78.
⁸⁴ "R. v. P.B., 2023 ONCJ 498 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2023/2023oncj498/2023oncj498.html at paras 7, 19, 23, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 35(1), 35(1)(a), 35(1)(b), 35(1)(b)(i), 35(1)(b)(ii), 35(1)(c)(i), 35(1)(c)(ii), 35(1)(d).
⁸⁵ "R. v. Green, 2017 ONCJ 705 (CanLII)" hhttps://www.canlii.org/en/on/oncj/doc/2017/2017oncj705/2017oncj705.html at paras 74-75, 80.
⁸⁶ See, e.g., "R. v. Trudeau, 2017 ONCJ 793 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2017/2017oncj793/2017oncj793.html at para 93.
⁸⁷ "R. v. Edowen, 2021 ONSC 2157 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2021/2021onsc2157/2021onsc2157.html at para 30.
⁸⁸ "R. v. Green, 2017 ONCJ 705 (CanLII)" hhttps://www.canlii.org/en/on/oncj/doc/2017/2017oncj705/2017oncj705.html at paras 74-75, 80.
⁸⁹ "R. v. Trudeau, 2017 ONCJ 793 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2017/2017oncj793/2017oncj793.html at paras 93-96.
⁹⁰ "R. v. Green, 2017 ONCJ 705 (CanLII)" hhttps://www.canlii.org/en/on/oncj/doc/2017/2017oncj705/2017oncj705.html at para 74.
⁹¹ "R. v. Wickham, 2025 ONCJ 461 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2025/2025oncj461/2025oncj461.html at para 42.
⁹² "R. v. Sabourin, 2025 ONCJ 567 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2025/2025oncj567/2025oncj567.html at para 53.
⁹³ "R. v. P.B., 2023 ONCJ 498 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2023/2023oncj498/2023oncj498.html at paras 7, 19-23.
⁹⁴ "R. v. Wickham, 2025 ONCJ 461 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2025/2025oncj461/2025oncj461.html at paras 21-22.
⁹⁵ "R. v. Wickham, 2025 ONCJ 461 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2025/2025oncj461/2025oncj461.html at paras 21-23.
⁹⁶ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 50.
⁹⁷ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 49.
⁹⁸ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 51.
⁹⁹ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 51.
¹⁰⁰ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 2.
¹⁰¹ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 52.
¹⁰² "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 52.
¹⁰³ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 54.
¹⁰⁴ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 55.
¹⁰⁵ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 55.
¹⁰⁶ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 53.
¹⁰⁷ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 53.
¹⁰⁸ "R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 53.
¹⁰⁹ "R. v. Macciacchera, 2018 ONCJ 743 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2018/2018oncj743/2018oncj743.html at paras 20, 24, 26, 67-70, 82.
19. What if an assault causing bodily harm is done against a child or a student?
Every schoolteacher, parent, or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under the person's care, if the force does not exceed what is reasonable under the circumstances.¹¹⁰ This is what I name the defence of reasonable correction. But because force which is reasonable under the circumstances is force that results neither in bodily harm nor in the prospect of bodily harm,¹¹¹ the defence of reasonable correction cannot apply to a charge of assault causing bodily harm.
¹¹⁰ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 43.
¹¹¹ "Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, 2004 SCC 4" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2115/index.do at para 30.
20. What if an assault causing bodily harm is done while the accused is mentally ill?
No person is criminally responsible for an act committed or an omission made while the person is suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that the act or omission was wrong.¹¹² Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility until the contrary is proved on the balance of probabilities.¹¹³ Proof on a balance of probabilities means that the trier of fact must scrutinize the relevant evidence with care in order to determine whether it is more likely than not that an alleged event occurred.¹¹⁴ The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.¹¹⁵ When the trier of fact finds that an accused committed the act or made the omission that formed the basis of the offence charged but was at the time suffering from mental disorder so as to be exempt from criminal responsibility, the trier of fact shall render a verdict that the accused committed the act or made the omission but is not criminally responsible on account of mental disorder.¹¹⁶ This forms what I refer to as the defence of NCR.
¹¹² "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 16(1).
¹¹³ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 16(2).
¹¹⁴ "F.H. v. McDougall, [2008] 3 S.C.R. 41, 2008 SCC 53" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6211/index.do at para 49.
¹¹⁵ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 16(3).
¹¹⁶ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 672.43.
21. What is a mental disorder, in this context?
A mental disorder means a disease of the mind.¹¹⁷
¹¹⁷ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 2.
22. What is a disease of the mind, in this context?
A disease of the mind includes any illness, disorder or abnormal condition which impairs the human mind and its functioning,¹¹⁸ excluding self‑induced states caused by alcohol or drugs and transitory mental states such as hysteria or concussion.¹¹⁹ However, the mere fact that an accused is intoxicated when the offence occurs does not prevent an accused's disease of the mind from serving as a basis for an accused's NCR defence.¹²⁰
¹¹⁸ "R. v. Bharwani, 2025 SCC 26" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21149/index.do at para 53.
¹¹⁹ "R. v. Bouchard-Lebrun, 2011 SCC 58, [2011] 3 S.C.R. 575" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7976/index.do at paras 39-40.
¹²⁰ Cf, "R. v. Bouchard-Lebrun, 2011 SCC 58, [2011] 3 S.C.R. 575" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7976/index.do at paras 37, 69.
23. What is appreciating the nature and quality of the act or omission, in this context?
Appreciating the nature and quality of the act or omission means more than a mere knowledge of the physical nature of the acts being committed.¹²¹ Appreciating the nature and quality of the act or omission means an ability to perceive the consequences, impact, and results of an act or omission,¹²² and does not refer to an ability to understand the sanctions attaching to the crime's commission.¹²³
¹²¹ "R. v. Abbey, [1982] 2 S.C.R. 24" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2447/index.do at p 31.
