(Last revised May 2019)
If there is an issue of consensual fighting, the judge must consider the effect of R. v. Jobidon, [1991] 2 S.C.R. 714. See below, instruction 267-C. This instruction would be appropriate before the third question below relating to consent, and the remaining instructions would require appropriate modification.
(Read applicable parts of indictment or count.)
1. that (NOA) applied force to (NOC);
2. that (NOA) intentionally applied the force;
3. that (NOC) did not consent to the force that (NOA) applied;
4. that (NOA) knew that (NOC) did not consent to the force that (NOA) applied; and
5. that (NOA) caused bodily harm to (NOC).
Unless you are satisfied beyond a reasonable doubt that the Crown has proved all these essential elements, you must find (NOA) not guilty of assault causing bodily harm.
If you are satisfied beyond a reasonable doubt of each of these essential elements (and you have no reasonable doubt after considering the defence(s) (specify defences) about which I will instruct you)[2] , you must find (NOA) guilty of assault causing bodily harm.
Force includes any physical contact with another person, even a gentle touch. The contact may be direct, for example, touching a person with a hand or other part of the body, or indirect, for example, touching a person with an object. So, whenever I refer to the application of force, I mean any physical contact.
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOA) applied force to (NOC), you must find (NOA) not guilty. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) applied force to (NOC), you must go on to the next question.
The physical contact must be intentional, as opposed to accidental. To decide whether (NOA) applied force intentionally, you will have to consider all the evidence, including anything said or done in the circumstances.
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOA) intentionally applied force to (NOC), you must find (NOA) not guilty. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) intentionally applied force to (NOC), you must go on to the next question.
To decide whether (NOC) consented to the physical contact, you must consider (NOC)’s state of mind.
Consider all the evidence, including the circumstances surrounding (NOA)’s physical contact with (NOC), to decide whether (NOC) consented to it. Take into account any words or gestures, whether by (NOA) or (NOC), and any other indication of (NOC)’s state of mind at the time.
Just because (NOC) submitted or did not resist does not mean that (NOC) consented to what (NOA) did. Consent requires (NOC)’s voluntary agreement, without the influence of force, threats, fear, fraud or abuse of authority[3], to let the physical contact occur.
Where there is evidence that the scope of the consent may have been exceeded, give the following instruction:[4]
When a person consents to physical contact, that consent covers only a certain amount of force. It does not cover force that goes beyond what (NOC) consented to.
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOC) did not consent to the force that (NOA) applied, you must find (NOA) not guilty. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOC) did not consent to the application of force that (NOA) applied, you must go on to the next question.
The Crown must prove beyond a reasonable doubt that (NOA) was aware that (NOC) did not consent to the physical contact in question.
To prove that (NOA) was aware of (NOC)’s lack of consent, the Crown must prove any one of the following:
1. that (NOA) actually knew that (NOC) did not consent;
2. that (NOA) knew there was a risk that (NOC) did not consent and that (NOA) proceeded in the face of that risk;
3. that (NOA) was aware of indications that (NOC) did not consent, but deliberately chose to ignore them because (NOA) did not want to know the truth.
Any one of these would be sufficient to establish (NOA)’s awareness of (NOC)’s lack of consent. You do not all have to agree on the same one. If each of you is satisfied about any one of them beyond a reasonable doubt, the Crown will have proved the essential element of knowledge.
If the person charged advances a defence of honest but mistaken belief in consent, add this instruction:
(NOA)’s position is that s/he was unaware that (NOC) did not consent. In fact, it is his/her position that s/he honestly believed that (NOC) consented to the physical contact in question.
A belief is a state of mind, in this case, (NOA)’s state of mind. To determine whether (NOA) honestly believed that (NOC) consented to the physical contact in question, you should consider all the circumstances surrounding that activity. Take into account any words or gestures, whether by (NOA) or (NOC), and any other indication of (NOA)’s state of mind at the time.
(NOA)’s belief that (NOC) consented to the physical contact must be an honest belief, but it does not have to be reasonable. However, you must consider whether there were reasonable grounds for (NOA)’s belief; the presence or absence of reasonable grounds may help you decide whether (NOA)’s belief was honest.
Look at all the circumstances in deciding this issue. Do not focus on only one and ignore the rest. You must consider all the evidence, including anything said or done in the circumstances. Use common sense.
(NOA) does not have to prove that s/he honestly believed that (NOC) consented to the physical contact. Rather, the Crown must prove beyond a reasonable doubt that (NOA) had no such belief.
(Review relevant evidence and relate to issue.)
