R. v. Jobidon, [1991] 2 SCR 714

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 it is true that the general rule says all forms of assault are covered by the various clauses of s. 265, it does not attempt to 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.  It does not attempt to define the situations in which consent will or will not be legally effective.  The present Code is silent in this regard.

 

                   The original statutory definition of assault did not define consent, except to indicate the longstanding rule that a fraudulently induced consent is legally ineffective.  That traditional common law rule, and its incorporation in the first statutory definition of assault, is explained by Watt, op. cit., at p. 219, and is examined in greater detail below.  Later statutes also omitted full definitions of consent.  The 1983 amendments defined consent only in part, by negatively indicating a few ways consent could be vitiated.  If Parliament had sought to perform the comprehensive task of indicating what one could and could not consent to, it likely would have offered more guidance.  (It is noteworthy that in its revised and enlarged report on recodification, the Law Reform Commission of Canada has suggested that consent be defined in a definitions section of a new code (Report 31:  Recodifying Criminal Law (1987), at p. 10).)

 

                   Parliament could have specified whether the term "consent" is aimed simply at the kind of activity being purportedly consented to (here a fist fight), or whether it refers to consent to a trivial injury which does not amount to bodily harm (such as might be sustained in sporting activities), or whether for the defence to apply the consent must be as to the precise extent of harm actually caused by the application of force.  At any point in the history of the provision Parliament could have taken the opportunity to specify whether the common law, which already had had much to say about assault and the requirement of consent, was being emptied of relevance.  But it did not do these things.  Nor did it have to.

 

                   Just as the common law has built up a rich jurisprudence around the concepts of agreement in contract law, and volenti non fit injuria in the law of negligence, it has also 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 done this in respect of assault.  In the same way that the common law established principles of public policy negating the legal effectiveness of certain types of contracts -- contracts in restraint of trade for example -- it has also set limits on the types of harmful actions to which one can validly consent, and shelter an assailant from the sanctions of our criminal law.

 

                   There is no indication in s. 265 that the jurisprudence of the criminal common law was to be undermined by its enactment.  There was no hint that traditional policy limits on consent, described below in greater detail, were to be ousted by s. 258 of the first Criminal Code  of 1892, nor by enactment of its successor provision in s. 244 (now s. 265).  This should not be surprising.  As the foregoing sketch of the history of the offence demonstrates, far from intending to curtail the authority of that law, the Code was a partial expression of it.

 

                   All criminal offences in Canada are now defined in the Code (s. 9).  But that does not mean the common law no longer illuminates these definitions nor gives content to the various principles of criminal responsibility those definitions draw from.  As the Law Reform Commission of Canada has noted in its 31st report on recodification, the basic premises of our criminal law -- the necessary conditions for criminal liability -- are at present left to the common law. (Recodifying Criminal Law, at pp. 17, 28 and 34.  Reference may also be made to E. Colvin, Principles of Criminal Law (1986), at pp. 16-17.)  The Code itself, in s. 8, explicitly acknowledges the ongoing common law influence:

 

                   8. . . .

 

                   (2)  The criminal law of England that was in force in a province immediately before April 1, 1955 continues in force in the province except as altered, varied, modified or affected by this Act or any other Act of the Parliament of Canada.

 

                   (3)  Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament.

 

                   Section 8 expressly indicates that the common law rules and principles continue to apply, but only to the extent that they are not inconsistent with the Code or other Act of Parliament and have not been altered by them.  While little judicial analysis of this section of the Code has been undertaken, the references made to it have predominantly concerned exceptional circumstances which provide defences or which deny certain features of an offence.  (See Colvin, op. cit., at pp. 16-17.)  This Court's leading interpretation of s. 8(3) is found in Kirzner v. The Queen, [1978] 2 S.C.R. 487.  Laskin C.J. expressly rejected a static view of the common law under s. 8(3) (formerly s. 7(3)).  Though speaking in the context of alleged prosecutorial impropriety, and a claimed defence of entrapment, Laskin C.J. offered an expansive, developmental view, at p. 496:

 

There are good reasons for leaving the question open [re:  application of an entrapment defence].  Indeed, if that position is based on a static view of s. 7(3) of the Criminal Code I find it unacceptable.  I do not think that s. 7(3) should be regarded as having frozen the power of the Courts to enlarge the content of the common law by way of recognizing new defences . . . .

 

                   The approach of the Chief Justice in Kirzner was later reinforced in Amato v. The Queen, [1982] 2 S.C.R. 418.  Writing in dissent, on behalf of Laskin C.J., McIntyre and Lamer JJ., Estey J. applied what he termed the "ordinary rule of construction where statutes and common law meet" to conclude that "s. 7(3) is the authority for the courts of criminal jurisdiction to adopt, if appropriate in the view of the court, defences including the defence of entrapment" (p. 445).  The Court's majority did not disagree with this determination.  In reasoning to that conclusion, Estey J. made the following comments, at p. 443:

 

The conventional view has been that the common law is always speaking.  Some theories hold that it is a process of discovery, others of evolution.  Whatever it might be properly classified to be in jurisprudence it would take the clearest and most precise language in a statute which purports to incorporate the principles of common law to so construe it as to crystallize the common law at the date of enactment of the statute.  If so, the importation of common law principles would be limited to those which had crystallized and developed prior to the effective date of the statute.  Section 7(3) does not employ such words.  It is at most ambiguous, susceptible either to the static view or to the view that it makes reference to the common law as an evolving, developing system of rules and principles.  Where a statute might be read as displacing the common law the appropriate canon of interpretation is a preference for that construction which preserves the rule of common law where it can be done consistently with the statute.

 

                   Estey J. also referred extensively to s. 19 of the Report of the Imperial Commissioners of the draft Code of 1879, which is the forerunner of the present s. 8(3).  In Amato, supra, at pp. 443-44, they are quoted as explaining  their inclusion of the section in these terms:

 

                   But whilst we exclude from the category of indictable offences any culpable act or omission not provided for by this or some other Act of Parliament, there is another branch of the unwritten law which introduces different considerations; namely, the principles which declare what circumstances amount to a justification or excuse for doing that which would be otherwise a crime, or at least would alter the quality of the crime.  In the cases of ordinary occurrence, the decisions of the Courts and the opinions of great lawyers enable us to say how the principles of the law are to be applied.

 

                   In light of this communicated understanding of the antecedents and purpose of s. 8(3), it can hardly be said that the common law's developed approach to the role and scope of consent as a defence to assault has no place in our criminal law.  If s. 8(3) and its interaction with the common law can be used to develop entirely new defences not inconsistent with the Code, it surely authorizes the courts to look to preexisting common law rules and principles to give meaning to, and explain the outlines and boundaries of an existing defence or justification, indicating where they will not be recognized as legally effective -- provided of course that there is no clear language in the Code which indicates that the Code has displaced the common law.  That sort of language cannot be found in the Code.  As such, the common law legitimately serves in this appeal as an archive in which one may locate situations or forms of conduct to which the law will not allow a person to consent.

 

                   Of course this general analysis does not answer all of the appellant's arguments to the contrary.  Responding to them requires a more directed focus on the specific conjunction of the Code and common law in the fist fight type of situation.

 

                   (b)The Specific Relationship Between the Code and the Common Law of Assault in Cases of Fist Fights

 

                   (i)  The Relationship Between Consent and Section 265(3)

 

                   The appellant argued that the 1983 amendments to s. 265 reflected Parliament's intent to replace any common law doctrines that might have negated the legal effectiveness of consent to an act which would otherwise constitute assault.  In particular, reference was made to s. 265(3), which sets out four factors that may vitiate consent:  application of force, threats of force, fraud, or the exercise of authority.  It was argued that because Parliament explicitly specified these factors, any others, even though they may have applied prior to 1983, could no longer be drawn from the common law.  Since the trial judge found that Haggart had consented to the fight and did not hold that such consent was invalidated on any of the four grounds, it should be effective, and should serve as a defence to assault as the plain words of ss. 265(1) and 265(2) appear to require.

