R. v. Jobidon

R. v. Jobidon
Collection
Supreme Court Judgments
Date
1991-09-26
Report
[1991] 2 SCR 714
Case number
21238
Judges
La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; Stevenson, William; Iacobucci, Frank
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 21238
Decision Content
R. v. Jobidon, [1991] 2 S.C.R. 714
Jules Jobidon Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Jobidon
File No.: 21238.
1991: March 28; 1991: September 26.
Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, Stevenson and Iacobucci JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Assault ‑‑ Consent ‑‑ Fist fights ‑‑ Victim killed by accused in consensual fist fight ‑‑ Court of Appeal setting aside accused's acquittal on charge of manslaughter ‑‑ Whether absence of consent essential element of offence of assault ‑‑ Whether there are common law limitations on consent applying to fist fights where bodily harm is intended and caused ‑‑ Criminal negligence ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 8 , 222 , 265 .
The accused was charged with manslaughter, through the offence of assault, following a fist fight. The fight started in a bar. The victim had been prevailing when the owner separated them and told the accused to leave. He left and waited outside in the parking lot. When the victim came out, a crowd of people gathered around them to see the fight. While both men stood facing each other, the accused struck the victim with his fist, hitting him with great force on the head, knocking him backwards onto the hood of a car. The accused continued forward and, in a brief flurry, struck the victim repeatedly on the head. The victim rolled off the hood and lay limp. He was taken to the hospital where he died. At trial, the accused was found not guilty of manslaughter. The judge held that the victim's consent to a "fair fight" negated assault, and held further that the accused had not been criminally negligent. The Court of Appeal set aside the acquittal and substituted a guilty verdict on the charge of manslaughter. This appeal raises the issue as to whether absence of consent is an element which must be proved by the Crown in all cases of assault under s. 265 of the Criminal Code or whether there are common law limitations which restrict or negate the legal effectiveness of consent in certain types of cases. A secondary issue is whether the accused could be convicted of manslaughter on a basis other than that of an unlawful act of assault.
Held: The appeal should be dismissed.
Per La Forest, L'Heureux-Dubé, Gonthier, Cory and Iacobucci JJ.: Section 265 of the Code should be read in light of the common law limitations on consent. Section 265 sets out a general rule that one cannot commit assault if the other person agrees to the application of force. However, while s. 265 states that all forms of assault, including assault causing bodily harm, are covered by the general rule, it does not define the situations or forms of conduct or eventual consequences which the law will recognize as being valid objects of consent for the purpose of the offence. The common law has generated a body of law to illuminate the meaning of consent and to place certain limitations on its legal effectiveness in the criminal law. It has also set limits on the types of harmful actions to which one can validly consent, and which can shelter an assailant from the sanctions of the criminal law. Section 8 of the Code indicates that common law principles continue to apply to the extent that they are not inconsistent with the Code or other Act of Parliament and have not been altered by them. In particular, s. 8(3) of the Code expressly provides that exculpatory defences continue so to operate to exclude criminal liability.
Limits on consent to assault have long been recognized by English and Canadian courts. Although there is no clear position in the modern Canadian common law, when one takes into account the combined English and Canadian jurisprudence, when one keeps sight of the common law's persistence to limit the legal effectiveness of consent to a fist fight, and when one understands that s. 265 has always incorporated that persistence, the scale tips heavily against the validity of a person's consent to the infliction of bodily injury in a fight. The relevant common law policy considerations also support that conclusion. It is not in the public interest that adults should willingly cause harm to one another without a good reason. There is no social value in fist fights or street brawls. These activities may even lead to serious breaches of the public peace.
Here, the victim's consent to a fair fight did not preclude commission of the offence of assault under s. 265 of the Code. The limitation demanded by s. 265 vitiates consent between adults intentionally to apply force causing serious hurt or non‑trivial bodily harm to each other in the course of a fist fight or brawl. This is the extent of the limit which the common law requires in the factual circumstances of this appeal. This formulation will not affect the validity or effectiveness of freely given consent to rough sporting activities carried out according to the rules of the game, medical or surgical treatment, or dangerous exhibitions by qualified stuntmen.
