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Date: Thu, 23 Mar 2006 12:36:44 -0500 From: Rande Kostal Subject: A Question on Consent -- a relevant Canadian case
Those interested in this question might want to have a look at R v. Jobidon [1991] 2 S.C.R. (SCC). There has been speculation among Canadian jurists both about whether the decision is "right" as criminal law, and about the and its applicability in civil cases. I don't believe the latter point has ever been addressed by a Canadian appellate court.
Rande Kostal
R v. Jobidon 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. Link: http://www.lexum.umontreal.ca/csc-scc/en/pub/1991/vol2/html/1991scr2_0714.html
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