R. v. Lamy, [2002] 1 S.C.R. 860, 2002 SCC 25

Her Majesty The Queen Appellant

v.

Éric Lamy Respondent

and

The Attorney General of Canada Intervener

Indexed as: R. v. Lamy

Neutral citation: 2002 SCC 25.

File No.: 28158.

Hearing and judgment: February 12, 2002.

Reasons delivered: March 21, 2002.

Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for quebec

Criminal law – Elements of offence – Sexual assault with a weapon – Definition of weapon – Whether use of bamboo dildo in sexual assault constituting sexual assault with a weapon – Meaning of term “injury” in definition of “weapon” in s. 2 of Criminal Code – Criminal Code, R.S.C. 1985, c. C‑46, ss. 2, 272(1)(a).

The accused was convicted at trial of sexual assault with a weapon and of anal intercourse. During the sexual assault, the accused penetrated the complainant with a long bamboo dildo in the shape of a baseball bat. The Court of Appeal held that the trial judge erred in concluding that the forced introduction of an object into the vagina of the complainant was sufficient to constitute sexual assault with a weapon. Accordingly, the Court of Appeal substituted a conviction for the included offence of sexual assault simpliciter and reduced the sentence imposed at trial.

Held: The appeal should be allowed. The verdict and the sentence should be restored.

If an object is used in inflicting injury, be it physical or psychological, in the commission of a sexual assault, it is not necessary that the injury amount to bodily harm to trigger the application of s. 272(1)(a) of the Criminal Code. In the present case, there was evidence of injury. The assault hurt the complainant and there was extensive bruising in her groin area. The complainant bled sufficiently that traces of blood were left on the accused’s sofa. A proper application of the criminal causation rules allowed the trial judge to conclude that the complainant was injured by the sexual assault, and that the use of the object was sufficiently linked to the injuries to allow the conclusion that the object used in committing the assault was a weapon as defined in s. 2 of the Criminal Code. With respect to the mental element required to make an object a weapon, taken literally, the French version of s. 2 could suggest that an object must be designed, used or intended to be used for the purpose of causing injury in order to become a weapon. However, the English text clarifies that when an object is actually used in causing death or injury, the object need not be used for the purpose of killing or injuring, but merely in causing injury or death. The accused must knowingly or recklessly use the object without the consent of the victim in circumstances where injury was reasonably foreseeable. Here the accused sexually assaulted the complainant and caused her injuries by the use of force which included forcible penetration with an object. It squarely falls within the definition of s. 2 to conclude that the object was used in causing injury, thereby constituting a weapon.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1985, c. C‑46, ss. 2 “bodily harm” [ad. 1994, c. 44, s. 2(2)], “weapon” [repl. 1995, c. 39, s. 138(1)], 159(1), 272(1)(a) [idem, s. 145], (c) [idem].

APPEAL from a judgment of the Quebec Court of Appeal, J.E. 2000‑1466, [2000] Q.J. No. 2267 (QL), dismissing the accused’s appeal from his conviction on a charge of sexual assault with a weapon and substituting a conviction on a charge of sexual assault. Appeal allowed.

Jacques Mercier, for the appellant.

Louis Gélinas and Yvan Braun, for the respondent.

Bernard Laprade, for the intervener.

The judgment of the Court was delivered by

Arbour J. –

I. Introduction

[1] This appeal involves the interpretation of the provisions of the Criminal Code, R.S.C. 1985, c. C-46, dealing with sexual assault with a weapon. It invites us to examine the circumstances in which the use of an object in the course of a sexual assault can amount to the offence contemplated by s. 272(1)(a) of the Code.

[2] The accused was convicted at trial of sexual assault with a weapon (s. 272(1)(a)) and of anal intercourse (s. 159(1)). However, upon a concession made by the Crown that it had not met its burden of proof, the accused was acquitted of sexual assault causing bodily harm (s. 272(1)(c)).

[3] There is no issue before us as to the conviction for anal intercourse or whether the accused committed a sexual assault. The only issue is whether, in the circumstances, the respondent was properly convicted of sexual assault with a weapon.