 

                   While at first glance the appellant's argument may seem cogent, it is ultimately unpersuasive.  Parliament did not set foot into new territory when listing the four vitiating factors in s. 265(3).  On the contrary it will be seen that, for the most part, that list merely concretized, and made more explicit, basic limits on the legal effectiveness of consent which had for centuries formed part of the criminal law in England and in Canada.  Their expression in the Code did not reflect an intent to remove the existing body of common law which already described those limitations and their respective scope.  The Code just spelled them out more clearly, in a general form.

 

                   That common law is rich and extensive, with roots reaching back well into the decades preceding Canada's adoption of the Code of 1892.  For instance it provided that, as a general rule, consent would only be valid or legally effective if it was given freely by a rational and sober person.  (See Russell on Crime, op. cit., at p. 678.)

 

                   Thus in R. v. March (1844), 1 Car. & K. 496, 174 E.R. 909, the English criminal court, speaking through Lord Tindal C.J., held that a fraudulently obtained consent to common assault was no consent at all (p. 911).  The parallel in our Code is in s. 265(3)(c).  In R. v. Lock (1872), L.R. 2 C.C.R. 10, an English criminal court held that eight-year-old boys were too young to understand the nature of a sexual act with a grown man to be able to consent to it.  Submission by a young child to an older, stronger person, an authority figure, would not be considered consensual.  The consent would in all probability have been obtained under a coerced and ill-informed will.  This principle now finds expression in Canada in s. 265(3)(d).

 

                   As for consent in the context of fist fights, the English common law displayed a similar penchant for limiting its role as an exculpatory defence.  However it is vital to note that the basis of the concern was different than in the case of fraud, threats, or forced "consents".  The early cases often did not explicitly acknowledge that different basis, but hints of it may be identified.  It was a concern that the offence of assault -- more particularly the element of consent -- be informed by considerations of public policy.  Such considerations were thought sufficiently important to justify nullifying the legal validity of consent as a defence to a charge of assault.

 

                   For instance, in Wright's Case (1603), Co. Litt. f. 127 a-b, the English criminal court held that, not only would a man be punished at law for procuring another to sever his hand -- to assist his career as a mendicant -- but the person effecting the task would also be liable to criminal sanction, irrespective of the other's consent.  In Matthew v. Ollerton (1693), Comb. 218, 90 E.R. 438, it was held that a man may not license another to beat him as that act amounted to a breach of the peace.  This principle was repeated in Boulter v. Clarke (1747),  Bull. N.P. 16, where it was determined that it is no defence to a charge of assault that the two persons fought by mutual consent.  Coleridge J. reaffirmed the doctrine in R. v. Lewis (1844), 1 Car. & K. 419, 174 E.R. 874, a case involving a fight between two men outside a dance hall, which had resulted in the death of a man from blows sustained to his head.  Coleridge  J. stated, at p. 875:  "it ought to be known, that, whenever two persons go out to strike each other, and do so, each is guilty of an assault".

 

                   It will be seen that this nullification of the defence of consent in fist fight cases in England has continued forward uninterruptedly to the present day.  In Canada the same principle was applied for many decades before the appropriateness of such invalidation was ever brought into question.  Indeed it was for reasons of public policy that the Court of Appeal nullified Haggart's consent.

 

                   We have observed from the general analysis of the Code and common law that, in the history of our criminal law, codification did not replace common law principles of criminal responsibility, but in fact reflected them.  That history also reveals that policy-based limitations of the sort at issue here boast a lineage in the common law equally as long as the factors which vitiate involuntary consent.  Since these policy-based limitations also existed before the codification of Canada's criminal law there is no reason to think they have been ousted by statutory revisions and amendments made to the Code along the way.

 

                   On this understanding, even if it could be concluded, contrary to my own view of the law, 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.  If Parliament had so intended, it would have stated that intention.  As it is, the Code as amended in 1983 is entirely silent in this regard.

 

                   This view accords with the interpretation of the Law Reform Commission of Canada.  In its working paper on assault it notes that, regardless of the wording of s. 265(3), not all consents will be accepted as being legally effective.  Irrespective of a finding of real or implied consent, in some cases (resembling the situation in the instant appeal) "the victim's consent or non-consent is quite irrelevant."  (It cites as one example at p. 6 the situation where the application of force is intended to cause death or serious bodily harm, and another when a blow is struck in the course of an illegal fight.)  That irrelevance is the result of policy considerations which in some circumstances nullify the legal effectiveness of consent.

 

                   Furthermore, since s. 8(3) of the Code expressly confirms the common law's continued authority and provides that exculpatory defences not expressly struck down by the Code continue to operate to exclude criminal liability, in this appeal, where the Code has not erased the common law limit in fist fights, it must continue to define the scope of legally effective consent.  Some may object that s. 8(3) cannot be used to support this interpretation because consent is not really a defence, but instead forms part of the offence; indeed it is the absence of consent that is relevant as an element of the offence of assault.  For example, Mewett and Manning, op. cit., at p. 567,  write that "Real consent is therefore an essential element of assault going to the actus reus in the sense that if consent is present no offence can have been committed".  Yet while that objection may have some relevance from a strictly formalistic perspective, it is of little consequence from a substantive point of view.  Moreover it conflicts with the spirit of this Court's previously expressed understanding of s. 8(3).

 

                   Whether consent is formally categorized as part of the actus reus of the offence, or as a defence, its essential function remains unaltered -- if consent is proved, or if absence of consent is not proved, an individual accused of assault will generally be able to rely on the consent of the complainant to bar a conviction.  He will be able to lean on the consent as a defence to liability.  This basic reality has been widely recognized.  English and Canadian courts widely refer to consent as being in the nature of a defence.  Leading treatises on criminal law conceive it this way.  See Watt, op. cit., at p. 216; Clarkson and Keating, op. cit., at pp. 283-92; G. Williams, Textbook of Criminal Law (2nd ed. 1983), at pp. 549 and 576-78; and Law Reform Commission of Canada, Working Paper 38, Assault, op. cit., at p. 24.  We have also observed, in the general interpretative section above, that the law confers on s. 8(3) an open and developmental view of the common law's role.  Section 8(3) strongly suggests preservation of the common law approach to consent in assault.

 

                   Assault has been given a very encompassing definition in s. 265.  It arises whenever a person intentionally applies force to a person "directly or indirectly", without the other's consent.  The definition says nothing about the degree of harm which must be sustained.  Nor does it refer to the motives for the touching.  If taken at face value, this formulation would mean that the most trivial intended touching would constitute assault.  As just one of many possible examples, a father would assault his daughter if he attempted to place a scarf around her neck to protect her from the cold but she did not consent to that touching, thinking the scarf ugly or undesirable.  (Even an argument for implied consent would not seem to apply in a case like this.)  That absurd consequence could not have been intended by Parliament.  Rather its intention must have been for the courts to explain the content of the offence, incrementally and over the course of time.

 

                   Furthermore, whereas the factors specified in s. 265(3) are readily identifiable, and are generally applicable to all sorts of situations, that is inherently not true of limitations based on policy considerations, which are fact-specific by nature.  It would have been quite impractical, if not impossible, for Parliament to establish an adequate list of exceptions to apply to all situations, old and new.  Policy-based limits are almost always the product of a balancing of individual autonomy (the freedom to choose to have force intentionally applied to oneself) and some larger societal interest.  That balancing may be better performed in the light of actual situations, rather than in the abstract, as Parliament would be compelled to do.

 

                   With the offence of assault, that kind of balancing is a function the courts are well-suited to perform.  They will continue to be faced with real situations in which complicated actions and motivations interact, as they have in the past.  I do not accept the argument that by failing to enact a list of objects or forms of conduct to which one could not validly consent, Parliament intended to eliminate their role in the offence of assault and to rely only on the four factors specified in s. 265(3).  Such a major departure from well-established policy calls for more than mere silence, particularly as such a list would have been unduly difficult and impractical to prescribe, and was unnecessary given their existing entrenchment in the common law.  The common law is the register of the balancing function of the courts -- a register Parliament has authorized the courts to administer in respect of policy-based limits on the role and scope of consent in s. 265 of the Code.

