Un évanouissement peut-il constituer des lésions corporelles ?
[99] The other argument raised in this ground is that the conviction of Appellant under Count 14 for negligence causing bodily harm because he forced X under a cold shower for a prolonged period of time, causing him to lose consciousness is tainted with an error of law since fainting does not constitute bodily harm. The judge said this:
[839] (…) Le concept juridique de « lésions corporelles » prévu à l’art 2 du Code criminel exige que la lésion en cause ne soit pas de nature passagère, mais dans le contexte particulier de cette cause, je considère que les éléments constitutifs requis ont été prouvés, et ce, hors de tout doute raisonnable.
The Crown agrees that this part of the judgment should be reversed and that an acquittal be entered. The Court howfainever is not bound by the Crown’s position.[44] I think it is wrong; fainting can be “bodily harm” in my opinion.
[100] The definition of bodily harm in the Criminal Code is as follows:
| 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; |
2. Les définitions qui suivent s’appliquent à la présente loi.[…]
« lésions corporelles » Blessure qui nuit à la santé ou au bien-être d’une personne et qui n’est pas de nature passagère ou sans importance. |
[101] Despite some ambiguity, in the foregoing quote from paragraph 839 of the judgment, the judge arrived at the conclusion that the elements of the offence were proved. In this regard she found that:
- i) the cold shower caused hurt or injury to X;
- ii) that the hurt or injury interfered with X’s health or comfort; and
iii) that the hurt or injury was not trifling or was not transient.
[102] The facts found by the judge are not challenged. Rather, Appellant argues that fainting cannot constitute bodily harm.
[103] Bodily harm is not restricted to cuts, bruises, scratches or other injuries which are readily visible on the victim’s body.[45]
[104] The ultimate issue in this case is the manner in which “transient or trifling” in the definition of bodily harm should be read. Otherwise stated, is the definition met where (in this case) the hurt is more than merely transitory or more than merely trifling?[46] At Common Law, the definition was “more than merely transitory and trifling”. The “and” became an “or” on codification.
[105] The Ontario Court of Appeal examined the definition of bodily harm in R. v. J.A.[47] and although the observations are largely obiter[48] they are applicable to the present issue and I agree with them. In R. v. J.A., Simmons J.A., writing for the Ontario Court of Appeal, preferred a “positive” interpretation because of:
- i) the wording which focuses on what constitutes bodily harm rather than what is excluded;
- ii) the legislative history which does not indicate that Parliament intended to change the meaning of the Common Law formulation, and
iii) the fact that injuries of short duration are recognized by the courts as being sufficiently serious to constitute bodily harm.[49] For example, one can lose consciousness upon receiving an electric shock from a taser. The fact that one shortly regains consciousness may make the injury transient but hardly trifling. Is this not bodily harm? The answer is self-evident.
[106] In this case, the fainting of X was certainly not trifling even though it may have been transient. The fainting constitutes bodily harm and is an indication that the act (the cold shower) caused such interference with X’s health by an effect (hypothermia) on his system which resulted in a loss of consciousness. There was no expert evidence. However, the facts speak for themselves as to the causal link between the cold shower and the loss of consciousness.
[107] I should not be taken to say that every loss of consciousness will satisfy the definition of bodily harm since not every loss of consciousness stems from an injury (for example sleeping). However, in this case, since the judge’s factual findings are not put in issue and because I disagree with the parties’ submission that fainting does not, per se, in law, constitute bodily harm, I see no reason to interfere with the finding of guilt on count 14. The issue is one of mixed fact and law and as can be seen in the foregoing analysis, I find no error in the judge’s conclusion.