The provisions of the Code have not ousted the common law limitations on consent. First, Parliament, by setting out factors that may vitiate consent in s. 265(3) of the Code, did not intend to replace any common law rules that might have negated the legal effectiveness of consent to an act which would otherwise constitute assault. That list merely made concrete basic limits on the legal effectiveness of consent which had for centuries formed part of the criminal law in England and in Canada. The history of our criminal law reveals that codification did not replace common law principles of criminal responsibility, but in fact reflected them. That history also reveals that limitations on consent based on public policy existed before the codification of Canada's criminal law and they have not been ousted by statutory revisions and amendments made to the Code. Accordingly, even if it could be concluded that s. 265(3) negated the applicability of common law rules which describe when consent to assault will be vitiated for involuntariness or defects in the will underlying the apparent consent, it would not follow that those amendments erased limitations based on public policy. Parliament, if it had so intended, would have stated that intention. Section 8(3) of the Code strongly suggests preservation of the common law approach to consent in assault. Second, by specifying in s. 265(2) that s. 265 is to apply to all forms of assault, Parliament did not intend to eliminate the common law prescription of objects or forms of conduct to which legally effective consent may not be given. Rather, Parliament sought to ensure that the basic elements of the offence of assault in ss. 265(1)(a) to (c), the circumstances listed in s. 265(3) for vitiating consent due to a coerced or misinformed volition, and the required state of mind for raising a defence in s. 265(4), would be applied without exception, irrespective of the peculiar form of assault.
While a fist fight constitutes a situation in which the concept and term "assault" fit quite naturally, criminal negligence is less well tailored to that kind of situation. In a fist fight, there is an obvious intention to apply force to the other person. This conscious regard for some level of harmful consequence to the physical integrity of another person distinguishes assault from criminal negligence, where there is actually a disregard for the likely impact of one's conduct on the other's physical safety.
Per Sopinka and Stevenson JJ.: Consent cannot be read out of the offence: it is a fundamental element of many criminal offences, including assault, and the statutory provision creating the offence of assault explicitly provides for the element of consent. The victim's consent, while it cannot transform a crime into lawful conduct, is a vital element in determining what conduct constitutes a crime. The absence of consent is an essential ingredient of the actus reus and is often confused with the defence of honest belief in consent which relates not to the actus reus of the offence but to the mens rea or mind state of the accused. An honest belief that there was consent may constitute a defence even though there was no consent.
Parliament extended the principle that an absence of consent is necessary to all assaults, except murder, in order to make the criminal law more certain. Section 265 was neither to outlaw consensual fighting nor to allow it if the trial judge thought it socially useful in the circumstances. Rather, s. 265 makes the absence of consent a requirement in the offence and restricts that consent to situations where force has been intentionally applied and where the victim has clearly and effectively consented free of coercion and misrepresentation. The scope of consent to an assault must be closely scrutinized. The trial judge must decide whether that consent applied to the activity which is the subject of the charge instead of evaluating the utility of the activity. The more serious the assault, the more difficult it should be to establish consent.
The absence of consent cannot be swept away by a robust application of judge‑made policy. Use of the common law to eliminate an element of the offence that is required by statute is more than interpretation and is contrary to the letter and spirit of s. 9(a) which provides that no person should be convicted of an offence at the common law.
Given the danger inherent in the violent activity in this case, the scope of the consent required careful scrutiny. The trial judge found that the victim's consent did not extend to a continuation of the fight once he had lost consciousness. The accused, by continuing to pummel the victim after he knew the victim was unconscious, knowingly acted beyond the ambit of the victim's consent. Given the finding that the accused committed an assault and given that the victim died as a result of that unlawful act, the accused is guilty of manslaughter under ss. 222(5) (a) and 234 of the Criminal Code .
Cases Cited
By Gonthier J.