 

                   (ii)  The Relationship Between Consent and Section 265(2)

 

                   The appellant argues that the interpretation favouring limits on consent being advanced here would render s. 265(1)(a) ("without the consent of another") otiose and meaningless, in so far as s. 265(2) specifies that s. 265(1)(a) is to apply to all forms of assault, including assault causing bodily harm.  However, this objection is not sustainable.

 

                   By specifying in s. 265(2) that s. 265 is to apply to all forms of assault, Parliament undoubtedly 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.  That is plain.  Yet it does not follow from that expression that Parliament intended to eliminate the common law prescription of objects or forms of conduct to which legally effective consent may not be given.  Section 265 was deliberately left open in that regard, for the above reasons.

 

                   (iii)  Consent and Section 14 of the Code

 

                   Section 14 nullifies consent to the infliction of death in a broad and open-textured fashion.  It provides:

 

                   14.  No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given.

 

                   A final argument made by the appellant is that by enacting s. 14 of the Code, Parliament reflected its intention to negate consent solely in situations where death was intended to be caused.  With other situations, and with forms of conduct like the fist fight between Jobidon and Haggart where that consequence was not intended, consent should be given full legal effect.  In other words, the appellant suggested a version of the interpretative principle expressed by the maxim expressio unius est exclusio alterius.  But this argument also fails.

 

                   Section 14 is an absolute exclusion of consent to death in all circumstances.  It follows neither from logic nor from the structure of the Code that absent death, consent to any or all forms of bodily injury is permissible, regardless of the circumstances.  The section speaks only of consent to the infliction of death.  It does not comment on consent to other consequences, any more than it comments on sexual offences or any other form of assault.  It stands on its own.

 

                   (c)  Common Law Limits in Fist Fights and Brawls

 

                   Limits on consent to assault have long been recognized by English and Canadian courts.  We have already seen the earliest antecedents of them in the English jurisprudence, in fist fights and otherwise; here we are concerned only with the former situation.  In present times as well, the English courts have on the whole been very consistent when confronted by assaults arising from fist fights and brawls.  Since the English cases have set the overall direction for the Canadian common law in the assault context, and apparently continues to do so, it is of particular relevance in the circumstances of this case.  The Canadian authorities also favour limits on consent.  However, in recent years there has evolved a mixed record across provincial courts of appeal.  This appeal therefore presents a timely opportunity for clarification.

 

                   (i)  The English Authorities

 

                   We have seen that the readiness of the common law to constrain the role and the effectiveness of consent in cases of assault may be identified as far back as 1603 and that it runs well into the 19th century.  But that willingness did not suddenly cease in the late 1800s.

 

                   The springboard for the modern authorities was a decision of the English Court of Queen's Bench in R. v. Coney (1882), 8 Q.B.D. 534.  Eleven judges held that a prize fight was illegal and that all persons aiding and abetting the fight were guilty of assault.  For public policy reasons, differently expressed by various members of the court, consent of the fighters was held to be ineffective.  The essence of the court's justification was that consensual fist fights tend to encourage public disturbances and breaches of the peace and should not be condoned by the criminal law.  The view was expressed by Stephen J., at p. 549, that:

 

When one person is indicted for inflicting personal injury upon another, the consent of the person who sustains the injury is no defence to the person who inflicts the injury, if the injury is of such a nature, or is inflicted under such circumstances, that its infliction is injurious to the public as well as to the person injured.

 

                   The English Court of Criminal Appeal had an opportunity to build on Coney in R. v. Donovan, [1934] All E.R. 207.  The accused had beaten a 17‑year‑old girl with a cane but denied he was guilty of indecent and common assault on the ground that the girl had consented to the beating.  At certain points in its judgment the court seems to determine the issue on a factual basis, namely that the victim did not actually consent, nonetheless it chose to pronounce its decision in these terms, as per Swift J., at p. 210:

 

As a general rule, although it is a rule to which there are well-established exceptions, it is an unlawful act to beat another person with such a degree of violence that the infliction of bodily harm is a probable consequence, and, when such an act is proved, consent is immaterial.

 

                   Finally, in 1980, the English Court of Appeal was asked to state the law in Attorney General's Reference, supra.  It was a reference prompted by a street fight between two young men who, in a relatively calm fashion, had decided to settle differences between them by resorting to their fists.  One suffered a bleeding nose and some bruises.  The other was charged with assault, but acquitted.  The question put to the appellate court was, at p. 1058:

 

                   Where two persons fight (otherwise than in the course of sport) in a public place can it be a defence for one of those persons to a charge of assault arising out of the fight that the other consented to fight?

 

                   The court held that because it is not in the public interest that people should cause each other bodily harm for no good reason, consent is no answer to a charge of assault when "actual bodily harm is intended and/or caused" (p. 1059).  This meant that most fights would be unlawful regardless of consent.  Only minor struggles, or rough but properly conducted sporting events -- which may have some positive social value -- were combative activities where consent would be an effective bar to a charge of assault.  Of course lawful chastisement and reasonable surgical interference were also activities in which the public interest does not require nullification of consent.  In such cases the general rule applies:  the Crown must prove absence of consent to get a conviction for assault.  The English Court of Appeal added that the public nature of the forum in which the fight occurs is not determinative of the effectiveness of consent.  Private fights deserved no more protection than public ones.

 

                   If determinative of this appeal, the English authorities would undoubtedly support the decision of the court below.  Here the assault occurred in circumstances which appear very nearly to have amounted to a disturbance of the peace.  And there is no question that the punches thrown by Jobidon were intentional applications of force intended to cause the deceased bodily harm.  Rodney Haggart's apparent consent would provide no defence to Jobidon in England.

 

                   (ii) The Canadian authorities

 

                   We have seen that the statutory definition of assault has always contained a general requirement that the Crown prove absence of consent, and has made reference to some circumstances in which consent would be considered involuntary.  But this Court has not previously confronted the precise issue on appeal.  Provincial appellate courts on the other hand have dealt with numerous cases of purportedly consensual beatings or fights giving rise to charges of assault (and sometimes manslaughter) though the overwhelming bulk of these have surfaced in recent times.  Prior to the 1970s, only one reported decision squarely addressed the issue:  R. v. Buchanan (1898), 1 C.C.C. 442 (Man. C.A.), decided a few years after the offence was incorporated in the Code of 1892.

 

                   Sitting in appeal, the Manitoba Court of Queen's Bench accepted the principle stated in Coney that consent to assault should be ineffectual in the context of fist fights where bodily harm is intended.  The court held that a blow landed in a fist fight amounted to assault regardless of consent, citing at pp. 446-47 the following passage from Coney, supra, per Cave J.:

 

The true view is . . . that a blow struck in anger, or which is likely or is intended to do corporal hurt, is an assault, but that a blow struck in sport, and not likely, nor intended to cause bodily harm, is not an assault, and that, an assault being a breach of the peace and unlawful, the consent of the person struck is immaterial.

 

                   The Coney principle was reconfirmed, en passant, by the Ontario Court of Appeal in Bradley v. Coleman (1925), 28 O.W.N. 261, at p. 262, a fist fight case, and in obiter dicta in R. v. Cullen (1948), 93 C.C.C. 1, at p. 9, aff'd [1949] S.C.R. 658, which dealt with unilateral aggression in a rape.  But the issue was not again squarely addressed as it had been in Buchanan until the 1970s, when the earlier view became seriously disturbed.  Provincial courts of appeal began rendering statements which appeared directly to contradict Buchanan and the English approach in Coney and Donovan.  Indeed the first appeals either ignored the English jurisprudence completely, or discounted its applicability to the Canadian statutory assault provisions.  As for Buchanan, it was entirely absent from the courts' deliberations.