II. Facts

[4] The respondent met the complainant, a 20-year-old woman, in a bar and offered to drive her to a pre-arranged meeting with her friends. En route, he indicated that he had to stop at his home and invited her in. He then proceeded to kiss her, against her protestations, and he pushed her down onto a sofa. He held her there, against her will, undressed her and penetrated her vagina with his penis. He then turned her around and penetrated her anus. He turned her again and at this point she realized that he was inserting an object into her vagina. In her evidence she described that object as a stick, which she thought at the time might be a billiard queue. The instrument used by the accused to penetrate the victim was a decorated bamboo dildo, which the respondent said he had purchased as a sexual aid in a shop in Mexico. This dildo is in the shape of a baseball bat, and is approximately 24 inches long. Although the complainant thought that the large end of the stick had been used to penetrate her, the samples taken for DNA analysis revealed that it is the thin end of the dildo that was inserted into her vagina.

[5] The complainant testified that the respondent’s assault hurt her, and that she was bleeding afterwards. She had recently had a uterine infection and thought that this might have contributed to the bleeding. The respondent denied sexually assaulting the complainant. He claimed that she was a consenting partner and that she had responded enthusiastically to his advances. As for the use of the dildo, he testified that the complainant had used it to masturbate herself. He admitted that this object belonged to him and said that he had used it in the past with several other partners as a sexual stimulant.

[6] The trial judge accepted the evidence of the complainant, gave detailed reasons as to why he did not accept the respondent’s version and concluded that there was no doubt that the accused had committed a sexual assault with a weapon. He did so without reference to the definition of “weapon” in s. 2 of the Criminal Code.

[7] The Court of Appeal reversed the conviction for sexual assault with a weapon, substituted a conviction for the included offence of sexual assault simpliciter, and reduced the sentence accordingly. The Court of Appeal held that the trial judge erred in concluding that the forced introduction of an object into the vagina of the complainant was sufficient to constitute sexual assault with a weapon, as that term is defined in the Code.

III. Analysis

[8] For purposes of analysis, the relevant sections of the Criminal Code, must be set out in both French and English:

2. In this Act,

“weapon” means any thing used, designed to be used or intended for use

(a) in causing death or injury to any person, or

(b) for the purpose of threatening or intimidating any person

and, without restricting the generality of the foregoing, includes a firearm;

2. Les définitions qui suivent s’appliquent à la présente loi.

« arme » Toute chose conçue, utilisée ou qu’une personne entend utiliser pour soit tuer ou blesser quelqu’un, soit le menacer ou l’intimider. Sont notamment visées par la présente définition les armes à feu.

272. (1) Every person commits an offence who, in committing a sexual assault,

(a) carries, uses or threatens to use a weapon or an imitation of a weapon;

(b) threatens to cause bodily harm to a person other than the complainant;

(c) causes bodily harm to the complainant; or

(d) is a party to the offence with any other person.

272. (1) Commet une infraction quiconque, en commettant une agression sexuelle, selon le cas :

a) porte, utilise ou menace d’utiliser une arme ou une imitation d’arme;

b) menace d’infliger des lésions corporelles à une autre personne que le plaignant;

c) inflige des lésions corporelles au plaignant;

d) participe à l’infraction avec une autre personne.

[9] There is no appeal from the acquittal on the charge of sexual assault causing bodily harm. It is also common ground that the dildo was not a “thing . . . designed to be used” to kill, injure, threaten or intimidate. The Crown contends that the respondent may be found guilty under s. 272(1)(a) if he uses “any thing . . . in causing . . . injury to any person” (in French: s’il utilise “toute chose . . . pour . . . blesser quelqu’un”). The Crown argues that when an object is actually used in causing injury, it is not necessary to prove that the accused subjectively intended that it be used for that purpose.

[10] The Court of Appeal concluded otherwise, referring only to the French version of the definition of weapon which, taken alone, could be read to suggest that for an object to become a weapon it must be designed, used, or intended to be used for one of the prohibited purposes. The court held that a subjective test had to be applied and that in order to be found guilty an accused had to have an intention to use the object as a weapon. The court found that the trial judge could not conclude that the respondent had used the dildo for any of the prohibited purposes. It was not used to kill, threaten or intimidate; in light of the acquittal on the bodily harm offence, the Court of Appeal seems to have concluded that the dildo was also not used to injure.

[11] With respect, the conclusion reached by the Court of Appeal rests on an insufficient analysis of the legal requirements of the offence, and on a misapplication of the law to the facts. In particular, the Court of Appeal did not refer to the English version of the definition of “weapon” in the Code, which would have dissipated any ambiguity which might arise from the French text.