¹²² "R. v. Abbey, [1982] 2 S.C.R. 24" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2447/index.do at p 33.
¹²³ "R. v. Abbey, [1982] 2 S.C.R. 24" https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2447/index.do at pp 34-35.
24. What is knowing that the act or omission was wrong, in this context?
"Wrong" refers not only to legal wrongness but also to moral wrongness.¹²⁴ The incapability to know that an act or omission was wrong refers not to an abstract or generic understanding but rather to inability in the specific circumstances when the accused did the criminal act or omission,¹²⁵ and the accused's disease of the mind does not need to have convinced the accused that in the circumstances the criminal acts or omissions were made lawful by reasons such as self-defence.¹²⁶ An accused may be aware that an act or omission is contrary to law but, because of disease of the mind, at the same time be incapable of knowing that the act or omission is morally wrong.¹²⁷
The accused's wrongful act must be held by the accused to be morally acceptable according to Canadian society's standards rather than an individual's standards in order for the accused with the mental capacity to assess actions' moral acceptableness to benefit from a defence of NCR,¹²⁸ although an accused who lacks the mental capacity to assess whether an action is morally acceptable can also benefit from a defence of NCR.¹²⁹ This means that when the accused is guided by a moral code different from Canadian society's in which the criminal act was acceptable, the accused cannot benefit from the defence of NCR even when the accused suffers from a severe mental illness which is linked to the criminal actions for which the accused is facing charges.¹³⁰
¹²⁴ "R. v. Szostak, 2012 ONCA 503" https://coadecisions.ontariocourts.ca/coa/coa/en/item/11433/index.do at paras 57-58.
¹²⁵ "R. v. Szostak, 2012 ONCA 503" https://coadecisions.ontariocourts.ca/coa/coa/en/item/11433/index.do at para 56.
¹²⁶ "R. v. Szostak, 2012 ONCA 503" https://coadecisions.ontariocourts.ca/coa/coa/en/item/11433/index.do at para 56.
¹²⁷ "R. v. Worrie, 2022 ONCA 471" https://coadecisions.ontariocourts.ca/coa/coa/en/item/20706/index.do at para 148.
¹²⁸ "R. v. Dobson, 2018 ONCA 589" https://coadecisions.ontariocourts.ca/coa/coa/en/item/17002/index.do at para 24.
¹²⁹ "R. v. Dobson, 2018 ONCA 589" https://coadecisions.ontariocourts.ca/coa/coa/en/item/17002/index.do at para 24.
¹³⁰ "R. v. Dobson, 2018 ONCA 589" https://coadecisions.ontariocourts.ca/coa/coa/en/item/17002/index.do at paras 4, 29-30.
25. Is expert evidence required in order to advance a defence of NCR?
Expert evidence is not required in order to advance a defence of NCR.¹⁰⁴
¹³¹ "R. v. Worrie, 2022 ONCA 471" https://coadecisions.ontariocourts.ca/coa/coa/en/item/20706/index.do at para 97.
26. What is a particular way in which an accused can benefit from a defence of NCR in the context of being charged with assault causing bodily harm?
Evidence can establish that an accused, due to a mental disorder, wrongly believed that the complainant gave legally valid consent to the assault causing bodily harm.¹³²
¹³² Cf, "R. v. Fluxgold, 2009 ONCJ 201 (CanLII)" https://www.canlii.org/en/on/oncj/doc/2009/2009oncj201/2009oncj201.html at paras 1, 23, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 265(1), 265(1)(a), 265(1)(b), 265(1)(c), 265(3), 265(4), 267, 267(b).
27. What punishment can an accused who is convicted of assault causing bodily harm receive?
Every person who commits an assault causing bodily harm is guilty of an indictable offence and liable to imprisonment for a term of not more than ten years or is guilty of an offence punishable on summary conviction.¹³³ A person who is convicted of an assault causing bodily harm punishable on summary conviction is liable to a fine of not more than $5,000 or to a term of imprisonment of not more than two years less a day, or to both.¹³⁴
¹³³ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 268(2).
¹³⁴ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 267, 267(b), 787(1).
28. What does this range of punishments mean?
When a person pleads guilty to or is found guilty of an offence with a maximum penalty under fourteen years in prison and which has no minimum sentence prescribed by law, then the Court before which the accused appears may, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order.¹³⁵
Where a Court directs that an offender be discharged for an offence, the offender shall be deemed not to have been convicted of the offence¹³⁶ except in the following ways: the offender may appeal from the determination of guilt as if it were a conviction in respect of the offence;¹³⁷ the Attorney General and, in the case of summary conviction proceedings, the informant or the informant's agent may appeal from the decision of the Court not to convict the offender of the offence as if that decision were a judgment or verdict of acquittal of the offence or a dismissal of the information against the offender;¹³⁸ and the offender may plead autrefois convict in respect of any subsequent charge relating to the offence.¹³⁹
Because assault causing bodily harm is punishable by a maximum term of imprisonment of ten years and has no minimum punishment,¹⁴⁰ a person who is convicted of an assault causing bodily harm can receive a conditional or an absolute discharge rather than a conviction.¹⁴¹
¹³⁵ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 730(1).
¹³⁶ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 730(2).
¹³⁷ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 730(2)(a).
¹³⁸ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 730(2)(b).
¹³⁹ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 730(2)(c).
¹⁴⁰ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 267, 267(b), 787(1).
¹⁴¹ "Criminal Code (R.S.C., 1985, c. C-46)" (21 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 267, 267(b), 730(1).
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