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Simon Shields, LLB

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"Violence" - Definition

R. v. Steele (SCC, 2014)

This Supreme Court of Canada case, in which the court extensively considered the general legal meaning of the term "violence" in the context of specific provisions of the Criminal Code (whether the offence was a "serious personal injury offence"), will also be useful in any case where "violence" or related terms condition liability or remedies. Here the court interpreted the term to include the threat of violence during the course of a robbery:
B. Plain Meaning of the Term “Violence” in the Context of the Criminal Code and Other Legislation

[42] The question of what constitutes violence is as old as the criminal law itself. It is a moral question as much as a legal one, and no doubt society’s answer to it has changed in tandem with evolving social mores. I will not attempt — nor am I required — to answer it definitively. However, in interpreting the words “use or attempted use of violence” in subpara. (a)(i) of the definition of an SPIO, I must endeavour to ascertain their “plain meaning”. In this regard, I am aided by dictionary definitions as well as by judicial interpretations from a variety of contexts involving both the Criminal Code and other legislation. I will explain a conflict that exists between harm-based definitions of violence that focus on acts by which a person causes, attempts to cause or threatens to cause harm, and force-based definitions that focus on the physical nature of the act. Building upon this Court’s reasoning in C.D. and subsequent cases, I conclude that the prevailing definition of violence is a harm-based one.

[43] In C.D., Bastarache J. began his discussion of the definition of violence by noting that there is disagreement with respect to its grammatical and ordinary meaning. After quoting one dictionary definition of violence, namely “[t]he exercise of physical force so as to inflict injury on, or cause damage to, persons or property” (The Oxford English Dictionary (2nd ed. 1989), at p. 654), Bastarache J. noted that violence is ordinarily understood not only in terms of the use of force, but also in terms of the effects of that use. This conflict is reflected in judicial definitions, as Prof. Teresa Scassa explains:
It is significant that the Criminal Code, which one might assume to be the “bible” of the control of violence in society, offers no definition of violence. It is, surprisingly, perhaps the most “assumed” term within the entire Code. Offences which one might consider the most “violent” of all crimes, such as murder and assault, do not mention violence. Rather, they talk about concrete, measurable things like “death” and “bodily harm.”

(T. Scassa, “Violence Against Women in Law Schools” (1992), reflex, 30 Alta. L. Rev. 809, at p. 816, cited in C.D., at para. 30)
[44] I would add that even dictionary definitions of violence vary, reflecting both harm-based and force-based approaches. For instance, Le Petit Robert dictionary contains the following definition of the French expression “faire violence” (do violence): “agir sur [quelqu’un] ou le faire agir contre sa volonté, en employant la force ou l’intimidation” ([translation] “act so as to influence a person or to cause the person to act in a manner contrary to his or her wishes, by using force or intimidation”) (new ed. 2012), at p. 2717 (emphasis added)). The variance among definitions of violence — both those found in dictionaries and those adopted by judges — highlights the need to interpret the word in the context in which it is used.

[45] In C.D., the Court was being asked to interpret the scope of the term “violent offence” as used in s. 39(1)(a) of the YCJA with respect to the imposition of custodial sentences on young persons. Bastarache J. concluded that in the context of the YCJA, the term “violent offence” means “an offence in the commission of which a young person causes, attempts to cause or threatens to cause bodily harm” (para. 17). This definition is notable for its emphasis on the harmful effects of violence rather than on the nature of the force that was applied. Thus, threats of bodily harm are included even if physical force has not been used. Bastarache J. explained that a harm-based approach encompasses both physical and psychological harm, whereas a force-based approach would apply only to those “harm-causing” offences that also involve the use, attempted use or threatened use of force (para. 66). This definition of “violent offence” also excludes certain acts that might otherwise fall within the ordinary meaning of the word “violence”. For instance, it excludes crimes against property even though such offences are generally considered to involve “violence” to property (paras. 33 and 51). It also excludes relatively minor assaults committed without causing, attempting to cause or threatening to cause bodily harm, whereas a force-based definition would tend to encompass such assaults (para. 64).