 

                   In 1972, the Appeal Division of the New Brunswick Supreme Court rendered its decision in R. v. MacTavish (1972), 8 C.C.C. (2d) 206, a case in which two boys got in a schoolyard fight that ended when one boy sustained a broken nose from kicks landed by the other.  The court simply assumed that consent was an operative defence to a charge of assault under (then) s. 244 of the Code -- the onus being on the Crown to prove absence of consent beyond a reasonable doubt.  However, in strict terms that view was obiter because, on the facts, while the injured boy had consented to a "fair fight", he had not consented to having his "head kicked in".  He had not agreed to having that kind of force inflicted on him, nor had he agreed to that particular form of activity.  The court upheld the conviction on that basis, not on the ground that the defence of consent must in all situations be legally effective.

 

                   Ontario's appellate court joined New Brunswick's approach in R. v. Dix, supra.  The court faced a situation partly similar to the one here.  A scuffle occurred in a beverage room.  The two men went outside the premises to fight, with the consequence that the complainant was severely injured.  The trial judge convicted the accused of assault causing bodily harm.

 

                   The Court of Appeal stated its legal opinion in unequivocal terms, at p. 325:

 

                   There is no doubt that the Crown proved that the accused intentionally applied force to his victim, and thereby caused bodily harm to him, but the intentional application of force does not amount to an assault unless the force was applied without the victim's consent.  The Judge found that there was consent, in the sense that the two persons involved agreed to fight.  The onus then was on the Crown, as it seems to us, to satisfy the Judge that what the appellant did was beyond the scope of the consent that had been given.

 

                   The appellate court overturned the conviction on the ground stated by Gale C.J.O., at pp. 325-26, that:  "the Crown failed to prove the necessary element of lack of consent to that which was done.  The two parties consented to a fight and the fight was had in a normal manner, if I might use that phrase."

 

                   R. v. Abraham (1974), 30 C.C.C. (2d) 332, 26 C.R.N.S. 390 (Que. C.A.), was next in the growing series of decisions in which (then) s. 244 was read to require the Crown to prove absence of consent, this time to a charge of common assault of a man's wife -- through punches and kicks to her head and by pulling her hair on a public street.  The Quebec Court of Appeal held that the accused had been wrongly precluded from raising consent as a defence to the charge at his trial, notwithstanding that the assault may have constituted a breach of the peace, as per Gagnon J.A., at p. 334 C.C.C.:

 

                   [translation] Section 244  of the Criminal Code  makes the absence of the victim's consent an essential ingredient of the crime of assault and this ingredient must be established by the prosecution beyond all reasonable doubt.  It appears to me that because of this statutory particular, the English case law on this point must be accepted with caution. . . . Finally, I do not believe that the accused is precluded from pleading consent by the fact that an assault may constitute a breach of the peace.

 

Having registered this view, the court proceeded to uphold the conviction on the ground that even though the accused should have been permitted to raise the issue, the facts could not support a finding of consent.  As in MacTavish, supra, in strict terms, the court's statements about the applicability of the defence of consent were obiter dicta.

 

                   A fourth province added its voice to this developing chorus in R. v. Setrum (1976), 32 C.C.C. (2d) 109.  The Saskatchewan Court of Appeal confronted a situation in which a fight had erupted between two men outside the residence in which they had been drinking.  As in the case at bar, the fight ended in the death of one of them.  The trial judge had relied on Coney and Donovan to hold that a fight by consenting parties was unlawful assault per se, regardless of consent.  The Saskatchewan Court of Appeal directly rejected the interpretation after a close examination of the terms of s. 244 of the Code and after reviewing and agreeing with the author of Tremeear's Annotated Criminal Code (6th ed. 1964), who, following an exposition of the English cases, concluded:

 

                   It is, however, very doubtful in view of the wording of the Code, whether there can in any circumstances be an assault where the person assaulted has consented, unless that consent has been obtained by fraud.

 

                   Finally, drawing on Dix and Abraham, the court had this to say, at p. 114:

 

                   The language defining assault makes it absolutely clear that the proof of lack of consent to the assault is an essential element which must be proved if a conviction is to be found. . . .  The instruction that a fight by consent, per se, was an unlawful act, was wrong in law.

 

With this interpretation in hand, the Saskatchewan Court allowed Setrum's appeal of the conviction for manslaughter, and ordered a new trial.  Setrum was followed by Creaghan J. of the New Brunswick Court of Queen's Bench in R. v. Crouse (1982), 39 N.B.R. (2d) 1.

 

                   If the preceding line of authority were singularly determinative of the common law binding this Court, there should be little question about the result called for here.  Given the finding of consent by the trial judge, Jobidon would not have committed the offence of assault.  But the path is by no means as straight and clear as these cases seem to indicate.  Since Setrum, certain decisions have in varying degrees pulled away from that bright-line, absolutist approach which more or less ignores the traditional view of consent in fist fight cases.  The respondent relies on some of these more recent decisions when claiming that the MacTavish - Dix - Abraham - Setrum line should not be followed.

 

                   While some of the most recent decisions are consistent with that chain of cases, others take due note of the established common law policy to insist that fist fights are special situations which call for some limits on the effectiveness of the element of consent in s. 265.  There are of course shades of opinion as to the most appropriate place to draw protective lines in different situations.

 

                   Although dealing with homicide and the defence of provocation, the Ontario Court of Appeal in R. v. Squire (1975), 26 C.C.C. (2d) 219 (rev'd on other grounds, [1977] 2 S.C.R. 13), found occasion to rely on both Coney and Donovan (omitting reference to R. v. Dix, supra) to conclude that the mere fact of consent between two persons to administer blows to one another did not of itself make such blows lawful, as per Martin J.A., at p. 230:

 

                   Where two persons engage in a fight in anger by mutual consent the blows struck by each constitute an assault on the other, unless justifiable in self-defence in accordance with the provisions of the Code. . . .

 

                   The Supreme Court of the Northwest Territories staked out the same interpretative ground in R. v. Kusyj (1983), 51 A.R. 243; also in obiter dicta.  In a case dealing with the s. 244 offence of causing bodily harm with intent to wound (formerly s. 228), the judge held that a man who had intentionally applied force to another while trying to break up a fight was guilty of the included offence of assault causing bodily harm.  Marshall J. found occasion to stress, at p. 247, that it was the policy of the law that one cannot validly consent to a touching that is "intended to truly injure".  He noted that the law has long discouraged this brand of "self-help" and should instead deter violence and breaches of the peace.  (Contra R. v. Jerome, [1990] 1 W.W.R. 277 (N.W.T.S.C.).)

 

                   The Nova Scotia Court of Appeal supported these views in R. v. Gur (1986), 27 C.C.C. (3d) 511.  There the accused and the victim had been armed with knives and fought with them in the victim's house.  The complainant sustained serious cuts to his hands.  Inter alia, the accused was charged with unlawfully using a weapon in committing an assault contrary to (then) s. 245.1 of the Code.  The accused invoked the consent of the victim as his primary defence.  After stating that the Code had not negated the applicability of the common law in the assault context, and relying on the trio of English cases, the court distinguished MacTavish, Dix, Abraham and Setrum on the basis that they dealt with assault charges arising out of fist fights, not the use of dangerous weapons.  In coming to its conclusion that the trial judge had erred in instructing the jury that consent was a defence to the charge, and relying heavily on the Attorney General's Reference, supra, the Nova Scotia Court stated its interpretation of the law in direct and open-ended terms, per Jones J.A., at p. 518:

 

                   As it is an offence to commit an assault where bodily harm is intended or caused then consent cannot be a defence to using a weapon for the purpose of committing an assault. . . .  I cannot agree that a person can consent to the infliction of bodily harm that results in death.  [Emphasis added.]

 

                   This approach was more broadly applied by the Nova Scotia Supreme Court, Appeal Division in R. v. McIntosh (1991), 64 C.C.C. (3d) 294.  The sole issue in that appeal was whether a participant in a fist fight can give a legally effective consent to the intentional infliction of bodily harm upon himself.  After reviewing the relevant jurisprudence, the unanimous court, speaking through Macdonald J.A., concluded that because it was not in the public interest that people should try to cause each other actual bodily harm for no good reason, most fights would be unlawful regardless of consent.