In all cases:
Unless you are satisfied beyond a reasonable doubt that (NOA) knew that (NOC) did not consent (or, that (NOA) did not honestly believe that (NOC) consented)[5] to the physical contact in question, you must find (NOA) not guilty. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) knew that (NOC) did not consent (or that (NOA) did not honestly believe that (NOC) consented)[6] to the physical contact in question, you must find (NOA) guilty of assault. You must also consider the next question.
“Bodily harm” is any hurt or injury that interferes with a person’s health, comfort or psychological well-being. The harm must be something that is more than brief, fleeting or minor in nature. It must result from or be due to the physical contact that (NOA) made with (NOC). If you find that (NOC) suffered bodily harm, ask yourselves whether (NOA)’s conduct contributed significantly[7] to the bodily harm done to (NOC). The Crown does not have to prove that (NOA) meant to cause bodily harm of this or any other kind to (NOC) by the force that s/he applied.
In British Columbia and Manitoba, this instruction is sufficient. The following additional instruction may be required in Ontario and Alberta:[8]
What the Crown has to prove, however, is that any reasonable person in the circumstances would realize that the force (NOA) applied would put (NOC) at risk of suffering some kind of bodily harm, although not necessarily serious bodily harm or the precise kind of harm that (NOC) suffered here.
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond that (NOA) caused bodily harm to (NOC), you must find (NOA) not guilty of assault causing bodily harm, but guilty of assault.
If you are satisfied beyond a reasonable doubt that (NOA) caused bodily harm to (NOC), you must find (NOA) guilty of assault causing bodily harm.
[1] Where identity is an issue, remember to include any further instructions that may be relevant (e.g., eyewitness identification, alibi, similar fact, etc.). Where date is an issue, the jury must be told that the Crown must prove that the offence occurred within the time frame indicated in the indictment. Where place is an issue, the jury must be told that the Crown must prove that some part of the offence occurred in the place indicated in the indictment.
Generally, the Crown must prove the date and place specified in the indictment. However, where there is a variation between the evidence and the indictment, refer to s. 601(4.1) of the Criminal Code and the jurisprudence following R. v. B. (G.), [1990] 2 S.C.R. 3.
[2] Insert the bracketed words if appropriate. This instruction will have to be modified where the accused has a legal burden of proof, such as for mental disorder or non-insane automatism.
[3] If these issues arise on the evidence, it will be necessary to identify them and to review the relevant evidence. Note, however, that the ways in which consent can be vitiated are not limited, although some are identified expressly in Criminal Code, ss. 265(3) and 273.1.
Further, the forms of incapacity to consent are not limited. For example, incapacity might arise from intoxication by alcohol or other drugs or from mental disability. Whenever this issue arises on the evidence, an appropriate instruction will have to be given. Some guidance may be derived from R. v. M.A.P., [2004] N.S.J. no. 55 (C.A.), 2004 NSCA 27; and R. v. Siddiqui, 2004 BCSC 1717.
[4] Where the charge arises from a sporting activity, an instruction should be added along the lines that consent is valid as long as the intentional application of force to which one consents is within the customary norms and rules of the game. See R. v. Jobidon, [1991] 2 S.C.R. 714, 766-67.
[5] Insert bracketed words if the jury has been instructed on mistaken belief in consent.
[6] Insert bracketed words if the jury has been instructed on mistaken belief in consent.
[7] Following R. v. Nette, [2001] 3 S.C.R. 488, it would appear that this formulation of the general test of causation is not reversible. It expresses the central element of the test in R. v. Smithers, [1978] 1 S.C.R. 506, which stipulated that a cause should be “not insignificant.” The two formulations are equivalent. Thus Nette is regarded as affirming the standard in Smithers, but providing a positive alternative for expressing it. This interpretation is reinforced by the Court’s decision in R. v. Maybin, 2012 SCC 24, in which it confirmed that the correct test is found in Smithers and Nette. Note also that the Court stated:
Further, this Court emphasized that causation issues are case-specific and fact-driven. The choice of terminology to put to a jury is discretionary in the context of the circumstances of the case (Nette, at para. 72). Implicit in Nette then, is the recognition that different approaches may be helpful in assessing legal causation, depending upon the specific factual context (at para. 17).
[8] The alternative is based on R. v. A.E., [2000] O.J. No. 2984 (C.A.) and R. v. Dewey (1999), 132 C.C.C. (3d) 348 (Alta. C.A.). The main instruction, which does not require proof of objective foresight of bodily harm, is based on R. v. Brooks, [1988] B.C.J. No. 394 (C.A.) and R. v. Vandergraaf, [1994] M.J. No. 503 (C.A.).