New & Notable: "Violence", its really not that hard to define

Randy Smith is a violent criminal with a lengthy criminal record. His most recent foray involved a short crime spree during which he robbed, or attempted to rob, four different persons; assaulted some of them and drove in a dangerous manner causing injuries to persons when he did.


After his conviction the Crown sought to have him declared a dangerous offender. An issue arose as to whether any of the offences were “serious personal injury offences” as defined in section 752 (which is required for an assessment under section 752.1). Kiteley J held that they were not, applying an objective standard of “serious” violence: 2010 ONSC 4725. The Crown appealed. The Court of Appeal allowed he appeal and clarified the issue: 2012 ONCA 645.


Section 752.1 permits the ordering of an assessment, as a first step in a dangerous offender application where, inter alia, the offender has committed a  “serious personal injury offence” [SIPO]. SIPO is defined in section 752 to include “the use or attempted use of violence”.


The precise issue before the trial judge, Kiteley J, was whether any “violent” act would satisfy the requirement of the use of “violence” in the definition of serious personal injury offence. Kiteley J set out the issue as follows:


I start with whether Mr. Smith has been convicted of a serious personal injury offence.  That is defined in s. 752 to mean an indictable offence involving the use or attempted use of violence against another person, or conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person and for which the offender may be sentenced to imprisonment for ten years or more.  The definition of “serious personal injury offence” does not refer to the definitions of “designated offence” or “primary designated offence”.  

There has been a debate on the issue as to whether the offender need simply to have been convicted of an enumerated offence or whether the court must apply an objective standard of seriousness [paras 23-24]; [emphasis added].


Kiteley J then undertook an analysis of this debate by considering the divergent lines of authority.


In R v Neve, 1999 ABCA 206 it was held that not any “violent” offence satisfied this definition. The court was required to undertake an analysis of the act to determine if the act was objectively serious. This was required as the court was to act as a gatekeeper to the dangerous offender designation which was being sought through this analysis.


In R v Goforth, 2005 SKCA 12 it was held that this objective standard was not required. Any violence was sufficient. 


Kiteley J favoured the approach in Neve. With respect, that was not the proper approach to follow. I discussed this at length in Mack’s Criminal Law Bulletin, 2012-01: Serious Personal Injury Offence.


The Ontario Court of Appeal has agreed with me – although they did not expressly say so.


In a short endorsement the court indicated that the approach in Goforth ws the appropriate one:


We agree with and adopt the careful and cogent reasons of Cameron J.A. in R. v. Goforth 2005 SKCA 12 (CanLII), (2005), 193 C.C.C. (3d) 354, leave to appeal to SCC refused, [2005] S.C.C.A. No. 456.  That court’s analysis of the relevant definition in s. 752.1 was approved in R. v. Lebar (2010), 252 C.C.C. (3d) 411 albeit in the context of s. 742.1 [para 2].


Pursuant to Smith, in Ontario at least, a serious personal injury offence includes any “violent” offence. There is no objective standard of seriousness that must be met.