[46] Some of the reasoning in C.D. was statute-specific. For instance, Bastarache J. favoured a harm-based approach in part to include certain offences — e.g. murder committed without the direct application of physical force — that in his view ought to fall within the definition of “violent offence” but that might not be included by a force-based approach (paras. 58-65). However, he also made some general observations in support of his adoption of a harm-based definition. He stated that such a definition “better accords with . . . the ‘usual’ definition of violence, which tends to focus on its effects (i.e. harm) rather than on the means employed to produce the effects (i.e. force)” (para. 67). The inclusion of threats of bodily harm in the definition of “violent offence” “accords with the commonly held view that a threat to cause bodily harm is, at base, an act of violence” (para. 85). He added the following:
The view that threats of bodily harm are essentially acts of violence is likely based on the fact that threatening to cause bodily harm can often perform the same function as actually causing it, in that both can instill the level of fear in the victim that is needed to achieve the offender’s goal: see [R. v. McCraw, 1991 CanLII 29 (SCC), [1991] 3 S.C.R. 72], at pp. 81-82. In this sense, it can be said that irrespective of whether an offender threatens to cause bodily harm or actually causes bodily harm, in both cases he or she is “wielding violence” to satisfy his or her object(s). [para. 85]
I would endorse these observations of Bastarache J. and would note that the harm-based approach he articulated draws additional support from several recent decisions rendered by this Court in a variety of contexts, including those of the offence of uttering threats, the violence exception to freedom of expression, and the offence of robbery.

[47] First, a recent case concerning the offence of uttering threats provided for in s. 264.1(1)(a) of the Criminal Code supports the proposition that threats of violence are inherently violent, not simply a means of communicating future violence. In R. v. McRae, 2013 SCC 68 (CanLII), [2013] 3 S.C.R. 931, the Court confirmed the elements of the offence of uttering threats:
[I]t is not necessary to prove that the threats were conveyed to their intended recipients (prohibited act) or that the accused intended the threats to be so conveyed (fault element). Further, it is not necessary to prove that anyone was actually intimidated by the threats (prohibited act) or that the accused specifically intended to intimidate anyone (fault element). The concept of the “closed circle” is therefore legally wrong. Threats are tools of intimidation and violence. As such, in any circumstance where threats are spoken with the intent that they be taken seriously, even to third parties, the elements of the offence will be made out. [Emphasis added; para. 24.]
In other words, the act of threatening harm can itself be an act of violence even if the threats are not conveyed to their intended recipients or are not intended to be so conveyed, so long as they are intended to be taken seriously.

[48] Incidentally, this does not mean that the offence of uttering threats under s. 264.1(1)(a) is an SPIO. Even if the offence were found to meet the violence requirement (“use or attempted use of violence”) of subpara. (a)(i) of the definition of an SPIO, it is not punishable by a sentence of imprisonment for 10 years and therefore fails to meet the seriousness requirement: s. 264.1(2)(a).

[49] Second, in C.D., Bastarache J. discussed this Court’s decisions with respect to freedom of expression and the question whether threats of violence fall outside the scope of constitutionally protected speech (para. 31). In R. v. Keegstra, 1990 CanLII 24 (SCC), [1990] 3 S.C.R. 697, Dickson C.J. had held that only “expression communicated directly through physical harm” could be considered violence and be excluded from the protection of s. 2(b) of the Canadian Charter of Rights and Freedoms on that basis (p. 732). It was unclear from the early cases whether the “violence exception” extended to threats of violence, but any lingering uncertainty was eliminated in R. v. Khawaja, 2012 SCC 69 (CanLII), [2012] 3 S.C.R. 555, in which McLachlin C.J. held: “This Court’s jurisprudence supports the proposition that the exclusion of violence from the s. 2(b) guarantee of free expression extends to threats of violence” (para. 70). The same rationale for excluding expression conveyed by physical violence from the protection of s. 2(b) also applies to threats of violence.

[50] Third, Bastarache J. in C.D. discussed the different forms of robbery under s. 343. Regarding s. 343(b), he mentioned that the expression “personal violence” in the phrase “wounds, beats, strikes or uses any personal violence” had been interpreted to require something more than a mere technical assault. On the other hand, the phrase “uses violence or threats of violence” in s. 343(a) had been interpreted to include simple assault (para. 32). Putting aside, for a moment, technical arguments about the construction of each of the provisions, I would note that Parliament included threats of violence among the violent acts that elevate the offence of theft to that of robbery. In this regard, I agree with the comment of Epstein J.A. in Lebar: “Section 343(a) applies to a robbery committed with violence. It is categorically a crime of violence — violence is an essential element of an offence under that section” (para. 33).

[51] This brief survey of judicial interpretations of the term “violence” suggests that the focus is on the harm caused, attempted or threatened rather than on the force that was applied. I do not suggest that the definition of violence must be a harm-based one in every case. Context will be paramount. As I mention below (see para. 65), there may be situations in which the presumption of consistent expression is clearly rebutted by other principles of interpretation and, as a result, the intended meaning of violence may vary between statutes and even, in some circumstances, within them: R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at p. 222. However, unless the context or the purpose of the statute suggests a different approach, the prevailing definition of “violence” is a harm-based one that encompasses acts by which a person causes, attempts to cause or threatens to cause harm.
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