Considered: Attorney General's Reference (No. 6 of 1980), [1981] 2 All E.R. 1057; R. v. Coney (1882), 8 Q.B.D. 534; R. v. Donovan, [1934] All E.R. 207; approved: R. v. Buchanan (1898), 1 C.C.C. 442; R. v. Cullen (1948), 93 C.C.C. 1 (Ont. C.A.), aff'd [1949] S.C.R. 658; R. v. Squire (1975), 26 C.C.C. (2d) 219 (Ont. C.A.), rev'd on other grounds, [1977] 2 S.C.R. 13; R. v. Kusyj (1983), 51 A.R. 243; R. v. Gur (1986), 27 C.C.C. (3d) 511; R. v. Cey (1989), 48 C.C.C. (3d) 480; R. v. McIntosh (1991), 64 C.C.C. (3d) 294; disapproved: R. v. Dix (1972), 10 C.C.C. (2d) 324; R. v. MacTavish (1972), 8 C.C.C. (2d) 206; R. v. Abraham (1974), 30 C.C.C. (2d) 332, 26 C.R.N.S. 390; R. v. Setrum (1976), 32 C.C.C. (2d) 109; R. v. Bergner (1987), 36 C.C.C. (3d) 25; R. v. Loonskin (1990), 103 A.R. 193; referred to: Bradley v. Coleman (1925), 28 O.W.N. 261; R. v. Carriere (1987), 56 C.R. (3d) 257; R. v. Crouse (1982), 39 N.B.R. (2d) 1; R. v. Jerome, [1990] 1 W.W.R. 277; Kirzner v. The Queen, [1978] 2 S.C.R. 487; Amato v. The Queen, [1982] 2 S.C.R. 418; R. v. March (1844), 1 Car. & K. 496, 174 E.R. 909; R. v. Lock (1872), L.R. 2 C.C.R. 10; Wright's Case (1603), Co. Litt. f. 127 a‑b; Matthew v. Ollerton (1693), Comb. 218, 90 E.R. 438; Boulter v. Clarke (1747), Bull. N.P. 16; R. v. Lewis (1844), 1 Car. & K. 419, 174 E.R. 874; R. v. Barron (1985), 23 C.C.C. (3d) 544.
By Sopinka J.
Referred to: Lemieux v. The Queen, [1967] S.C.R. 492; Pappajohn v. The Queen, [1980] 2 S.C.R. 120; Attorney General's Reference (No. 6 of 1980), [1981] 2 All E.R. 1057.
Statutes and Regulations Cited
Act respecting Offences against the Person, S.C. 1869, c. 20.
Criminal Code, R.S.C. 1927, c. 36, s. 290.
Criminal Code, R.S.C. 1970, c. C‑34, ss. 7, 205, 244 [rep. & sub. 1974‑75‑76, c. 93, s. 21; rep. & sub. 1980‑81‑82‑83, c. 125, s. 19].
Criminal Code, R.S.C., 1985, c. C‑46, ss. 8 , 9 [rep. & sub. c. 27 (1st Supp.), s. 6 ], 14, 83 [am. c. 27 (1st Supp.), s. 186 (Sch. IV, item 1], 150.1 [ad. c. 19 (3rd Supp.) s. 1 ], 159 [ad. idem, s. 3 ], 222, 234, 265, 267(2), 286.
Criminal Code, S.C. 1953‑54, c. 51, s. 230.
Criminal Code, 1892, S.C. 1892, c. 29, s. 258.
Offences Against the Person Act, 1861 (U.K.), 24 & 25 Vict., c. 100.
Authors Cited
Bryant, Alan W. "The Issue of Consent in the Crime of Sexual Assault" (1989), 68 Can. Bar Rev. 94.
Canada. Law Reform Commission. Towards a Codification of Canadian Criminal Law. Ottawa: The Commission, 1976.
Canada. Law Reform Commission. Report 31. Recodifying Criminal Law. Ottawa: The Commission, 1987.
Canada. Law Reform Commission. Working Paper 38. Assault. Ottawa: The Commission, 1984.
Clarkson, C. M. V. and H. M. Keating. Criminal Law: Text and Materials, 2nd ed. London: Sweet & Maxwell, 1990.
Colvin, Eric. Principles of Criminal Law. Toronto: Carswells, 1986.
Fletcher, George P. Rethinking Criminal Law. Boston: Little, Brown & Co., 1978.
Mewett, Alan W. and Morris Manning. Criminal Law, 2nd ed. Toronto: Butterworths, 1985.
