R v Pootlass, 2019 BCCA 96: Re-defining the Consequences of Aggravated Assault by Wounding

In R v Pootlass, 2019 BCCA 96, the British Columbia Court of Appeal spilled some ink on the definition of “wound” and the level of harm that must be proven to make out an aggravated assault by wounding. In doing so, the Court held that the Crown is not required to prove that the injury resulted in damage that persists over time. What follows is a brief summary of the facts, the decision on appeal and my tentative view that it is wrongly decided.

The Facts

Mr. Pootlass punched the victim in the head for 30 to 40 seconds. While it was never resolved whether Mr. Pootlass had “something in his hand”, the assault resulted in two bleeding cuts to the victim’s head, requiring a dozen or so stitches and staples. By the time of the trial, the victim “had a light scar and a mild loss of feeling on his forehead” at the scar (para. 6-8).

The trial judge held that “a wound contemplates a tissue injury that results in permanent damage or long-standing dysfunction, including injuries that result in serious internal or external bleeding or other serious internal tissue damage” (para. 10). The trial judge concluded the victim’s injuries did not fall within that definition and convicted Mr. Pootlass of the lesser included offence of assault causing bodily harm. On appeal, the issue was the “correct definition of “wound” and whether a wound requires permanent damage or long-lasting dysfunction...” (para. 2).

The Decision on Appeal

Writing for the Court, Madam Justice Bennett extensively canvassed the common law meaning of “wound”, observing that a wound was considered to be “a break in the continuity of the whole skin, meaning a break in the skin that goes at least as deep as the dermis” (or “goes beyond the epidermis”). Proof of bleeding was not required, although this is often “valuable evidence that a break in the skin went at least as far as the dermis” (paras. 46, 64-65 & 84). Notably, the common law definition did not require proof of bodily harm (paras. 46 & 66).

Given, however, that the statutory offence of aggravated assault by wounding is clearly intended to be more serious than assault causing bodily harm, the consequences necessarily require “something more” (paras. 84, 90 & 97). The “more challenging question” was the level of “greater harm” required, noting that other courts have proposed different possibilities: (1) that the injury result in damage that persists through time; (2) that the injury be more than merely trifling, fleeting or minor; or (3) that the injury constitute more than “minor bodily harm” (para. 91).

Justice Bennett rejected the requirement that the injury must persist over time. This, in her view, failed to take into account the significance of the injury (and, presumably, the nature of the act that caused the injury). After all, “a significant interference with the complainant’s well-being may not be permanent or long lasting, but it should be open to the trier of fact to determine that it was the consequence of an aggravated assault” (para. 98).

Also rejected was the Crown’s suggestion “that “wound” be defined as any injury that meets or even marginally exceeds the boundary for “bodily harm” as long as it bleeds” (para. 99). This would set the standard too low, and would fail to meaningfully elevate aggravated assault from the standard of bodily harm (para. 105).

The Court instead proposed a requirement for “serious bodily harm”. Adopted from McCraw, this level of harm is defined as “any hurt or injury, whether physical or psychological, that interferes in a substantial way with the integrity, health or well-being of the complainant” (para. 107). This, it was said, “can potentially encompass relatively transient harm as long as it is sufficiently serious to be a substantial interference, as well as relatively trifling harm that lasts long enough to be substantial” (para. 109).

With respect to “trifling harm”, Justice Bennett noted that “an insignificant injury that leaves a small but permanent scar should rarely qualify as aggravated assault” (para. 98).

The Court, in applying this test to Mr. Pootlass’ matter, allowed the appeal and substituted a conviction for aggravated assault (para. 120).

Commentary

The core conclusion in Pootlass - that the duration of the effects of the injury is not a required element of wounding - is not one that is shared by all. Indeed, some courts have persuasively held otherwise. Justice Anne Derrick (as she then was) made the following comments in R v MacNeil, 2012 NSPC 106, a case involving a “one-punch assault”, at paragraphs 19 and 20:

An assault is characterized as an aggravated assault when it involves injuries at the upper end of the injury spectrum, injuries that either endanger life, or disfigure, or maim, or wound. Surely then, wounding has to be bodily harm that sits at that end of the severity scale where disfigurement and maiming also belong.

