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The Offences:
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Assault is a mens rea offence; its fault requirement is not satisfied by proof of negligence.
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The act and the mental element of the offence must coexist at some point.
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The act must have been voluntary.
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The absence of consent is part of the actus reus of the offence. The absence of consent must be proven by the Crown beyond a reasonable doubt. Consent is an issue of the actus reus however if the accused believed they had consent then may be used to negate the mens rea issue.
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Statutory restrictions on consent: 265(3), 14, 150.1, 273.
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R v Cuerrier (1998): The issue on appeal here is whether a complainant’s consent to engage in unprotected sex is vitiated by fraud when her partner knows he is HIV positive and either fails to disclose it or deliberately hides it? The main issues in this case centered around whether or not consent was obtained and if so, was it vitiated by fraud? The court found that consent to sexual intercourse had been obtained, however, it had been vitiated by fraud.
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Before this case, consent could only be vitiated by fraud if it went to the “nature and quality of the act.”
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The SCC enunciated a new harm based approached where consent could be vitiated by fraud if:
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1) an act by the accused that a reasonable person would see as dishonest;
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2) a harm, or a significant risk of serious bodily harm;
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3) that the complainant would not have consented but for the dishonesty by the accused.
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Things to note:
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An HIV positive person can be convicted even where the disease is not actually transmitted.
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There is no duty to disclose HIV status except where there is a “significant risk of transmission.”
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Unprotected sex qualifies as a “significant risk.”
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R v Williams (2003): accused failed to disclose HIV positive status and told the complainant that he had a vasectomy; the complainant developed HIV and confronted the accused and he denied ever being tested. She said she would have never had sex with him if she knew he was HIV positive. Issue is whether the accused can be convicted of aggravated assault rather than attempted aggravated assault? Was consent vitiated by fraud? The mens rea for aggravated assault is the mens rea for assault (intent to apply force intentionally or recklessly or being willfully blind to the fact that the victim does not consent) plus objective foresight of the risk of bodily harm (R v Godin).
An accused is guilty of an attempt if he intends to commit a crime and takes legally sufficient steps towards its commission.
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Because he developed the disease while already in the sexual relationship the Crown could not prove beyond a reasonable doubt that the respondant’s sexual conduct endangered the complainant’s life (i.e. she may have already had it).
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The Crown was also unable to prove that intent and the act coincided. Before he found out he was doing the act without intent and after he had intent but may not have been doing the act.
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This case and Cuerrier can be resolved by the fact the in Cuerrier he was deliberately deceitful whereas here he was less so.
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Cuerrier is better law.
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R v Jobidon: Jobidon killed a man named Haggart, who was celebrating his bachelor party, in a fistfight outside of a hotel bar. The men had fought inside the bar, but had been kicked out and continued fighting outside. Although Haggart was bigger, and trained as a boxer, Jobidon landed one punch directly in Haggart's face, which knocked him unconscious and he fell on a hood of a car. Jobidon then punched him four times in the face. Haggart was in a coma and died after being taken to the hospital. Jobidon stated that he did not know that Haggart was unconscious when he continued to hit him as it all happened so fast. Both men had consented to the fight. The appellant was acquitted at trial but convicted upon appeal.
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Is absence of consent a material element that must be proved by the Crown in all cases of assault?
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Jobidon argued that the underlying offence of assault is not applicable because both parties consented to the fight, and assault must lack consent; without this, he cannot be convicted of manslaughter. The court does not accept this; they cite s.14 of the Code, which states that you cannot consent to the imposition of death, and therefore this type of assault was not consented to. They also state that to allow an acquittal is contrary to public policy because Parliament wants to eliminate senseless fighting in society. Not only can you not consent to death, you cannot consent to very violent forms of force that clearly extend beyond the ordinary norms of conduct in the circumstances.
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The Crown must prove a lack of consent beyond a reasonable doubt.