 

                   In fairly quick succession, the Alberta Court of Appeal was thrice required to grapple with this issue, first in R. v. Carriere (1987), 56 C.R. (3d) 257, then in R. v. Bergner (1987), 36 C.C.C. (3d) 25, and most recently in R. v. Loonskin (1990), 103 A.R. 193.

 

                   In R. v. Carriere, two women engaged in a fist fight in the lobby of a hotel.  Stopped briefly, and moved outdoors, the fight was renewed in a parking lot, this time with knives.  The victim sustained a stab wound in her abdomen.  The accused was charged and convicted of aggravated assault contrary to (then) s. 245.2 of the Code.  The Court of Appeal upheld that conviction.  In delivering the judgment of the court, Laycraft C.J.A. stated unequivocally that the English cases demonstrated a definite rule that a victim's consent provides no defence "where the assault maimed the victim".  He noted that Professor Williams, op. cit., at p. 585, has suggested that in modern times the rationale of the rule may be that the victim will likely become a public charge, contrary to the public interest.

 

                   With lesser forms of bodily harm, Laycraft C.J.A. conceded that Canadian authorities reflect a considerable diversity of opinion.  So, although he acknowledged that "fists are not insignificant weapons" and that fist fights often end in serious injury or death, he restricted his holding to the narrower issue before the court, concluding, at p. 269:

 

                   I have, however, no doubt of the answer which the law must reach in a fight with knives where the charge is under one of the assault sections.  One cannot consent to be stabbed.  The public policy of the law intervenes to nullify the apparent consent of each of the combatants.

 

Before completing his judgment, Laycraft C.J.A. commented, in passing, that some cases dealt with under the assault sections of the Criminal Code  might be better handled by charges of criminal negligence.

 

                   In R. v. Bergner, heard later the same year, the court was given the chance to decide the issue of fist fights on which it had refrained from commenting in Carriere.  The accused, Bergner, had been charged with assault causing bodily harm, arising from a fight initiated in a hotel bar and continued outside on the street.  Bergner hit the inebriated complainant repeatedly in the stomach and face with his fist, and then kicked the complainant's face and ribs with his boots.  The complainant suffered a fractured nose and cheek-bone, as well as damage to an optic nerve which left him blind in one eye.

 

                   The trial judge held that it was a consensual fist fight and on that basis acquitted Bergner of assault causing bodily harm.  Laycraft C.J.A. again noted that in Canada cases of consensual fist fights show considerable variation in both result and rationale.  Due to that indeterminacy, Laycraft C.J.A. thought himself obliged to allow policy considerations to decide the issue.  In the end, he determined that consent to fist fights should not be nullified on the basis of the tests of "blow[s] struck in anger" (Buchanan, Squire) and where "actual bodily harm is intended and/or caused" (Attorney General's Reference), even when intentional bodily harm was caused.  In his opinion, the extent of such nullification would be overly encompassing  -- it would invalidate too many consents, in numerous activities, at p. 31:

 

If anger, or the intention to do corporal hurt or to truly injure or to cause actual bodily harm is to trigger the intervention of public policy and so nullify consent, it is difficult to imagine the case in which there would be no such intervention.  School boys in disagreement, with or without boxing-gloves, intend and strive mightily to injury or cause bodily harm; they are certainly angry.  Even professional boxers fighting for money may not be able to resist the onset of a certain choler.  The contestants in fights in hockey or football also meet all the criteria.  The friendly fight is a rare phenomenon.

 

. . . the expressed tests do not, in my respectful opinion, focus on one of the elements which should even more quickly induce the public policy of the law to nullify consent [the fact that in most fist fights challengers are often large, trained bullies, and the genuine consent of the other person is dubious at best].

 

                   Having rejected these tests for fist fight cases, Laycraft C.J.A. stated that once consent to a fist fight is truly established, it will preclude conviction for assault.  Unlike fights with weapons, it would be too difficult, and bordering on judicial usurpation of political authority, to formulate a code of tests for nullifying the consent of weaponless fighters based on anger or intent to cause bodily harm.  Thus, even though it disagreed with the trial judge's factual finding of consent, the Court of Appeal regretfully dismissed the Crown's appeal.  Provincial appellate courts have thrice been asked to interpret the role of consent in assault-based offences after Bergner.

 

                   In R. v. Loonskin, supra, the Alberta Court of Appeal followed the approach it established in Bergner.  It held that, while the Crown was required by s. 265 to prove absence of consent to ground a conviction of aggravated assault, on the facts of the case before it where one of the combatants in a fist fight had bitten off part of the other's ear, consent had in fact not been given.  Any consent to a fight, in general, was exceeded by the extent and force of the accused's harmful conduct.

 

                   The court took the opportunity to emphasize that while a legal defence of consent exists, nevertheless truly consensual fights would be very rare:  "[w]here . . . one person attacks and another defends, and even in many cases where a challenge is met by a defence, it is not realistic to speak of a consensual fight" (p. 194).  In overturning the acquittal, the Court of Appeal distinguished Bergner on the ground that in Bergner it was easier to find as a matter of fact that the combatants had consented to fight, because they deliberately moved from one place to another with the express intention of settling their differences by combat; not so in Loonskin where the fight had erupted rather spontaneously and without agreement that bites would be involved.

 

                   Having not faced this issue of consent since its decision in Setrum, supra, the Saskatchewan Court of Appeal returned to it in R. v. Cey (1989), 48 C.C.C. (3d) 480, apparently with a very different mind set.  Cey involved a charge of assault causing severe bodily harm under s. 245.1 of the Code for injuries sustained in a hockey game when the accused stick-checked the complainant in the neck and face.  The complainant suffered injuries to his head and was found to have sustained a concussion and a whiplash, keeping him hospitalized for three days.  The trial judge found that the accused had not intended to injure the complainant, nor had he intended to apply any greater force to the victim than was customary in the game.  Since the complainant had continued to play the game after he received the injuries, the trial judge held that that willingness amounted to an implied consent to the bodily contact which had occurred, and used that finding as a basis for acquitting the accused.  The Crown appealed on the partial ground that the trial judge had misdirected himself on the issue of consent.

 

                   Without referring to Setrum, the majority in Cey came to its conclusion by relying on Attorney General's Reference, supra, and on the Ontario Court of Appeal's decision in the case at bar; both cases having been decided subsequent to its earlier decision in Setrum.  To that extent, the reasoning in Cey is as much at stake in this appeal as that of the Ontario Court of Appeal below.  The Saskatchewan Court of Appeal held that, although consent to the application of force may be implied, and may thereby constitute a valid and effective consent, nonetheless its effective scope is limited, not only by circumstance, but also by the law, at pp. 492-93:

 

                   The trial judge, if he found either express or implied consent, was in my view required to consider whether the nature of the act was such that the victim could in law consent to it.  I am in agreement with the analysis of the term "assault" and the limits for a victim to consent thereof in the decision of the Ontario Court of Appeal in R. v. Jobidon. . . .

 

                   While the Jobidon case dealt with a consensual fight outside a bar and while the English reference case referred to activity outside of sport, I see no reason in principle why the consent, express or implied, to assault in the context of a sporting event should not be considered similarly.  That is in sporting events as well the mere fact that a type of assault occurs with some frequency does not necessarily mean that it is not of such a severe nature that consent thereto is precluded.  In a sport such as hockey, however, I believe the test may be more limited than in the Attorney-General's Reference case -- that is, I think the alternate reference to "caused" to be inappropriate where actions to which there is implied consent may in extraordinary circumstances cause harm.  [Emphasis added.]

 

Since the trial judge had not directed himself to the nature of the act impliedly consented to, the acquittal was set aside.

 

(d)  Summary of the Common Law

 

                   (i)  The English Position

 

                   Attorney General's Reference makes it clear that a conviction of assault will not be barred if "bodily harm is intended and/or caused".  Since this test is framed in the alternative, consent could be nullified even in situations where the assailant did not intend to cause the injured person bodily harm but did so inadvertently.  In Canada, however, this very broad formulation cannot strictly apply, since the definition of assault in s. 265 is explicitly restricted to intentional application of force.  Any test in our law which incorporated the English perspective would of necessity have to confine itself to bodily harm intended and caused.