Parker, Graham. "The Origins of the Canadian Criminal Code". In David H. Flaherty, ed., Essays in the History of Canadian Law, vol. I. Toronto: University of Toronto Press, 1981.
Russell on Crime, vol. 1, 12th ed. By J. W. Cecil Turner. London: Stevens & Sons, 1964.
Stephen, Sir James Fitzjames. A General View of the Criminal Law of England, 2nd ed. London: MacMillan and Co., 1890.
Stuart, Don. Canadian Criminal Law: A Treatise, 2nd ed. Toronto: Carswells, 1987.
Watt, David. The New Offences Against the Person: The Provisions of Bill C‑127. Toronto: Butterworths, 1984.
Williams, Glanville. Textbook of Criminal Law, 2nd ed. London: Stevens & Sons, 1983.
APPEAL from a judgment of the Ontario Court of Appeal (1988), 45 C.C.C. (3d) 176, 67 C.R. (3d) 183, 30 O.A.C. 172, allowing the Crown's appeal from a judgment of Campbell J. (1987), 36 C.C.C. (3d) 340, 59 C.R. (3d) 203, acquitting the accused on a charge of manslaughter. Appeal dismissed.
Brian H. Greenspan, for the appellant.
W. J. Blacklock and J. Klukach, for the respondent.
//Gonthier J.//
The judgment of La Forest, L'Heureux-Dubé, Gonthier, Cory and Iacobucci JJ. was delivered by
Gonthier J. -- At issue in the present appeal is the role of consent in the criminal offence of assault. More particularly, the issue is whether the absence of consent is an essential element of this offence when it relates to a fist fight where bodily harm is intentionally caused.
I -- Statement of Facts
The appellant, Jules Jobidon, was charged with manslaughter for the unlawful act of killing Rodney Haggart -- through the offence of assault (alternatively, through an act of criminal negligence). The incident leading to the charge was a fist fight between the two men, in a parking lot outside a hotel near Sudbury, Ontario, on September 19, 1986. At the date of the killing, Rodney Haggart was 25 years old. He had consumed some beer. His blood alcohol level, measured a few hours after the incident, was 160 milligrams of alcohol per 100 millilitres of blood, but the trial judge found that Haggart appeared "perfectly fine" and "perfectly normal". Jobidon, a young, fit and powerful man, had also been drinking beer prior to the fight, but in the opinion of the trial judge was not inebriated.
The two men initiated their aggression in the bar of the hotel. With his brother and a few friends, Haggart was celebrating his impending marriage. He approached Jobidon, who was also in the hotel with friends, and started a fight with him. Haggart was larger than the appellant, and had previous training as a boxer. In this first encounter, Haggart was prevailing when the owner of the hotel separated the combatants and told Jobidon and his brother to leave the hotel. Jobidon and Haggart exchanged angry words in the lobby, and the trial judge found that the two men agreed the fight was not over.
Jobidon and his brother waited outside in the parking lot. When the Haggart party exited the hotel their respective older brothers began fighting at the far end of the lot. Jobidon and Haggart argued. A crowd of people, many of whom had come outside to see the fight, gathered around them.
While Haggart and Jobidon stood facing each other, Jobidon struck Haggart with his fist, hitting him with great force on the head and face. Haggart was knocked backward onto the hood of a car. The trial judge determined that Haggart was rendered unconscious by this initial punch and that he appeared to be "out cold". He was not moving and offered no resistance to the appellant.
Immediately after throwing that first punch, Jobidon continued forward. In a brief flurry lasting no more than a few seconds he struck the unconscious victim a further four to six times on the head. The trial judge found that there was no interval between Haggart's fall and the continued punching. The punches were part of "one single continuing transaction . . . one fluid event, punctuated by specific blows". The judge noted that the most reliable witness testified that it all happened so quickly he thought Haggart would bounce off the hood and resume the fight.
Instead, Haggart rolled off the hood and lay limp. He was taken to the hospital in a coma, where he died of severe contusions to the head. Medical evidence showed that he had sustained extensive bruising and abrasions to the head and neck. It was determined that the cause of death was one or more of the punches he had received at the hand of the appellant in the parking lot.
