R v Chahal, 2023 ABCJ 105

In the Alberta Court of Justice Citation: R v Chahal, 2023 ABCJ 105 Date: 20230509 Docket: 200357770P1 Registry: Calgary Between: His Majesty the King Crown - and - Heera Singh Chahal Accused Reasons for Ruling of the Honourable Justice A.A. Fradsham Introduction [ 1 ] For the reasons set forth in R. v. Chahal 2023 ABPC 32 , I convicted Mr. Chahal of three Criminal Code offences including assault causing bodily harm contrary to

section 267 (Count 3). At the commencement of the sentencing hearing, Mr. Chahal made an application for an order amending that verdict by replacing it with a conviction for common assault (section 266). I dismissed that application, and gave

summary reasons for doing so. I undertook to later issue written Reasons for my decision, and through these Reasons now discharge that undertaking. Issues [ 2 ] The issue is whether the findings of fact made by me support a conviction on Count 3 for assault causing bodily harm. Facts [ 3 ] The facts relevant to this application are that Mr. Chahal, while on duty as a corrections peace officer in the Calgary Remand Centre, kicked a Mr. McNabb on the right side of his face while McNabb, in accordance with instructions from Mr. Chahal, was lying

prone on the ground with his hands behind his back. The kick was captured on video, and, at paragraph 21 of my decision, I described itas follows: [21] At 7:23:35, Mr. Chahal pauses and then moves towards Mr. McNabb’s head. Mr. Chahal grounds his feet as if he is preparing tokick. Mr. Chahal swings his right leg and kicks Mr. McNabb on the right side of his face. The impact of the kick causes Mr. McNabb’swhole body to jolt to the left, and his head bends to the left in a quick motion. [4] As a result of that kick, Mr. McNabb suffered injuries which I found to be as follows: [139] The kick Mr.

Chahal delivered to Mr. McNabb caused a contusion to his right forehead. Ms. Murray’s evidence confirmed thisevidence. Mr. McNabb testified that he noticed his face was red after the kick and felt discomfort for a couple of hours…. [5] Ms. Murray was a corrections health manager who gave evidence about the contents of Mr. McNabb’s health records, thecontents of which were accepted as proof of the truth of their content. I accepted Mr. McNabb’s evidence about the discomfort he felt. Law and Analysis [6]

Section 2 of the Criminal Code defines “bodily harm” as meaning “any hurt or injury to a person that interferes with thehealth or comfort of the person and that is more than merely transient or trifling in nature.” [7] Various cases have explored the concept of bodily harm. [8] In R. v. Gejdos 2017 ABCA 227, the Court said, at paragraph 63, “…Bodily harm covers everything from minor injuriesthat, while neither transient or trifling, resolve relatively quickly, all the way to permanent and life-altering injuries that approach theseriousness of a fatality….” [9] In R. v.

S.N.A. 2018 ABQB 1052, Justice Renke said: [60] Again, s. 2 provides that “bodily harm” means any hurt or injury to a person that interferes with the health or comfort of the personand that is more than merely transient or trifling in nature. Bodily harm includes scrapes, lacerations, and bruises, and muscle soreness: Rv Moquin, 2010 MBCA 22 at para 25. The injury does not have to interfere in a grave or substantial way with the physical integrity orwell-being of the complainant: Moquin at para 28.

Neither is a functional impairment a necessary component a necessary component ofbodily harm, although it may accompany bodily harm: Moquin at para 31. An injury need not be of long duration to qualify as bodilyharm. The injury may heal over a short period and still amount to bodily harm: R v Garrett, 1995 ABCA 281 at para 9. In R v Dixon(1988), 42 CCC (3d) 318, (BCCA), Justice Esson in his concurring decision wrote that the “transient and trifling”qualifications “import a very short period of time and an injury of very minor degree which results in a very minor degree of distress.” Agood

summary of the approach to “bodily harm” is set out in R v Bulldog, 2015 ABCA 251 at para 44: [44]

Section 2’s definition of “bodily harm” states a low threshold: R v Dorscheid, 1994 ABCA 18 at para 11, [1994] AJ No 56 (CA). Itmeans something more than “a very short time period and an injury of very minor degree which results in a very minor degree ofdistress”: R v Dixon ….

Not surprisingly, then, indisputably minor injuries have been found to constitute “bodily harm”: R v Rabieifar,[2003] OJ No 3833 (QL) (CA) (scratches and abrasions of less than one inch on the complainant’s body, and some bruising and swellingon her face, thigh and hand); R v CK, 2001 BCCA 379 at para 3, [2001] BCJ No 1119 (QL) (small bruise on the complainant’s rightcalf, a small anal tear, and a deviated septum that resulted in some bruising and swelling, all of which was said by a physician to be “notserious and … expected to resolve itself within a few days”); R v Moquin … (several bruises lasting 11 days, a sore hand and a sorethroat); and Dorscheid (scrapes, lacerations and bruises). [10] Again, in R. v.

Abdulkadir 2022 ABKB 700, Justice Renke explained the test for “bodily harm”: [582] In R v Palacios-Morales, 2021 ABCA 152, the Court of Appeal recently confirmed its approval of R v Moquin, 2010 MBCA22. Moquin teaches that bodily harm includes scrapes, lacerations, and bruises, and muscle soreness: at para 25. The injury does not haveto interfere in a grave or substantial way with the physical integrity or well-being of the complainant: ibid. at para 28. Neither isfunctional impairment a necessary component a necessary component of bodily harm, although it may accompany bodily harm: ibid. atpara 31. [583] A good

summary of the appropriate approach to “bodily harm” is set out in R v Bulldog, 2015 ABCA 251 at para 44.... [11] In R. v. Peterson 2017 ONSC 7008, Justice André, in discussing the law as it related to a case of a victim being punched inthe face, said: [55] In R. v. Dixon, [1998] B.C.J. No. 774 (B.C.C.A.), Esson J.A. noted that the words transient or trifling “import a very shortperiod of time and an injury of very minor degree which results in a very minor degree of distress”.

He further noted at page 332 that“There is no necessary connection at all between the duration of the injury and the question whether it is trifling”. Furthermore in R. v.Rabieifar, [2003] O.J. No. 3833 (C.A.), the Ontario Court of Appeal upheld a trial judge’s decision that bruisings and abrasionsinterfered with the complainant’s health and comfort and accordingly were injuries more than merely transient or trifling in nature. [56] In my view, the bruising and swelling to Mr. Harvey’s face after being punched by Mr. Peterson was more than merely transientor trifling in nature.

It is a matter of common sense that the location of these injuries would have interfered with Mr. Harvey’s comfort.

[ 12 ] In the case at bar, Mr. McNabb was kicked in the face with such force as to cause his body to move. As a result, Mr. McNabb suffered pain for a couple of hours and suffered a visible contusion (bruise) to the right side of his forehead. Those injuries and discomfort exceed the low threshold necessary to constitute “bodily harm”. [ 13 ] For these Reasons, I dismissed Mr. Chahal’s application to amend the verdict on Count 3. Dated at the City of Calgary, Alberta this 9 th day of May, 2023. A.A. Fradsham A Justice of the Alberta Court of Justice Appearances: M. O’Connor for the Crown J. Lutz, K.C. for the Accused