R v. McPhee – 2018 ONCA 1016 (Hoy):

[1] A. HOY A.C.J.O.:– On September 12, 2013, the appellant, Jordan McPhee, threw a single punch at Kevin Dhillon, his cellmate at the Maplehurst Correctional Facility. The punch landed on Dhillon’s face, beside his left eye, and broke his orbital bone. Dhillon required surgery as a result.
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[9] It was common ground at trial that the appellant punched Dhillon in the face, thereby breaking his orbital bone. The issues at trial were whether the defence of self-defence or consent precluded a conviction, and whether what occurred constituted “maiming” as referred to in s. 268 of the Criminal Code.
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[31] Based on his review of R. v. Schultz (1962), 133 C.C.C. 174 (Alta. S.C.(A.D.)), leave to appeal refused, [1962] S.C.R. x, and the cases that have come after it, the trial judge concluded that there were two possible definitions of the word “maim”. He wrote, at para. 155:
One contemplates that a complainant has lost the use of some part of the body or
bodily function, and the other is where the assailant causes bodily harm to the
victim to such an extent that it renders the victim less able to fight back or to
defend himself or herself. The latter meaning has clearly been established here.
The extent of damage to [Dhillon] clearly rendered him unable to fight back.
However, it has also been established that [Dhillon] has lost, to some extent, the
ability to focus his eyes as result of his injury. That is sufficient to constitute
maiming; see R. v. Stehniy, [2010 ONCA 269].
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[40] Accordingly, I depart from Schultz insofar as it supports a definition of “maiming” tied exclusively to the ability to fight back or defend oneself.

[41] That said, I agree with Schultz to the extent that it recognizes that the loss of the use or function of some part of the victim’s body need not necessarily prove to be permanent in order for “maiming” to be made out. This is because Schultz, and the cases that followed it,3 focused on the victim’s ability to fight back or defend himself or herself in the fight in which the injury was sustained, rather than the victim’s ability to do so in future fights. This acknowledgement that permanence is not always required also makes sense, given modern medicine’s increasing ability to correct or repair what were once thought to be permanent injuries.

[42] In this case, it is helpful to consider the nature of the injury suffered by Dhillon. The appellant’s punch to the left side of Dhillon’s face broke Dhillon’s orbital bone. The nurse at the correctional facility who saw Dhillon before he was taken to hospital by ambulance described his face as “caved in”. The doctor who examined Dhillon before surgery described the fracture as significantly displaced and comminuted. The injury was not transitory. Corrective surgery was required. Following surgery to repair the damage, it took about one week before Dhillon could eat properly again and about two weeks before he could open his left eye and speak normally again. Moreover, even now, Dhillon’s eye twitches and he cannot adjust his eye to the sun. The latter issue affects Dhillon when he is driving, because he has to keep his eye down and cannot focus on the road. Even when driving at night, when lights are coming right at Dhillon, he has to look somewhere else because he cannot visually focus on the light. Dhillon also continues to experience pain in his gum area.

[43] In sum, Dhillon suffered a significant loss of the use or function of certain parts of his body — specifically, his left eye and mouth. He was maimed and the appellant was properly convicted of aggravated assault.