For the law to be coherent, there must be something that distinguishes wounding from serious bodily harm where the nature of the injuries alone do not make the distinction clear. In such cases, the distinguishing characteristic has to be the permanence or long-lasting effect of the injuries. In this respect I find the S.E.L. decision [2012 ABQB 190] to be the most helpful to my analysis…

Even though the victim’s injuries in MacNeil were far from minor - a small scar near his eye (albeit no stitches required), some bruising to his brain (seemingly in the form of a concussion) and some broken facial bones - Justice Derrick was not satisfied beyond a reasonable doubt that the injuries amount to wounding, given her view that serious long-lasting damage was required. In convicting Mr. MacNeil of assault causing bodily harm, Justice Derrick observed that it was merely “good fortune” that the injuries were not worse.

While some courts appear to share this view - for example, R v Papalia, 2012 BCSC 245 per Bruce J., R v Lopez-Quebedo, 2016 BCPC 46 per Rideout J., R v S.E.L., 2012 ABQB 190, per Hillier J., R v Reid, 2013 ABPC 228 per Semenuk J., and R v Hartling, 2016 YKTC 22 per Ruddy C.J. - other courts, particularly in Ontario, seemingly do not impose such a requirement. See: R v Beharri, 2013 ONSC 7753 at para. 121 per Hill J.; R v Khalili-Arabi, 2013 ONSC 5566 at para. 145 per Code J. That said, the recent case of R v Mikasinovic, 2018 ONCA 573, at para. 6, arguably tends towards the “serious permanent/long-lasting damage” view.

Indeed, the odd thing about Pootlass is that while the Court readily borrowed “serious bodily harm” from McCraw, it swiftly dismissed an important caveat about its meaning. In McCraw, Justice Cory observed, in obiter, that “"serious bodily harm" does not require proof of the same degree of harm required for aggravated assault…” In other words, McCraw suggests that a wound would require proof of greater harm than “serious bodily harm” (para. 110). That said, Justice Bennett relied on the HIV non-disclosure case of Mabior to conclude that "serious bodily harm" was sufficient, even though that case deals with the “endangers the life” route to aggravated assault, not wounding. Moreover, actual endangerment of life from HIV non-disclosure, as with maiming and disfigurement, contemplate harm that persists through time. Consistency, or coherence, would suggest the same might be true for wounding.

Contrary to Pootlass’ assurance that the “serious bodily harm” standard is “workable and comprehensible”, it risks amounting to little more than wordsmithing. Indeed, non-trivial bodily harm (the bodily harm standard) is not readily distinguishable from “serious bodily harm” (Pootlass’ aggravated assault by wounding standard). To quote Justice Arbour from (the admittedly different context of) Nette, it “illustrates the difficulty in attempting to articulate nuances in this particular legal standard that are essentially meaningless”. Indeed, in Nette, the majority held that there is no meaningful distinction between “non-trivial” and “significant” in the context of the legal standard for causation in homicides. How then is there a “workable and comprehensible” distinction between “non-trivial bodily harm” and “serious bodily harm”?

Of course, even if using the Pootlass standard, the presence of permanent or serious long-lasting effects will be highly relevant, if not determinative, to whether “serious bodily harm” occurred. Moreover, I think that it is unlikely that assaults resulting in “trifling harm” will be charged as aggravated assault, given the “straight” indictable process. That said, having a requirement for permanent or serious long-lasting effects from the wound is more sensible, both in terms of its application vis a vis bodily harm and the rationale for greater punishment. After all, the Crown can always prosecute assault causing bodily harm by indictment where the assaultive conduct was particularly serious even if, by “good fortune”, the injuries were less severe than might have been expected.

On a somewhat related point, the Court of Appeal for Ontario in R v McPhee, 2018 ONCA 1016 recently wrote about aggravated assault by maiming, and concluded that “the loss of the use or function of some part of the victim’s body need not necessarily prove to be permanent in order for “maiming” to be made out”, particularly “given modern medicine’s increasing ability to correct or repair what were once thought to be permanent injuries” (para. 41). Maiming was made out in that case as the injury - a significantly displaced and comminuted fracture to the victim’s orbital bone - “was not transitory”: corrective surgery was required to repair the damage; the victim’s recovery to normal eating and speech took place over a period of three weeks; and “even now”, approximately 5 years after the incident, the victim’s “eye twitches and he cannot adjust his eye to the sun” or other sources of light, which, in turn, has interfered with his ability to drive (para. 42). The victim also continued to have pain in his gums. In other words, serious long-lasting effects were proven.

As a noteworthy aside, the Court held that maiming can occur irrespective of the victim’s “ability to fight back or defend oneself”, rejecting a jurisprudential holdover from “the days of trial by ordeal” (paras. 36-41).

Ryan ClementsComment