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The common law vitiates consent between adults who intentionally apply force causing serious or non-trivial bodily harm to each other in the course of a fist fight or brawl.
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R v McSorley: McSorley hit Brashear with his hockey stick during a hockey game. Issue was whether or not M’s actions fell within the normal conduct of the game to which B consented. The rules of the game include explicit rules as well as implicit rules, or common occurrences. For example slashing is technically against the rules however it is generally allowed during a play and not to the head.
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M was convicted of assault because his actions did not fall within the normal conduct of the game.
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Implied consent undertaken when participating in a sport is vitiated when conduct falls outside of the normal conduct of the game.
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R v Dewey: Appeal for a conviction for assault causing bodily harm. This case raises the issue of whether objective foreseeability is required for a conviction of assault causing bodily harm. The complainant was fighting with another man in a bar when Mr. Dewey came between them and forcefully shoved the complainant. The trial judge found that he pushed him more forcibly than would cause a stumble.
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Does assault causing bodily harm require objective foreseeability of the risk of bodily harm? YES.
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It is not necessary that the specific type of harm be foreseen. Rather the question is whether it is objectively foreseeable that [forcefully shoving] a person would create a risk of bodily harm that is neither trivial nor transitory.
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Appeal dismissed. Conviction affirmed.
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Defense of Person - Self-Defense: 34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.
(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if (a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and (b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.
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R v Bogue: The appellant and her roommate were drinking and fighting. They got in a serious argument where the deceased picked up a knife and said “I’ll kill you,” to which the appellant pushed him back and stabbed him several times. Self-defense was pleaded. The trial judge directed the jury to consider whether her response was proportional under s. 34(2) of the Code however, proportionality is not a requirement.
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S. 34(1): deals with a situation where the accused repels an unprovoked assault but does not intend to cause death – requires that no more force than necessary be used. Not a strictly objective test. Mistake of fact available here.
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S. 34(2): applies where the accused intentionally kills or causes grievous bodily harm to his assailant – NO proportionality requirement as long as the other conditions are satisfied.
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S. 34(2)(a): must satisfy an objective standard
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S. 34(2)(b): imports a subjective element, however, this belief must meet an objective standard that it is based on “reasonable and probable grounds.” Mistake of fact is available here.
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It was found that there was evidence on which a reasonable jury, properly directed, could have concluded that s. 34(2) was applicable. Appeal allowed. New trial ordered.
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R v Cinous: C was involved in criminal underworld. C was with X and Y and said he knew they were planning on killing him. C went in to store. When came back saw an opportunity and shot X and Y.
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Is there an air of reality to the defense of self-defense?
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Air of reality – whether there is evidence on record upon which a properly instructed jury acting reasonably could acquit.
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Must be some evidence on all 3 elements of the defence of self-defence to give it to the jury
→ Both a subjective and an objective elements (not a modified test). Elements:
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Unlawful attack, (C has this, both objective and subjective)
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Reasonable apprehension of harm and death, and (C has this both ob and sub)
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Reasonable apprehension of no alternative to not be hurt or killed (this is where it fails, on the objective part)
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It is not enough for an accused to establish a subjective conviction that he had no choice but to shoot – the accused must be able to point to a reasonable ground for that belief.
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The belief he had no option but to kill must be objectively reasonable.
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For 34(2) to succeed at the end of the day a jury would have to accept that the accused believed on reasonable grounds that his own safety and survival depended on killing the victim at that moment
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R v Lavallee: Lavallee and her common law partner Rust (the victim) had an abusive relationship, however she kept coming back. On the night of the killing, there was a party at their house. Rust hit her and told her that she was going to "get it" when all the guests left. He threatened to harm her, saying "either you kill me or I'll get you". During the altercation Rust slapped her, pushed her and hit her twice on the head. At some point during the altercation he handed Lavallee a gun, which she first fired through a screen. Lavallee contemplated shooting herself, however when Rust turned around to leave the room she shot him in the back of the head. She was charged with murder. A psychiatrist gave expert evidence at trial describing her state of mind, and that she felt as though she was "trapped" and that she would have been killed if she did not kill him. The jury acquitted her at trial, but this was overturned at the Court of Appeal who ordered a new trial. Lavallee appealed this order to the Supreme Court.
