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Criminal - Sexual Assault Causing Bodily Harm. R. v. Trowbridge
In R. v. Trowbridge (Ont CA, 2026) the Ontario Court of Appeal (five judge panel) allowed a Crown criminal appeal, here brought against an "acquittal for first degree murder in relation to the death of his common law spouse".
Here the court considered the offence of 'sexual assault causing bodily harm' [CCC s.272(1)(c)]:3. Sexual assault causing bodily harm
[57] Before turning to Zhao, which was a case involving an allegation of sexual assault causing bodily harm, it is helpful to review the essential elements of that offence. They can be distilled as follows:(i) an intentional touching;
(ii) in circumstances of a sexual nature;
(iii) where the complainant did not consent to the touching;
(iv) the accused knew of (or was reckless or wilfully blind to) the non-consent;[4]
(v) bodily harm was caused; and
(vi) the risk of bodily harm was objectively foreseeable. Therefore, a prosecution for sexual assault causing bodily harm that proceeds based on the complainant’s non-consent resembles a prosecution for sexual assault, except for the added element of bodily harm. It is a more serious form of sexual assault, governed by s. 272(1)(c) of the Criminal Code.[5]
[58] The degree of bodily harm required for a conviction under s. 272(1)(c) is defined in s. 2 of the Criminal Code: “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.” This has been described as setting a low threshold, capturing a great range of possible bodily harms beyond “merely transient or trifling in nature”, including harm that is minor and resolves relatively quickly: see e.g., Barton No. 2, at para. 183; R. v. Chahal, 2023 ABCJ 105, at paras. 7-11, rev’d on other grounds, 2024 ABCA 218, 439 C.C.C. (3d) 238; R. v. Androsoff, 2023 SKCA 42, 424 C.C.C. (3d) 475, at para. 41; R. v. Kooner, 2023 BCCA 8, at para. 50, leave to appeal refused, [2024] S.C.C.A. No. 3; Saulis v. R., 2020 NBCA 36, at para. 11; R. v. Bulldog, 2015 ABCA 251, 326 C.C.C. (3d) 385, at para. 44; R. v. Moquin, 2010 MBCA 22, 253 C.C.C. (3d) 96, at para. 23; R. v. Kinde, 2001 BCCA 379, at paras. 7-8; R. v. Dixon (1988), 1988 CanLII 2824 (BC CA), 42 C.C.C. (3d) 318 (B.C.C.A.), at p. 332.
[59] Again, in cases predicated on non-consent, the Crown is not required to prove that the accused intended the bodily harm; all that is required is that the risk of some type of bodily harm was objectively foreseeable: R. v. D.K., 2020 ONCA 79, 384 C.C.C. (3d) 405, at para. 23, leave to appeal refused, [2020] S.C.C.A. No. 87; R. v. Graham, 2019 ONCA 347, 377 C.C.C. (3d) 205, at para. 23; R. v. Nelson, 2014 ONCA 853, 318 C.C.C. (3d) 476, at para. 25.
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