The trial judge found that Jobidon did not intend to kill Haggart, nor did he intend to cause the deceased serious bodily harm. However, the possibility of injury more serious than a bruise or bloody nose, such as a broken nose, was contemplated. Jobidon intentionally hit Haggart as hard as he could, but believed he was fighting fair. He did not depart intentionally from the kind of fight that Haggart had consented to. Jobidon believed that Haggart had consented to a fair fight, the object of which was to hit the other man as hard as physically possible until that person gave up or retreated. The trial judge also found that, although mistaken, and not supported by objective facts, Jobidon honestly believed that after Haggart had been struck onto the hood of the car he was merely stunned, but still capable of fighting back, and still trying to fight.
Jobidon was tried before a judge of the Supreme Court of Ontario, and was found not guilty of manslaughter: (1987), 36 C.C.C. (3d) 340. The judge held that Haggart's consent negated assault, and held further that Jobidon had not been criminally negligent. The respondent appealed the judge's holding of assault to the Ontario Court of Appeal, which allowed the appeal, set aside the acquittal, and substituted a guilty verdict on the charge of manslaughter: (1988), 45 C.C.C. (3d) 176.
Judgments in the Courts Below
Supreme Court of Ontario (Campbell J.)
The trial judge noted that the charge of manslaughter was based on the offence of assault under s. 265 (formerly s. 244) of the Criminal Code, R.S.C., 1985, c. C-46 , and that the Crown was required to prove each of the elements of assault to establish the offence of manslaughter.
The judge characterized the legal issue before him as "whether the consent of the deceased to a fair fist fight provides a defence for the accused" (p. 351). He noted that in England consent does not provide a defence to a charge of assault. Yet, after reviewing the case law, referring to both English and Canadian authorities, he concluded that he was bound by the decision of the Court of Appeal of Ontario in R. v. Dix (1972), 10 C.C.C. (2d) 324 (Ont. C.A.), which held that the defence of consent applies to fist fights. Thus he defined the only material issue before him to be whether the accused went beyond the bounds of the consent. Here, given his finding that the appellant had neither intentionally nor factually exceeded the scope of the deceased's consent -- in part because the shouts from the crowd that it was a "fair fight" bolstered the evidence of the accused -- he held that there had been no assault. Therefore the appellant was not guilty of manslaughter.
Ontario Court of Appeal
In a unanimous decision, five judges of the Ontario Court of Appeal overturned the trial judge's determination, substituting a verdict of guilty on the charge of manslaughter. The court disagreed with the trial judge's interpretation of the role of consent in the offence of assault. It concluded that, primarily for reasons of public policy, there are limitations on the extent of harmful conduct to which one may validly consent and thereby bar conviction for assault. The Court of Appeal held that the applicable limitations on consent are those described in the decision of the English Court of Appeal, Criminal Division, in Attorney General's Reference (No. 6 of 1980), [1981] 2 All E.R. 1057.
The court read Attorney General's Reference as standing for the proposition that "the concept of consent is limited and extends only to the application of force where bodily harm is neither caused no[r] intended" (p. 181). Adoption of that approach entailed that, except for minor struggles, most fights will be unlawful regardless of consent. The Court of Appeal cited the following passage from p. 1059 of Attorney General's Reference:
. . . it is not in the public interest that people should try to cause or should cause each other actual bodily harm for no good reason. Minor struggles are another matter. So, in our judgment, it is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended and/or caused. This means that most fights will be unlawful regardless of consent.
It also explicitly concluded that R. v. Dix, supra, which had accepted that absence of consent was a material element of the offence to be proved by the Crown, was wrongly decided.
Since the trial judge found that Jobidon had intended to cause bodily harm, and in fact caused death, the Court of Appeal held that the Crown was not obliged to prove absence of consent. Therefore, since an unlawful act of assault had been committed, and had resulted in death, the elements of manslaughter had been made out, and the Crown's appeal of the acquittal was allowed.
Issues on Appeal
There is one principal issue raised in this appeal; and one ancillary issue. The principal issue is whether absence of consent is a material element which must be proved by the Crown in all cases of assault or whether there are common law limitations which restrict or negate the legal effectiveness of consent in certain types of cases. A secondary issue is whether Jobidon could be convicted of manslaughter on a basis other than that of an unlawful act of assault.