[12] On the facts of this case, it was in my view entirely open to the trial judge to find that the object was used by the accused as a weapon in that it was used “in causing . . . injury” to the victim. This conclusion requires a proper understanding of the term “injury” in s. 2, and of the intent required to turn an object into a weapon within the meaning of that section.

[13] The expression “injury” in s. 2 is not synonymous with “bodily harm”. Sexual assault causing bodily harm is the object of a separate offence, provided for by s. 272(1)(c). The expression “bodily harm”, which is broadly used in the context of assaults, is defined in s. 2 to mean “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” (emphasis added). This in itself is sufficient to establish that the acquittal of the respondent on the charge of sexual assault causing bodily harm is not dispositive of the question of whether he used an object “in causing . . . injury” so as to make that object a weapon. One cannot go as far as the appellant argues, and conclude that because all cases of sexual assault cause injury (physical or psychological), that therefore if an object is used in the course of any sexual assault, the charge of sexual assault with a weapon is automatically made out. On the other hand, if an object is used in inflicting injury, be it physical or psychological, in the commission of a sexual assault, it is not necessary that the injury amount to bodily harm to trigger the application of s. 272(1)(a).

[14] Without providing an exhaustive definition of “injury” or a catalogue of distinctions between “injury” and “bodily harm”, it is sufficient to say here that there was evidence of injury. The complainant testified that the assault was hurting her, and the doctor who examined the complainant testified to finding extensive recent bruising in her groin area. She bled sufficiently that traces of blood were left on the respondent’s sofa. The respondent, who is now admittedly guilty of sexual assault, cannot exonerate himself from having caused the injury by claiming that the bleeding may have been triggered by a pre-existing medical condition of the victim. In the same way, it is not open to him to claim, in the circumstances of this case, that the injuries to the complainant may not be attributable to the insertion of the object in her vagina against her will, but may have resulted from the part of the assault in which no object was used. In my view, a proper application of the criminal causation rules allowed the trial judge to conclude that the complainant was injured by the sexual assault committed on her by the respondent, and that the use of the object was sufficiently linked to the injuries to allow the conclusion that the object used in committing the assault was a weapon as defined in s. 2. This reasoning applies equally to physical and psychological injuries.

[15] The Court of Appeal also failed to distinguish the various mental elements required to make an object a weapon under s. 2. As indicated earlier, the French version of the definition of “weapon” (“arme”) in s. 2, taken literally, could suggest that for an object to become a weapon, it must be designed, used, or intended to be used for the purpose of causing injury. The English version provides a clarification that is consistent with a sound interpretation of the intent required for an object to become a weapon in all the different sets of circumstances contemplated by the provision. In contrast to the design, the use or the intended use of an object to threaten or intimidate, when an object is actually used in causing death or injury, the English text does not import a requirement that the object be used “for the purpose” of killing or injuring, but merely “in causing” death or injury.

[16] It is sensible to distinguish between the design of an object and its intended use from its actual use in causing injury in the commission of a sexual assault. A causal connection must obviously exist between the injury caused by the sexual assault and the use of an object while performing the assault. For instance, if an accused compelled a victim to wear a particular article of clothing while he sexually assaulted her, even if injuries were sustained in the assault, the piece of clothing would obviously not become a weapon. In the same way, the accused must have knowingly or recklessly used the object without the consent of the victim in circumstances where injury was reasonably foreseeable. When an accused, as here, sexually assaults the complainant, by using force against her without her consent, and causes her injuries by the use of such force which includes forcible penetration with an object, I think that it falls squarely within the definition of s. 2 to conclude that the object was used in causing injury, thereby constituting a weapon.

[17] Although the trial judge did not refer to the above analysis, his conclusions are consistent with a proper interpretation of the law. However, the Court of Appeal did err in finding that there was no evidence of injury, and in concluding that the dildo was not used with the subjective intent of causing injury. When an accused knowingly or recklessly applies force and sexually assaults a complainant, if he uses an object in doing so, and if the object contributes to the harm caused to the victim by the assault, the accused cannot escape a conviction for sexual assault with a weapon by claiming that his intention was to sexually stimulate the person that he was otherwise assaulting.

IV. Disposition

[18] At the conclusion of the hearing of this appeal, the Court allowed the appeal and restored the trial judge’s verdict and sentence.

Appeal allowed.

Solicitor for the appellant: The Attorney General’s Prosecutor, Shawinigan.

Solicitor for the respondent: Louis Gélinas, Montréal.

Solicitor for the intervener: The Attorney General of Canada, Ottawa.