R. v. CHAHAL, 2024 ABCA 218, JUNE 21, 2024.
FACTS: The accused was convicted of the offence of assault causing bodily harm. The accused kicked the victim in the head. The Alberta Court of Appeal indicated that the “kick to the complainant’s head left a contusion or redness to the skin on the complainant’s forehead which lasted, along with some discomfort, for a couple of hours. The trial judge found that this constituted bodily harm” (at paragraph 2).
The accused appealed from conviction, arguing that “the trial judge erred by finding there was bodily harm and should have convicted the appellant on a third count of simple assault”.
HELD: The appeal was allowed and a conviction for assault was substituted.
The Court of Appeal indicated that “labelling a red mark that lasted a couple of hours as ‘bodily harm’…demonstrates the absence of a reasonable regard for the ordinary meaning of the words ‘transient” and “trifling’” (at paragraph 29).
The Court of Appeal indicated that the “extent of the bruising is an important consideration in determining whether it is transient or trifling. Bruising can be serious when it involves serious discolouration and lasts for days, weeks or months. In addition, swelling often accompanies bruising and makes it more serious. It can also be serious where there is more than one bruise as set out in numerous cases: for example, R v Garrett, 1995 ABCA 281 at paragraph 10. However, the case law differentiates between the seriousness of a bruise and how long the bruise lasts in determining whether it is transient or trifling. Some bruising or contusions can be transient or trifling” (at paragraph 32).
The Court of Appeal concluded that “if a bruise described as simply a red mark and no longer present or causing pain within two hours is an injury that is not transient or trifling, it is difficult to imagine what hurt or injury would constitute being transient or trifling. The inclusion of the words ‘transient or trifling’ in the definition of bodily harm must have intended the injury to have a certain seriousness that allows for the higher sanction of a conviction for assault causing bodily harm as opposed to assault simpliciter. In our view, to equate the injury in this case to being more than transient or trifling would lower the bar for bodily harm to a level which would not differentiate assault simpliciter from assault causing bodily harm. If a bruise lasting no longer than two hours is not a “transient or trifling” hurt or injury, then little if anything remains that would exceed this threshold…The injury in this case was transient and trifling. We set aside the conviction for assault causing bodily harm and replace it with a conviction for assault simpliciter” (at paragraphs 48 and 49).