FACTS: Late in a hockey game, McSorley struck an opposing player in the head with his stick, concussing him and causing him to collapse and have a seizure, in order to provoke a fight. Earlier in the game, the two had fought, and McSorley lost. McSorley, at the end of the game, was released on to the ice with 20 seconds remaining, where he moved quickly to intercept the opposing player and provoke him.
ISSUES: Is McSorley guilty of assault for his hit? Is it appropriate to use criminal law to punish him for the hit?
DECISION: Accused is guilty.
REASONS: Hockey is governed by three layers of rules - the written rules, an unwritten code of conduct to govern breaches of those rules, and the discretion of referees to enforce them. Hits are part of the game, and slashing the shoulder is a recognized way to provoke a fight. But slashes to the head are not a valid component of the game. The law (Jobidon) recognizes that assaultive conduct can not lead to legal liability in cases where it occurs in the context of a practice that is a social good. The attack in question went beyond what is permitted by any of the layers of rules in hockey. Given the timing of the slash and the opposing player's lack of will to engage in a fight, the slash in question was excessively dangerous. McSorley intended to slash the opposing player, and his claim that he aimed for the player's shoulder (and hit his head accidentally) does not hold up on the facts given their positions. Nor does his claim that he was unaware of the hit to the head hold up, or that he was preparing for a fight (since he was in normal playing position after the hit). Any time a hockey stick is used to strike another player it is being used as a weapon.
RATIO: Consent to assault in the context of a game can be vitiated if the assault goes beyond the rules and customary norms of the game.
R v Dewey 1999 ABCA 5 (Picard J.A.)
FACTS: Appellant injured complainant when he intervened in a bar fight; complainant hit head on jukebox when appellant pushed him away.
PROCEDURAL HISTORY: Convicted of assault causing bodily harm at trial.
ISSUES: Is objective foreseeability of the harm caused required for a conviction of assault causing bodily harm?
DECISION: Appeal dismissed.
REASONS: Objective foreseeability of harm is required to establish a conviction under s. 269 of the Code (unlawfully causing bodily harm – pertains to assault causing bodily harm and aggravated assault). Subjective foresight is unnecessary. But the objective foresight is of bodily harm that is neither trivial nor transitory in general, not the specific harm that resulted. Determining this is a question of law, not of fact.
RATIO: Objective foreseeability of bodily harm is a component of the mens rea for assault causing bodily harm and aggravated assault.
SEXUAL ASSAULT
Sexual assaults are assaults that (objectively) violate the sexual integrity of the victim. Actus reus:
Touching (objective)
Of a sexual nature (objective)
Without the victim’s consent (subjective).
Beyond s. 265 (including fraud), consent in sexual relations is governed by further statutory provisions:
273.1 (abuse of a position of trust, power, or authority, construed broadly with reference to developments in other areas of the law)
150 – 153 (sexual exploitation of minors, disabled persons)
160.3 (bestiality in the presence of a minor)
173.2 (indecent exposure)
This is not an exhaustive list – if the facts call out for it, consent can be vitiated in other ways.
If the accused is claiming a mistaken belief in consent, it has to be a reasonable belief. The accused cannot be wilfully blind to the absence of consent. It must have an air of reality.
S. 273.2 – the defence of belief in consent is not available where the accused did not take reasonable steps in the circumstances known to the accused at the time to ascertain that the complainant was consenting. This seems to be an objective (reasonableness) test.
R v KBV [1993] 2 SCR 857 (Iacobucci J.)
FACTS: Accused grabbed three-year-old son’s genitals, and was charged with sexual assault.
PROCEDURAL HISTORY: Convicted at trial. Upheld on appeal to ONCA, with dissent on whether crime was a sexual assault.
ISSUES: Is grabbing a 3-year-old’s genitals a sexual assault?
DECISION: Appeal dismissed.
REASONS: Sexual assaults are violations of the sexual integrity of the victim. The authorities hold that a sexual assault is distinguished from assault on an objective basis, considering the facts of the case – what was touched, circumstances of assault including threats, and intention of accused. Here, it was open on the facts the find that the assault was a sexual assault.
RATIO: The test for identifying a sexual assault is an objective one, based on the circumstances of the case – would a reasonable person believe the assault to be of a sexual nature? It is not necessary to find that the accused was motivated by sexual gratification to convict for sexual assault, though it is a relevant factor to be considered.
DISSENT OR CONCUR: Sopinka J – the absence of a sexual motivation in this case should be given more importance on the facts, since it changes the character of the assault.
COMMENTS: Remember that sexual assault is still an assault, and the assault provisions apply to sexual assault cases.
R v Audet [1996] 2 SCR 171 (La Forest J.)
FACTS: Respondent taught phys ed, including to 14-year-old complainant. During the summer, respondent ran into complainant at a club where she was drinking, and invited her and her cousins to a cottage. Respondent went to bed, and complainant slept on same bed. The two woke and engaged in oral sex during the night, but stopped after complainant became uncomfortable. Respondent knew that his teaching contract had been renewed.
PROCEDURAL HISTORY: Acquitted at trial. Crown appealed, and trial decision was affirmed by NBCA, 2-1 dissent.
ISSUES: What do the phrases “position of authority/trust” mean in s. 153 of the Code, and what is required to vitiate consent through them?
DECISION: Appeal allowed, and guilty verdict substituted.
REASONS: S. 153 was added to the Code to protect young people from exploitation by people with whom they are in a power-imbalanced relationship. Under s. 153, there can be no consent from a young person given to a person in a position of trust or authority over them, or that they depend on. S. 153 does not require that the accused abuse that relation to obtain consent to sexual activity, only that the relationship exists; consent is irrelevant and there need be no proof of exploitation (since if you had to prove exploitation, s. 153 would be indistinguishable from sexual assault). S. 153 is a blanket prohibition on the consent of young people. The roles that are “position(s) of authority/trust” are not to be enumerated by the courts, since they are fact-specific. It is the nature of the relationship that makes a relationship so (including ages, length of relationship, and nature of power differential), not merely the titles of the participants. Teachers are generally in positions of trust and authority over their students, though this is a rebuttable (evidentiary) presumption.
RATIO: S. 153 negates any consent given from a young person to a person in a position of trust or authority over them, and as such there is no need to prove abuse of that position. Whether a relation is a relation of authority, trust, or dependence is fact-specific.
Major J. dissented – held this created an absolute liability offence. But it only created an evidentiary presumption, not a legal one.
COMMENTS: Remember to keep s. 153 distinct from other assault and sexual assault provisions.