Resolving the main issue calls for close scrutiny of the relevant statutory provisions and of the pertinent case law. Before moving to that analysis, it is helpful to outline the major arguments made by the parties in this Court.
Appellant's Arguments
The appellant argued that the Ontario Court of Appeal erred in its interpretation of s. 265 of the Criminal Code . Rather than apply the common law understanding of the role of consent -- which sometimes limits its effectiveness as a bar to assault -- the court should have accorded full effect to Haggart's consent, as apparently required by s. 265(1)(a) of the Code.
Section 265(1)(a) states that an assault occurs when, "without the consent of another person, he applies force intentionally to that other person, directly or indirectly". Section 265(2) provides that "This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault." In the appellant's opinion, the trial judge's finding of consent meant that all the elements of the offence of assault had not been proved. The appellant should therefore have been acquitted on that basis, since the legislature intended that consent should serve as a bar to conviction.
According to the appellant, the legislature could have specified that in certain situations, or in respect of certain forms of conduct, absence of consent would not be an operative element of the offence. It has done so with other offences. Parliament has provided that no person is entitled to consent to have death inflicted on him (s. 14). It restricted the concept in ss. 150.1 and 159 of the Code by denying defences to sexual offences based on a child's consent. It also did this in s. 286 by negating the validity of a young person's consent to abduction. But with the assault provisions in s. 265 , it chose not to insert policy-based limitations on the role of consent. Moreover, in s. 265(3), Parliament expressly specified the circumstances in which consent would be vitiated on grounds of involuntariness, but the circumstances described in that subsection do not include the policy limitation applied to fist fights by the English Court of Appeal in the Attorney General's Reference, supra, and infra.
The appellant further observed that, in England, the crime of assault is not defined in a criminal code but in the common law, to which common law limitations and exceptions more naturally apply. In Canada, we have a code of general principles by which, it is presumed, ambiguity is to be construed in favour of the liberty of the subject.
Finally, the appellant argued that the Court of Appeal did not appropriately characterize the Canadian common law. In its opinion, the Canadian jurisprudence shows that one can effectively consent to the application of force in a fist fight even if bodily harm was intended and caused.
Respondent's Arguments
In step with the Court of Appeal, the Crown argued that the overwhelming weight of common law authorities supports the position that one cannot validly consent to intentionally caused bodily harm in all circumstances, and that the law prohibits consent to street brawls or fist fights. It is not in the public interest that people should engage in these sorts of activities, so, on public policy grounds, the word "consent" in s. 265 of the Code should be read in light of the common law, which limits its applicability as a defence to assault. The Crown also noted that fist fighting is without social value and has been outlawed in other common law jurisdictions.
The respondent further submitted that Parliament did not intend to oust the common law limitations on consent. If Parliament had so intended, it would have made that intention far clearer. There exists an established interpretative principle that the legislature does not intend to make substantial changes in the existing law beyond that which is expressly stated in or follows by necessary implication from the statute's language. Thus, since the statute says nothing about common law limitations being erased, one should presume they were left intact.
The respondent argued in the alternative that, if this Court were to overturn the Court of Appeal's approach to consent, the appeal should nevertheless be dismissed because Jobidon caused the death of Haggart through the alternative unlawful act of causing a disturbance by fighting.
II -- Analysis
1. The Evolution of the Offence of Assault in Canadian Criminal Law
To appreciate fully the issue of consent in this appeal, it is helpful to understand the historical evolution of the offence of assault, and to set the current statutory provisions against that background while attending closely to the interrelation of the Criminal Code and the common law. The following analysis is divided in two parts. The first examines the relevant provisions of the Code, describes their origins, and makes a general argument about the nature of the common law's influence on them. The second sets out the specifics of that common law influence as it applies to the particular situation in this appeal.