 

                   (ii)  The Canadian Position

 

                   The preceding analysis reveals division in the Canadian jurisprudence.  Decisions by courts of appeal in Manitoba, Ontario, Nova Scotia and (lately) Saskatchewan would nullify consent to intentionally inflicted bodily harm arising from a fist fight.  Their approach is contained, respectively, in Buchanan (1898), Cullen (1948), Squire (1975), Jobidon (1988), Gur (1986), McIntosh (1991), and Cey (1989).  (There is of course general support for the idea of policy-based nullification in the Alberta Court of Appeal; witness the language of Laycraft C.J.A. in R. v. Carriere, supra.)

 

                   On the other side are decisions of appellate courts in New Brunswick (MacTavish (1972)), Quebec (Abraham (1974)), Saskatchewan (Setrum (1976)), and Alberta (Bergner (1987) and Loonskin (1990)).

 

                   Although there is certainly no crystal-clear position in the modern Canadian common law, still, when one takes into account the combined English and Canadian jurisprudence, when one keeps sight of the common law's centuries-old 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 rather heavily against the validity of a person's consent to the infliction of bodily injury in a fight.

 

                   The thrust of the English common law is particularly important in this regard because it has been consistent for many decades, indeed, centuries.  It became an integral component of the Canadian common law and has remained so to this day.  Many of the seemingly pivotal pro-consent decisions made by courts in the 1970s were either obiter or were pronounced upon insufficient consideration of the important role of the traditional common law.  Moreover they were decided prior to the decision in Attorney General's Reference (1981), which offered a very authoritative pronouncement of the common law position.  The significance of that decision is perhaps best indicated in the instant appeal, for it provided the basis used by the Ontario Court of Appeal to overrule its decision in R. v. Dix, supra.  The Attorney General's Reference case was again observed to be pivotal in the recent decision of the Appeal Court in Saskatchewan, in R. v. Cey.  In light of these many considerations, I am of the view that the Canadian position is not as opaque or bifurcated as one might initially think.

 

                   Notwithstanding this conclusion, given the residual indeterminacy which admittedly lingers in the recent Canadian cases, it is useful to canvass policy considerations which exert a strong influence in this appeal, for they rather decisively support the respondent, bringing down the scales even more surely in support of the decision in the court below.

 

                   (e)  Policy Considerations

 

                   Foremost among the policy considerations supporting the Crown is the social uselessness of fist fights.  As the English Court of Appeal noted in the Attorney General's Reference, it is not in the public interest that adults should willingly cause harm to one another without a good reason.  There is precious little utility in fist fights or street brawls.  These events are motivated by unchecked passion.  They so often result in serious injury to the participants.  Here it resulted in a tragic death to a young man on his wedding day.

 

                   There was a time when pugilism was sheltered by the notion of "chivalry".  Duelling was an activity not only condoned, but required by honour.  Those days are fortunately long past.  Our social norms no longer correlate strength of character with prowess at fisticuffs.  Indeed when we pride ourselves for making positive ethical and social strides, it tends to be on the basis of our developing reason.  This is particularly true of the law, where reason is cast in a privileged light.  Erasing longstanding limits on consent to assault would be a regressive step, one which would retard the advance of civilised norms of conduct.

 

                   Quite apart from the valueless nature of fist fights from the combatants' perspective, it should also be recognized that consensual fights may sometimes lead to larger brawls and to serious breaches of the public peace.  In the instant case, this tendency was openly observable.  At the prospect of a fight between Jobidon and the deceased, in a truly macabre fashion many patrons of the hotel deliberately moved to the parking lot to witness the gruesome event.  That scene easily could have erupted in more widespread aggression between allies of the respective combatants.  Indeed it happened that the brothers of Jobidon and Haggart also took to each other with their fists.

 

                   Given the spontaneous, often drunken nature of many fist fights, I would not wish to push a deterrence rationale too far.  Nonetheless, it seems reasonable to think that, in some cases, common law limitations on consent might serve some degree of deterrence to these sorts of activities.

 

                   Related to a deterrence rationale is the possibility that, by permitting a person to consent to force inflicted by the hand of another, in rare cases the latter may find he derives some form of pleasure from the activity, especially if he is doing so on a regular basis.  It is perhaps not inconceivable that this kind of perversion could arise in a domestic or marital setting where one or more of the family members are of frail or unstable mental health.  As one criminal law theorist has written:

 

. . . the self-destructive individual who induces another person to kill or to mutilate him implicates the latter in the violation of a significant social taboo.  The person carrying out the killing or the mutilation crosses the threshold into a realm of conduct that, the second time, might be more easily carried out.  And the second time, it might not be particularly significant whether the victim consents or not.  Similarly, if someone is encouraged to inflict a sado-masochistic beating on a consenting victim, the experience of inflicting the beating might loosen the actor's inhibitions against sadism in general.

 

(G. Fletcher, Rethinking Criminal Law (1978), at pp. 770-71.)

 

                   Of course this appeal does not concern sadism or intentional killing.  But it comes close to mutilation.  In any event, the weight of the argument could hold true for fights.  If aggressive individuals are legally permitted to get into consensual fist fights, and they take advantage of that license from time to time, it may come to pass that they eventually lose all understanding that that activity is the subject of a powerful social taboo.  They may too readily find their fists raised against a person whose consent they forgot to ascertain with full certitude.  It is preferable that these sorts of omissions be strongly discouraged.

 

                   Wholly apart from deterrence, it is most unseemly from a moral point of view that the law would countenance, much less provide a backhanded sanction to the sort of interaction displayed by the facts of this appeal.  The sanctity of the human body should militate against the validity of consent to bodily harm inflicted in a fight.

 

                   Some would say the offence of assault should not be concerned with these considerations.  They might argue that in respect of street fights, deterrence and express disapprobation of the law is already contained in other provisions of the Criminal Code .  For instance, Parliament has seen fit to prohibit "prize-fighting", on penalty of criminal sanction, in s. 83.

 

                   However, while it is true that s. 83 prohibits prize-fighting, it is unlikely that section would apply to the situation giving rise to this appeal, nor to the wide range of cases which arise in like fashion.  The definition of prize-fighting is:

 

                   83.  . . .

 

                   (2)  . . .  an encounter or fight with fists or hands between two persons who have met for that purpose by previous arrangement made by or for them, but a boxing contest between amateur sportsmen . . . shall be deemed not to be a prize fight.  [Emphasis added.]

 

                   Since it is a condition of this offence that the fight be arranged previously, it is questionable whether the facts of this case would warrant a conviction on that basis.  Although the trial judge found that the parties agreed to continue their fight outside the hotel, nonetheless it was essentially a spontaneous, ad hoc event.  (In any event, this issue has not been raised in this appeal.)

 

                   The policy preference that people not be able to consent to intentionally inflicted harms is heard not only in the register of our common law.  The Criminal Code  also contains many examples of this propensity.  As noted above, s. 14 of the Code vitiates the legal effectiveness of a person's consent to have death inflicted on him under any circumstances.  The same policy appears to underlie ss. 150.1, 159 and 286 in respect of younger people, in the contexts of sexual offences, anal intercourse, and abduction, respectively.  All this is to say that the notion of policy-based limits on the effectiveness of consent to some level of inflicted harms is not foreign.  Parliament as well as the courts have been mindful of the need for such limits.  Autonomy is not the only value which our law seeks to protect.

 

                   Some may see limiting the freedom of an adult to consent to applications of force in a fist fight as unduly paternalistic; a violation of individual self‑rule.  Yet while that view may commend itself to some, those persons cannot reasonably claim that the law does not know such limitations.  All criminal law is "paternalistic" to some degree -- top-down guidance is inherent in any prohibitive rule.  That the common law has developed a strong resistance to recognizing the validity of consent to intentional applications of force in fist fights and brawls is merely one instance of the criminal law's concern that Canadian citizens treat each other humanely and with respect.

