(s. 269)
Note[1]
(Last revised July 2012)
(Read applicable parts or indictment or count.)
1. that (NOA) committed an unlawful act;
2. that the unlawful act was dangerous; and
3. that (NOA)’s unlawful act caused bodily harm to (NOC).
Unless you are satisfied you beyond a reasonable doubt that the Crown has proved all these essential elements, you must find (NOA) not guilty of unlawfully causing bodily harm.
If you are satisfied beyond a reasonable doubt of each of these essential elements [and you have no reasonable doubt after considering the defence(s) (specify defences) about which I will instruct you][3] , you must find (NOA) guilty of unlawfully causing bodily harm.
An unlawful act is any offence under either federal or provincial law. The unlawful act alleged in this case is (describe briefly unlawful act alleged including a reference to the relevant statute, e.g. the Criminal Code).
(Set out the underlying offence and its essential elements, including any defences.)
(Review essential elements of unlawful act.)[4]
Unless you are satisfied beyond a reasonable doubt that (NOA) did an unlawful act, you must find (NOA) not guilty. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) did an unlawful act, you must go on to the next question.
The Crown must prove beyond a reasonable doubt that (NOA)’s unlawful act was dangerous.
To decide whether (NOA)’s unlawful act was dangerous, ask yourselves whether a reasonable person in the same circumstances would have realized that he or she was exposing someone else to a risk of bodily harm. “Bodily harm” is any hurt or injury (including psychological harm[5] ) that interferes with a person’s health or comfort and is more than just brief or minor.
In deciding what a reasonable person would have realized, you must not take into account (NOA)’s individual characteristics or experiences.
Unless you are satisfied beyond a reasonable doubt that the unlawful act was dangerous, you must find (NOA) not guilty. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that the unlawful act was dangerous, you must go on to the next question.
To repeat, “bodily harm” is any hurt or injury (including psychological harm[6] ) that interferes with a person’s health or comfort and is more than brief or fleeting, or minor in nature.
The Crown must prove beyond a reasonable doubt that (NOA)’s conduct contributed significantly[7] to the bodily harm done to (NOC). The Crown does not have to prove that (NOA) meant to cause bodily harm to (NOC) at the time that he committed the unlawful act.
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOA)’s unlawful act caused bodily harm to (NOC), you must find (NOA) not guilty.
If you are satisfied beyond a reasonable doubt that (NOA)’s unlawful act caused bodily harm to (NOC), you must find (NOA) guilty of unlawfully causing bodily harm.
[1] This instruction should be used in cases where the unlawful act is not an assault. See R. v. DeSousa, [1992] 2 S.C.R. 944 (S.C.C.). The instruction for assault causing bodily harm is Offence 267-B.
[2] Where identity is an issue, remember to include any further instructions that may be relevant (e.g., eyewitness identification, alibi, similar fact, etc.). Where date is an issue, the jury must be told that the Crown must prove that the offence occurred within the time frame indicated in the indictment. Where place is an issue, the jury must be told that the Crown must prove that some part of the offence occurred in the place indicated in the indictment.
Generally, the Crown must prove the date and place specified in the indictment. However, where there is a variation between the evidence and the indictment, refer to s. 601(4.1) of the Criminal Code and the jurisprudence following R. v. B. (G.), [1990] 2 S.C.R. 3.
[3] Insert the bracketed words if appropriate. This instruction will have to be modified where the accused has a legal burden of proof, such as for mental disorder or non-insane automatism.
[4] Including actus reus and mens rea.
[5] Delete “including psychological harm” where there is no evidence on this issue.
[6] Delete “including psychological harm” where there is no evidence on this issue.
[7] Following R. v. Nette, [2001] 3 S.C.R. 488, it would appear that this formulation of the general test of causation is not reversible. It expresses the central element of the test in R. v. Smithers, [1978] 1 S.C.R. 506, which stipulated that a cause should be “not insignificant.” The two formulations are equivalent. Thus Nette is regarded as affirming the standard in Smithers, but providing a positive alternative for expressing it. This interpretation is reinforced by the Court’s decision in R. v. Maybin, 2012 SCC 24, in which it confirmed that the correct test is found in Smithers and Nette. Note also that the Court stated:
Further, this Court emphasized that causation issues are case-specific and fact-driven. The choice of terminology to put to a jury is discretionary in the context of the circumstances of the case (Nette, at para. 72). Implicit in Nette then, is the recognition that different approaches may be helpful in assessing legal causation, depending upon the specific factual context (at para. 17).