The basic offence of assault originally came to post-Confederation Canada as a crime of common law. Although the new Dominion, in 1869, enacted a statute (S.C. 1869, c. 20) which simply adopted the English Offences Against the Person Act, 1861 (U.K.), 24 & 25 Vict., c. 100, nevertheless the basic offence of assault was defined at common law. As criminal law historian Sir James Fitzjames Stephen once wrote: "the law which deals with offences against the person [Offences Against the Person Act, 1861] assumes in the reader a previous knowledge of the doctrines of the common law relating to the employment of force against the person of another, and of the common law definitions of certain crimes which the Act punishes but does not define" (A General View of the Criminal Law of England (2nd ed. 1890), at pp. 108-9). The Law Reform Commission of Canada described the relationship this way:
Our law . . . derives from earlier English law. That law in turn was built on two foundation stones -- the common law crimes of assault and battery. In consequence our present law is likewise built on these foundations, although both crimes are lumped together under the same name, "assault".
(Working Paper 38: Assault (1984), at p. 1.)
As a constituent element of numerous crimes, a common assault was any act in which one person intentionally caused another to apprehend immediate and unlawful violence. (C. M. V. Clarkson and H. M. Keating, Criminal Law (2nd ed. 1990); D. Watt, The New Offences Against the Person: The Provisions of Bill C-127 (1984) and Law Reform Commission of Canada, op. cit.) The traditional common law definition always assumed that absence of consent was a required element of the offence. As a general rule, an essential feature of assault is that it takes place against the victim's will. Thus, in most circumstances, it provided a valid defence to an accused. This makes sense when one acknowledges that the genuine consent of a complainant has traditionally been a defence to almost all forms of criminal responsibility. (Russell on Crime (12th ed. 1964), vol. 1, at p. 678, and D. Stuart, Canadian Criminal Law: A Treatise (2nd ed. 1987), at pp. 469-70.)
Canada did not adopt its first criminal code until 1893. So, the English law was the primary foundation of Canadian criminal law. As Canadian courts gradually added to the English jurisprudence, our criminal common law increasingly became a blend of English and Canadian authorities. For decades, though, the definition of assault in Canadian criminal law remained virtually identical to the English common law version. That essential identity was not disturbed when Canada proclaimed its Criminal Code on July 1, 1893 since Canada's codification was very moderate, merely "expressing the common law in neat statutory language to be interpreted by common law judges". (G. Parker, "The Origins of the Canadian Criminal Code", in D. H. Flaherty, ed., Essays in the History of Canadian Law (1981), vol. I, at p. 263. See also Law Reform Commission of Canada, Towards a Codification of Canadian Criminal Law (1976).)
Assault was given its first statutory definition in The Criminal Code, 1892, S.C. 1892, c. 29, in s. 258 which defined it this way:
258. An assault is the act of intentionally applying force to the person of another, directly or indirectly, or attempting or threatening, by any act or gesture, to apply force to the person of another, if the person making the threat has, or causes the other to believe, upon reasonable grounds, that he has, present ability to effect his purpose, and in either case, without the consent of the other or with such consent, if it is obtained by fraud. [Emphasis added.]
This definition reappeared unchanged in s. 290 of the 1927 revision, and in s. 230 of the Code of 1953-54. That definition was renumbered s. 244 in the general statutory revision of 1970, and, following a supplemental change in 1976 (S.C. 1974-75-76, c. 93, s. 21), was expressed as follows:
244. A person commits an assault when
(a) without the consent of another person or with consent, where it is obtained by fraud, he applies force intentionally to the person of the other, directly or indirectly;
(b) he attempts or threatens, by an act or gesture, to apply force to the person of the other, if he has or causes the other to believe upon reasonable grounds that he has present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person and begs.
On January 4, 1983, Bill C-127 was enacted. It amended s. 244 in a few significant ways. The first change was to serialize certain factors which would vitiate consent on the basis of a coerced or ill-informed will, thereby making the consent legally ineffectual (s. 244(3)). As explained below in greater detail, these factors were not new, for they had already been part of the law previous to the proclamation of the Code of 1892. Any novelty of s. 244(3) lay in its more explicit and general expression in the Code, S.C. 1980-81-82-83, c. 125, s. 19.
A second change was the addition of s. 244(4). It simply codified the traditional common law view that an honest belief by the accused that the complainant had consented to an application of force was a good defence to assault. Finally, s. 244(2) clarified that ss. 244(1), 244(3) and 244(4) were to apply to all forms of assault. The number of the assault provision was changed to 265 in the revision of the Criminal Code in 1985, R.S.C., 1985, c. C-46 . The section now reads:
265. (1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
. . .
