FACTS: Appellant gave birth at home, and shortly thereafter strangled the baby and threw the corpse into a neighbour’s yard. Two experts testified that her mind was disturbed at the time.
PROCEDURAL HISTORY: Convicted on murder 2, appeal allowed with new trial which was moved to a more urban location, convicted again of murder 2.
ISSUES: Does the appellant’s disturbed mental state preclude conviction for murder 2 instead of infanticide?
DECISION: Appeal allowed.
REASONS: The Crown does not have to disclose reasons for refusing to elect for a judge-only trial absent abuse of process. Two experts testified that her mind was disturbed, and this finding was uncontradicted. The experts were competent to make this determination. It was unreasonable for a jury to reject the evidence in that light, and the only way that they could have done so is through an error in their analysis or their charge. Infanticide is a partial defence to murder, and the Crown must prove that it does not apply in the circumstances beyond a reasonable doubt, not merely on the balance of probabilities. It is impossible on the facts for there not to have been a reasonable doubt about infanticide.
RATIO: Where the facts support a conviction for either murder or infanticide, infanticide is the appropriate conviction.
DISSENT/CONCUR: Martin J.A. - While infanticide is a delicate topic, Parliament has created a separate offence for it that recognizes the lesser moral blameworthiness of a mother with a disturbed mind. The prosecution in this case made it impossible for this to be recognized by overloading the jury with emotionally-laden evidence (over 50 photos). Prosecutors should not short-circuit the jury’s ability to adjudicate dispassionately or make it more difficult for them to reasonably evaluate the possible outcomes of the trial.
ASSAULT
Assault is governed by s. 265 of the Code, with the predicate offences following. As instances of penal negligence fault elements, predicate offenses are assessed objectively (and require objective foresight or recklessness regarding a risk of bodily harm for the victim) in order of increasing severity:
265 – simple assault; punishment in 266 – hybrid offence, 5 years imprisonment for indictable, 6 mo imprisonment for summary
267 – assault causing bodily harm (harm that is not merely transient or trifling) or assault with a weapon; hybrid offence
268 – aggravated assault (wounding, maiming, disfiguring, endangering the life of the complainant); indictable offence
The basic assault provisions extend to sexual assaults as well unless otherwise specified by statute or common law.
Assault is a mens rea offence – requires knowledge or recklessness. The mental and physical elements must intersect.
Actus reus: intentionally touching another person without their consent. Both the touching and the lack of consent have to be proven beyond a reasonable doubt.
Mens rea: intentionally touching a person knowing that they are not consenting. (Accidental touching is insufficient.)
If mistake of fact has an air of reality (“I thought they were consenting”) and raises a reasonable doubt then there’s no offence (265.4 – credibility test, raised at trial by trier of law).
Consent functions both for actus reus (whether they had actually consented in fact) and mens rea (belief that consent was given). The two issues are distinct, though they are commonly confused. Consent can be vitiated by statute or in common law:
Application of force to the complainant or a third party
Threats or fear of the application of force to complainant or a third party
Fraud
The exercise of authority
Female genital mutilation (268.4)
Where bodily harm is caused in the course of some practice without social utility
Showing by words or conduct that they don’t consent
Where the complainant changed their mind about something they had previously consented to
R v Jobidon [1991] 2 SCR 714 (Gonthier J.)
FACTS: Jobidon and the deceased were drunk at a bar, and got into a fight. After it was broken up in the bar, they resumed fighting outside. Jobidon struck the deceased, knocking him out with the initial punch, and then struck him numerous times afterward. The deceased was in a coma before death.
ISSUES: Did the deceased’s consent to a fight negate liability for assault, and thus manslaughter?
DECISION: Appeal dismissed, 7-2 majority.
REASONS: Assault is a foundational offence, and negating liability for assault negates liability for predicate offences. Parliament has defined what is criminal for the purpose of assault (Frey v Fedoruk)– all crimes must be defined in the Code (other than the common-law offence of contempt). Consent to assaultive conduct can be vitiated under the Code, but the Code is not exhaustive. The Code presents general principles of responsibility, but the courts apply them to particular circumstances; Parliament has not enumerated all of the specific conditions under which consent is to be vitiated. The Code draws on the common law, and in the absence of an explicit intent to extinguish the existing common law on the issue (mostly as it refers to defences, since there is only one common law offence today), the courts can refer to it to give substance to the Code. Consent is part of the actus reus of assault, but it’s often treated as a defence so the courts can apply existing common-law jurisprudence on consent to assault. While the jurisprudence is divided, the general conclusion is that you cannot consent to the infliction of bodily injury in a fight. This is supported by policy considerations, like the social disutility of fighting, deterrence, and the sanctity of the human body. [Why should judges get to decide what has social utility?] While the courts are limited in their ability to negate liability for policy reasons, they will in circumstances where adults (or children) consent to the intentional application of force causing bodily harm in a fight. This does not extend to rule-regulated games or other practices with social utility like surgery – there, when you volunteer to participate you accept the possibility of being assaulted (under the Code).
RATIO: You cannot consent to the intentional infliction of bodily harm in a fight to avoid liability for assault. Consent to assault can be vitiated for common-law or policy reasons, within limits.
DISSENT OR CONCUR: Sopinka J. – consent is part of assault’s actus reus, and majority’s treatment of consent changes the nature of the offence. They are basically creating a common-law variant of assault that is not found in the Code. Consent was vitiated on the facts when victim became unconscious.