 

                   Finally, it must not be thought that by giving the green light to the common law, and a red light to consent to fights, this Court is thereby negating the role of consent in all situations or activities in which people willingly expose themselves to intentionally applied force.  No such sweeping conclusion is entailed.  The determination being made is much narrower in scope.

 

                   (f)  Conclusion

 

How, and to what extent is consent limited?

 

                   The law's willingness to vitiate consent on policy grounds is significantly limited.  Common law cases restrict the extent to which consent may be nullified; as do the relevant policy considerations.  The unique situation under examination in this case, a weaponless fist fight between two adults, provides another important boundary.

 

                   The limitation demanded by s. 265 as it applies to the circumstances of this appeal is one which 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 test entails that a minor's apparent consent to an adult's intentional application of force in a fight would also be negated.)  This is the extent of the limit which the common law requires in the factual circumstances of this appeal.  It may be that further limitations will be found to apply in other circumstances.  But such limits, if any, are better developed on a case by case basis, so that the unique features of the situation may exert a rational influence on the extent of the limit and on the justification for it.

 

                   Stated in this way, the policy of the common law will not affect the validity or effectiveness of freely given consent to participate in rough sporting activities, so long as the intentional applications of force to which one consents are within the customary norms and rules of the game.  Unlike fist fights, sporting activities and games usually have a significant social value; they are worthwhile.  In this regard the holding of the Saskatchewan Court of Appeal in R. v. Cey, supra, is apposite.

 

                   The court's majority determined that some forms of intentionally applied force will clearly fall within the scope of the rules of the game, and will therefore readily ground a finding of implied consent, to which effect should be given.  On the other hand, very violent forms of force which clearly extend beyond the ordinary norms of conduct will not be recognized as legitimate conduct to which one can validly consent.

 

                   There is also nothing in the preceding formulation which would prevent a person from consenting to medical treatment or appropriate surgical interventions.  Nor, for example, would it necessarily nullify consent between stuntmen who agree in advance to perform risky sparring or daredevil activities in the creation of a socially valuable cultural product.  A charge of assault would be barred if the Crown failed to prove absence of consent in these situations, in so far as the activities have a positive social value and the intent of the actors is to produce a social benefit for the good of the people involved, and often for a wider group of people as well.  This is a far cry from the situation presented in this appeal, where Jobidon's sole objective was to strike the deceased as hard as he physically could, until his opponent either gave up or retreated.  Fist fights are worlds apart from these other forms of conduct.

 

                   Finally, the preceding formulation avoids nullification of consent to intentional applications of force which cause only minor hurt or trivial bodily harm.  The bodily harm contemplated by the test is essentially equivalent to that contemplated by the definition found in s. 267(2) of the Code, dealing with the offence of assault causing bodily harm.  The section defines bodily harm as "any hurt or injury to the complainant that interferes with the health or comfort of the complainant and that is more than merely transient or trifling in nature".

 

                   On this definition, combined with the fact that the test is restricted to cases involving adults, the phenomenon of the "ordinary" schoolyard scuffle, where boys or girls immaturely seek to resolve differences with their hands, will not come within the scope of the limitation.  That has never been the policy of the law and I do not intend to disrupt the status quo.  However, I would leave open the question as to whether boys or girls under the age of 18 who truly intend to harm one another, and ultimately cause more than trivial bodily harm, would be afforded the protection of a defence of consent.  (As was the accused in R. v. Barron (1985), 23 C.C.C. (3d) 544 (Ont. C.A.), in which a boy was charged with manslaughter, via assault, for pushing another boy down a flight of stairs thereby causing the boy's death.  The trial judge held that the deceased boy had impliedly consented to rough-housing on the stairs as they descended.)  The appropriate result will undoubtedly depend on the peculiar circumstances of each case.

 

                   It is now possible to move away from the issue of consent.  But before summarizing the result of this appeal, it may be instructive briefly to address the possibility that criminal negligence could serve as an alternative unlawful act on which the charge of manslaughter could be grounded.

 

4.  Alternative Grounds for Conviction of Manslaughter

 

                   (a)  Comparing Assault and Criminal Negligence

 

                   Since the trial judge found that the appellant was not criminally negligent, the point was not addressed in the court below, and the appellant has not raised the issue of criminal negligence on appeal, it is not strictly necessary to analyze criminal negligence in this appeal.  Nevertheless it may be instructive to do so, to provide a more comprehensive understanding of the offence of assault, and to gain an adequate appreciation of the comparative operations of assault and criminal negligence.  In R. v. Carriere, supra, Chief Justice Laycraft of the Alberta Court of Appeal suggested that in some fist fight or street fight cases, even if weapons are involved, criminal negligence causing death or bodily injury respectively under ss. 203 or 204 (now ss. 220 and 221) may be the more appropriate charges, since criminal negligence is behaviour which shows "wanton or reckless disregard for the safety of other persons" (p. 269).  In the opinion of Laycraft C.J.A., a charge under those sections would focus on what he called the "real issue" in such cases, not whether there was consent, but whether the person who applied the force knew of the likelihood of risk to the life or safety of another person and proceeded with his action regardless of that risk.

 

                   While that reasoning might commend itself in obviating the sometimes unavoidably difficult task of assessing whether consent was given, and of determining precisely what was consented to -- the form of activity and the sorts of consequences -- on balance I am of the view that in the context now before the Court, in the fist fight or street fight situation, those tasks will remain largely unavoidable.

 

                   The prototypical fist fight constitutes a situation in which the concept and term "assault" fit quite naturally.  Criminal negligence is less well tailored to the situation.  In a fist fight two people line themselves up.  They face one another and begin striking.  There is typically an obvious intention to apply force to the other person.  There is a consciousness that if one lands a hard blow to the other person, he or she will suffer some degree of pain or discomfort, at the very least.  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.  With assault there is a turning of the mind toward the complainant.  With criminal negligence there is in a sense a turning of the mind away from the complainant.

 

                   It may be that the foregoing reasoning has little merit in the context of injury caused by athletes in a rough sporting activity.  For instance, it is easy to imagine a hockey player causing great harm to an opposing player by checking him hard, but in a way that would still be legitimately within the rules, save that in the quickness of the game he negligently failed to lower his stick just before making the check, thereby injuring the other through carelessness.  Once again, however, I think it best that these sorts of presumptions be developed gradually over time, in cases where the facts more naturally allow for it.

 

                   (b)Other "Unlawful Acts" Which Might Ground a Conviction for Manslaughter

 

                   The Crown argued that if assault is barred by consent, Jobidon should be convicted of manslaughter on the alternative basis that he performed the unlawful act of causing a public disturbance.  However, as this issue was not directly raised on appeal, it will not be addressed.

 

III -- Disposition

 

                   I would uphold the decision of the Court of Appeal.  The appeal is dismissed.

 

//Sopinka J.//

 

                   The reasons of Sopinka and Stevenson JJ. were delivered by

 

                   Sopinka J. -- I have had the advantage of reading the reasons of Gonthier J. and while I agree with his disposition of the matter I am unable to agree with his reasons.  This appeal involves the role that consent plays in the offence of criminal assault.  Unlike my colleague I am of the view that consent cannot be read out of the offence.  I come to this conclusion for two reasons:  (1) consent is a fundamental element of many criminal offences, including assault, and (2) the statutory provision creating the offence of assault explicitly provides for the element of consent.

 

Facts

 

                   The facts of this case are substantially as put forward by Gonthier J. in his reasons.  For the purposes of my reasons I wish to highlight a few crucial facts.

 

                   The altercation which led to the unfortunate death of Rodney Haggart was a result of a consensual fist fight.  The trial judge found that the fight commenced after mutual invitations to fight between Haggart and the accused.  The accused was found to have honestly and reasonably believed that Haggart had consented to a "fair" fist fight.  The judge also found that Haggart was rendered unconscious as a result of the first blow from the accused but that the accused continued to strike Haggart four to six times while he was unconscious.