(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.
(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief.
It can be seen from this brief overview that the absence of consent to intentionally applied force was a material component of the offence of assault throughout its existence in Canada. But it is also evident that consent would not be legally effective in all circumstances. For instance, it would be vitiated by fraud. Various limitations on the validity of consent have a long lineage in the history of the offence. To observe those limitations one must advert to the common law. Yet before turning to that jurisprudence it is important to note the link between the offence of assault and the offence of manslaughter, since Jobidon was convicted of the latter offence.
2. The Nexus Between Assault and Manslaughter
The connection between the two offences of assault and manslaughter is found in s. 222 (formerly s. 205) of the Code. That section provides a definition of manslaughter which is contingent on an unlawful act causing death:
222. . . .
(4) Culpable homicide is murder or manslaughter or infanticide.
(5) A person commits culpable homicide when he causes the death of a human being,
(a) by means of an unlawful act;
The offence of assault is a foundation offence upon which other offences against the person are constructed. Of course assault is also unlawful. It therefore follows from s. 222 that when an assault is committed and causes the death of a person, the assailant is thereby criminally liable for manslaughter. It also follows that if consent acts as a defence to assault, it will indirectly act as a defence to a charge of manslaughter based on assault.
3. The Role and Scope of Consent in Assault
The controversy in this appeal stems from the apparent contradiction between the holding of the Ontario Court of Appeal in the instant appeal and the wording of s. 265(1)(a). By that wording, once the trial judge found that the deceased had consented to a fight with Jobidon, it appears as if he could not have committed the unlawful act of assault since s. 265(2) states a general rule that s. 265 applies to all forms of assault, including assault causing bodily harm. Consequently, given the reference to absence of consent in s. 265(1), proof of consent to a fist fight in which force is intentionally applied and which results in bodily harm would seem to serve as a defence for Jobidon. In that way, ss. 265(1) and 265(2) also appear to support the appellant's position that absence of consent is a requirement to be proved by the Crown beyond a reasonable doubt, in each and every instance of assault. (This understanding of the burden of proof, as distinct from the issue of the universal applicability of the requirement, is not explicit in s. 265 , but it has been so interpreted by the courts, and is supported by some of the most recent academic literature. See, for example, A. W. Bryant, "The Issue of Consent in the Crime of Sexual Assault" (1989), 68 Can. Bar Rev. 94.) Given the prima facie appearance of support for the appellant's position, one might question how the Ontario Court of Appeal could hold that the deceased's consent to a fair fight did not preclude commission of the offence of assault.
That question would be well-aimed. Provincial courts of appeal have grappled with the issue on numerous occasions in recent years, sometimes arriving at divergent conclusions. Legal academics have experienced similar consternation. One has noted that the present state of the law in Canada is "confusing and conflicting". (Bryant, op. cit., n. 24, at p. 99.) Another text states "this area of the law is so nebulous that it is difficult to be very precise" (Mewett and Manning, Criminal Law (2nd ed. 1985), at p. 566). In 1984, the Law Reform Commission of Canada phrased the problem in more detailed terms:
As regards the present law, it is clear that sometimes, as in the case of mere touching, consent is a defence, and that in general, where the contact is intended to cause death or serious harm, consent is no defence. It is also clear that even in circumstances going beyond mere touching (for example, in surgical operations and in lawful sports) consent can prevent the force from being unlawful. What is unclear is the extent to which the same rule applies or does not apply in Canada outside the operating theatre and the sports arena, for example, in sado-masochistic circumstances. [Emphasis added.]
(Working Paper 38: Assault, at p. 24.)
It is the purpose of the remaining analysis to clarify the role of consent in relation to a fist fight or brawl.
(a)The General Influence of the Common Law on the Code's Definition of Assault
Although containing myriad provisions of a relatively detailed nature, the Criminal Code has been inspired by general principles of criminal responsibility. Section 265 is no exception. It speaks in a universal tone and sets out a general rule that one cannot commit assault if the other person agrees to the application of force.
However, while