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Can expert evidence be used in a claim of self-defense and if so, to what extent?
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Yes, appeal allowed. Acquittal restored.
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Self-defence applies even when you are not directly or immediately in harm.
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Expert testimony can be very helpful in claims of self-defence as it helps the jury/judge understand the condition that the accused was in when they acted and allows for an objective determination if their actions were reasonable in the circumstances.
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Actions that claim to be in self-defence but are too temporally removed or violent in the circumstances to be considered reasonable will not satisfy the s.34(2) requirements to be a defence.
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Defense of Property: 40. Every one who is in peaceable possession of a dwelling-house, and every one lawfully assisting him or acting under his authority, is justified in using as much force as is necessary to prevent any person from forcibly breaking into or forcibly entering the dwelling-house without lawful authority.
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41. (1) Every one who is in peaceable possession of a dwelling-house or real property, and every one lawfully assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary.
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(2) A trespasser who resists an attempt by a person who is in peaceable possession of a dwelling-house or real property, or a person lawfully assisting him or acting under his authority to prevent his entry or to remove him, shall be deemed to commit an assault without justification or provocation.
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R v Deegan: trial judge failed to charge the jury on s. 41 and only charged on 40 where there was evidence that a reasonable jury, properly instructed, could convict. The law does not require that a man not have an option of retreat before defense of property is available.
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Semaynes Case: “That the house of every one is to him as a) castle and fortress, as well for his defense against injury and violence for his repose…”
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R v Baxter: Appeal by the accused from his conviction and sentence on charges of discharging a fire-arm with intent to would and criminal negligence. The accused heard some shots and a lady said “there is some men out there with guns.” He grabbed two of his guns and went to the his neighbours where the men were and ordered them off the property. They refused and made threats and he again ordered them off the property. The men fired shots from their car and the accused fired back. The issue on appeal is whether the trial judge should have charged on 41(1), should have charged that 34(1) does not import a purely objective test and that mistake of fact is available for s. 34(1) and 34(2).
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It is a great principle of common law that the force used in such circumstances be no more than is necessary, that the harm sought to be prevented could not have been prevented by less violent means, and that the injury of harm done is not disproportioned to the injury or harm it is intended to prevent.
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The existence of 41(2) does not convert mere passive resistance into an assault but merely provides that if force is used by the wrongdoer in resisting an attempt to prevent his entry or to remove him, such force is unlawful and hence an assault.
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S. 27: 27. Every one is justified in using as much force as is reasonably necessary (a) to prevent the commission of an offence (i) for which, if it were committed, the person who committed it might be arrested without warrant, and (ii) that would be likely to cause immediate and serious injury to the person or property of anyone; or (b) to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a).
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R v Szczerbankwicz: The accused, a Lieutenant Colonel in the Canadian military, had an argument with his wife. The wife took the mounted diploma which the accused had earned for his Master’s degree off the wall and threw it on the floor. The accused then pushed her and she fell backwards onto the staircase, bruising her back, legs and elbow. The next day, she learned that her finger was broken. The accused was charged with assault causing bodily harm. The accused and wife testified, and the military judge accepted the wife’s testimony that she fell as a result of being pushed or shoved by the accused. The accused conceded that he intentionally applied force to his wife without her consent, but argued that under s. 39(1) of the Criminal Code the assaultive behaviour was justified because he was protecting his personal property, namely, the diploma.
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The military judge found that the accused used more force than was necessary in defence of his personal property and, therefore, that the s. 39(1) defence could not serve to justify his actions.
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The SCC affirmed this conclusion and upheld the conviction.
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Other Defenses: Section 43 (corrective force by parents to a child) and Section 45 (surgical exemption).
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