 

1. General Principles of the Criminal Law

 

                   While the consent of the victim cannot transform a crime into lawful conduct, it is a vital element in determining what conduct constitutes a crime.  It is a well-accepted principle of the criminal law that the absence of consent is an essential ingredient of the actus reus.  Thus it is not theft to steal if the owner consents and consensual intercourse is not sexual assault.  In D. Stuart, Canadian Criminal Law:  A Treatise (2nd ed. 1987), the author states (at p. 469):

 

The general principle, to which there are exceptions, that the true consent of the victim is always a defence to criminal responsibility is a fundamental principle of the criminal law.

 

He later adds at p. 472 that:

 

                   It is disappointing that our courts have based the rejection only on statutory construction.  Lack of consent is a fundamental principle.  Donovan [the English line of authority] should have been rejected even if lack of consent had not been expressed in our definition of assault.

 

In Lemieux v. The Queen, [1967] S.C.R. 492, this Court held that the offence of breaking and entering was not made out when it was carried out by pre-arrangement with the agent of the owner.  The consent of the owner deprived the activity of an essential feature of the actus reus.  Lack of consent as part of the actus reus 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.  Although there is no consent, an honest belief that there was consent may constitute a defence.  See Pappajohn v. The Queen, [1980] 2 S.C.R. 120.

 

                   There is moreover no generally accepted exception to this principle with respect to the intentional infliction of physical harm.  There are many activities in society which involve the intentional application of force which may result in serious bodily harm but which are not criminal.  Surgical operations and sporting events are examples.  It was no doubt the absence of an exception to this principle that lead Parliament to enact s. 14  of the Criminal Code , R.S.C., 1985, c. C-46 , which creates an exception for the most serious of assaults, the intentional infliction of death.

 

                   In my view Parliament has chosen to extend this principle to all assaults save murder in the interests of making this aspect of the criminal law certain.  I see no evidence in the clear and simple language of s. 265 that it intended to outlaw consensual fighting in the interests of avoiding breaches of the peace or to allow it if a judge thought that it occurred in circumstances that were socially useful.  Rather, the policy reflected in s. 265 is to make the absence of consent a requirement in the definition of the offence but to restrict consent to those intentional applications of force in respect of which there is a clear and effective consent by a victim who is free of coercion or misrepresentation.  Instead of reading the words "without the consent of another person" out of s. 265 I am of the opinion that the intention of Parliament is respected by close scrutiny of the scope of consent to an assault.  Instead of attempting to evaluate the utility of the activity the trial judge will scrutinize the consent to determine whether it applied to the very activity which is the subject of the charge.  The more serious the assault the more difficult it should be to establish consent.

 

2. Interpretation of Section 265

 

                   Section 265 states that "[a] person commits an assault when without the consent of another person, he applies force intentionally to that other person. . . ." (emphasis added).  My colleague Gonthier J. concludes that on the basis of cases which applied the common law, that section should be interpreted as excluding the absence of consent as an element of the actus reus in respect of an assault with intent to commit intentional bodily harm.  In coming to his conclusion my colleague relies on a number of English authorities.  The issue was not finally resolved in England until the decision of the English Court of Appeal on a reference to it by the Attorney General in 1980.  See Attorney General's Reference (No. 6 of 1980), [1981] 2 All E.R. 1057.  Unconstrained by the expression of legislative policy, the court moulded the common law to accord with the court's view of what was in the public interest.  On this basis the court discarded the absence of consent as an element in assaults in which actual bodily harm was either caused or intended.  Exceptions were created for assaults that have some positive social value such as sporting events.  In Canada, the criminal law has been codified and the judiciary  is constrained by the wording of sections defining criminal offences.  The courts' application of public policy is governed by the expression of public policy in the Criminal Code .  If Parliament intended to adopt the public policy which the English Court of Appeal developed it used singularly inappropriate language.  It made the absence of consent a specific requirement and provided that this applied to all assaults without exception.  The conflict in the Canadian cases which my colleague's review discloses is largely due to the application of these two disparate strains of public policy.

 

                   In my opinion the above observations as to the appropriate use of public policy are sufficient to conclude that the absence of consent cannot be swept away by a robust application of judge-made policy.  This proposition is strengthened and confirmed by the specific dictates of the Code with reference to the essential elements of a criminal offence.  Section 9(a) of the Code provides that "[n]otwithstanding anything in this Act or any other Act, no person shall be convicted . . . (a) of an offence at common law".  The effect of my colleague's approach is to create an offence where one does not exist under the terms of the Code by application of the  common law.  The offence created is the intentional application of force with the consent of the victim.  I appreciate that my colleague's approach is to interpret the section in light of the common law but, in my view, 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 not only the spirit but also the letter of s. 9(a).  One of the basic reasons for s. 9(a) is the importance of certainty in determining what conduct constitutes a criminal offence.  That is the reason we have codified the offences in the Criminal Code .  An accused should not have to search the books to discover the common law in order to determine if the offence charged is indeed an offence at law.  Where does one search to determine the social utility of a fight during a hockey game to take one example?  There are those that would argue that it is an important part of the attraction.  Judges may not agree.  Is this a matter for judicial notice or does it require evidence?  The problem of uncertainty which the social utility test creates is greater than searching out the common law, a problem which lead to the prohibition in s. 9(a).

 

Application to this Appeal

 

                   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 consent given by Haggart did not extend to a continuation of the fight once he had lost consciousness.  By striking Haggart once he was unconscious, the accused acted beyond the scope of the consent of Haggart and thus committed the actus reus of assault.

 

                   Although satisfying the actus reus, did the accused have the requisite state of mind?  I now turn to the issue of honest belief in consent.

 

                   The accused believed that the victim, Haggart, was consenting to a fair fight.  In his own evidence the accused stated that the object of the fight was to prevent injury to himself.  The trial judge indicated:

 

                   I accept the evidence of the accused that he did not mean to kill Mr. Haggart or cause him serious bodily harm.  He believed that Haggart consented to a fair fight.  It was a fight in anger, and no friendly sparring contest or test of strength.  The object of the fight was to hit the other man as hard as physically possible until he gave up or retreated.  Physical injury was intended and contemplated.  [Emphasis added.]

 

((1987), 36 C.C.C. (3d) 340, at p. 349.)

 

It appears clear from the findings of the trial judge that the accused had an honest belief in consent but that consent extended only until Haggart "gave up or retreated".  The extent of the consent given by Haggart did not, therefore, extend to being struck once he had been knocked unconscious.  The accused knew that Haggart's consent did not extend beyond consciousness.

 

                   In my opinion, based on his own findings the trial judge misconstrued the evidence with respect to the accused's belief that all the blows were struck prior to Haggart losing consciousness.  The following passage in the evidence of the accused shows that he knew that Haggart was unconscious after the second punch:

 

Q.               What happened next?

 

A.                It dazed him a fair amount and he was still struggling and he was swinging at me.  He was cocking back.  He couldn't cock back because his back was on the car and his elbow would only go to his side, and he swung and I swung again, and I hit him and he was out after the second punch.

 

Q.               Where did the second punch land?

 

A.                In the same spot in the cheek or the cheek or the jaw.

 

Q.               You are telling us about two punches outside?

 

A.                That is correct.

 

Q.Were there any others?

 

A.                No, there was not.

 

                   In his reasons the trial judge found that the accused struck Haggart four to six times after Haggart was unconscious (p. 348).  The trial judge, therefore, did not accept the testimony of the accused that he struck Haggart only twice and one is left with the admission of the accused that he realized Haggart was unconscious after the second punch.  By continuing to pummel Haggart after the accused realized Haggart was unconscious, the accused acted, to his knowledge, beyond the ambit of Haggart's consent thereby committing an assault.

 

                   Having found that the accused committed an assault, and given that Mr. Haggart died as a result of that unlawful act, the accused is therefore guilty of manslaughter via Criminal Code  ss. 222(5) (a) and 234 .  I would therefore dispose of the appeal as proposed by Gonthier J.

 

                   Appeal dismissed.

 

                   Solicitors for the appellant: Greenspan, Humphrey, Toronto.

 

                   Solicitor for the respondent: The Ministry of the Attorney General, Toronto.