section 2

INTRODUCTION AND BRIEF DESCRIPTION

Section 2 of the Criminal Code sets out the definition of bodily harm

SECTION WORDING

2. In this Act, 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;

EXPLANATION

The term "bodily harm" is defined at section 2 of the Criminal Code. As stated in the definition, the harm must be more than merely transient or trifling in nature. The harm must also have the effect of interfering with the health or comfort of the complainant.

COMMENTARY

This term "bodily harm" has been broadly construed by the Courts. Some examples, such as a lost tooth, or cuts and gashes are obvious and need no further explanation. More complicated questions arise when, for example, an individual's harm is cut out of malice (which can constitute bodily harm), or mere bruising (which is typically decided on a case by case basis).

STRATEGY

Offences which refer to bodily harm are often augmented forms of more basic charges. For example, section 266 sets out the offence of assault simpliciter, whereas section 267 sets out the offence of assault causing bodily harm. Similarly section 271 sets out the offence of sexual assault, whereas section 272 sets out the offence of sexual assault causing bodily harm. The augmented form of the basic charge can be defended on the medico legal question as to whether the harm caused rises to the level of "bodily harm". Minor degrees of harm can often be plead down to the simpliciter form of the charge, and a sentence imposed commensurate with the degree of harm suffered by the victim.

QUESTIONS AND ANSWERS

Q.

Is jail automatically imposed for an offence involving bodily harm?

A.

No. For example, the offence of assault causing bodily harm which is set out in section 267 of the Criminal Code has a maximum penalty of 18 months when prosecuted by summary conviction, or ten years when prosecuted by indictment. Despite the availability of high penalties, neither mode of prosecution has a mandatory minimum sentence, and thus, all ranges of punishment are available at law, from custodial to non-custodial.

VIDEOS AND MEDIA

Ottawa-based criminal defence lawyer Paul Lewandowski discusses the definition of the term bodily harm as contained in section 2 of the Criminal Code of Canada.

RELATED CASES

The Supreme Court of Canada sets out the meaning of bodily harm as defined in the Criminal Code, and expands upon it.
An Ontario case from the Court of Appeal that analyses the concept of bodily harm in the context of a sado masochistic relationship, and sets out the bounds of individual freedom and autonomy when pit against broader societal interests.

RELATED LINKS

A criminal defence lawyer discusses some of the possible avenues of defence on a charge involving bodily harm.
An Ottawa criminal defence lawyer analyses the different grades of assault charges, including assault simpliciter, assault causing bodily harm, and aggravated assault.