Consent to Physical Contact: Difference between revisions
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; Consent to Harm | ; Consent to Harm | ||
The ability to consent to some form of assault ends once the culprit intends and causes bodily harm.<REf> | The ability to consent to some form of assault ends once the culprit intends and causes bodily harm.<REf> | ||
Jobidon<Br> | {{CanLIIRP|Jobidon|1fskj|1991 CanLII 77 (SCC)|[1991] 2 SCR 714, 66 CCC (3d) 454}}{{vlex|680881617}}{{perSCC|Gonthier J}}<Br> | ||
{{UKCase|Attorney General’s Reference (No. 6 of 1980)|, [1981] 2 All E.R. 1057 (CA)}} | {{UKCase|Attorney General’s Reference (No. 6 of 1980)|, [1981] 2 All E.R. 1057 (CA)}} | ||
</ref> | </ref> | ||
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Section 265(3)(d) requires that there be a “coercive use of authority to overcome resistance to a consent”<ref> | Section 265(3)(d) requires that there be a “coercive use of authority to overcome resistance to a consent”<ref> | ||
{{CanLIIR|Lutoslawski|28pdv|2010 ONCA 207 (CanLII)}}{{perONCA|Doherty JA}} | {{CanLIIR|Lutoslawski|28pdv|2010 ONCA 207 (CanLII)|258 CCC (3d) 1}}{{perONCA|Doherty JA}} | ||
</ref> | </ref> | ||
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==Implied Consent== | ==Implied Consent== | ||
The doctrine of implied consent is based on the public policy interest to not over-criminalize certain actions. It must be "strictly limited to conduct which is consistent with the purpose and rationale underlying the policy basis".<ref> | The doctrine of implied consent is based on the public policy interest to not over-criminalize certain actions. It must be "strictly limited to conduct which is consistent with the purpose and rationale underlying the policy basis".<ref> | ||
{{CanLIIR|AE|1fb9p|2000 CanLII 16823 (ONCA)| | {{CanLIIR|AE|1fb9p|2000 CanLII 16823 (ONCA)|146 CCC (3d) 449}}{{perONCA|Weiler JA}}{{atL|1fb9p|33}}<br> | ||
</ref> | </ref> | ||
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==Consensual Fight== | ==Consensual Fight== | ||
A consensual fight is not an assault as the parties are consenting to the physical contact. <ref> | A consensual fight is not an assault as the parties are consenting to the physical contact. <ref> | ||
{{CanLIIRP|Jobidon|1fskj|1991 CanLII 77 (SCC)|[1991] 2 SCR 714}}{{perSCC|Gonthier J}} | {{CanLIIRP|Jobidon|1fskj|1991 CanLII 77 (SCC)|[1991] 2 SCR 714, 66 CCC (3d) 454}}{{perSCC|Gonthier J}} | ||
</ref> | </ref> | ||
Consent can be negated or vitiated where the force causes bodily harm ''and'' was intended to be caused.<ref> | Consent can be negated or vitiated where the force causes bodily harm ''and'' was intended to be caused.<ref> | ||
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==Consent in Sports== | ==Consent in Sports== | ||
While normally a person cannot consent to an assault that intends to cause bodily harm, there is an exception to this for sports where the conduct is part of the norms of the particular sport.<ref> | While normally a person cannot consent to an assault that intends to cause bodily harm, there is an exception to this for sports where the conduct is part of the norms of the particular sport.<ref> | ||
{{ | {{CanLIIRP|Jobidon|1fskj|1991 CanLII 77 (SCC)|[1991] 2 SCR 714, 66 CCC (3d) 454}}{{perSCC|Gonthier J}}</ref> | ||
Thus sports players may consent to some bodily harm necessarily incidental to the sport. However, conduct that is deliberately for the purpose of inflicting injury will not be protected.<ref> | Thus sports players may consent to some bodily harm necessarily incidental to the sport. However, conduct that is deliberately for the purpose of inflicting injury will not be protected.<ref> | ||
{{CanLIIRP|Leclerc|g129w|1991 CanLII 7389 (ONCA)|67 CCC (3d) 563}}{{perONCA|Lacourciere JA}}</ref> | {{CanLIIRP|Leclerc|g129w|1991 CanLII 7389 (ONCA)|67 CCC (3d) 563}}{{perONCA|Lacourciere JA}}</ref> | ||
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</ref> | </ref> | ||
Any force intended to cause bodily harm will automatically negate any consent.<ref> | Any force intended to cause bodily harm will automatically negate any consent.<ref> | ||
{{CanLIIRP|Shand|1gmrf|1998 CanLII 4686 (NSCA)| | {{CanLIIRP|Shand|1gmrf|1998 CanLII 4686 (NSCA)|166 NSR (2d) 74 (NSCA)}}{{perNSCA|Pugsley JA}}</ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
Revision as of 19:57, 22 March 2021
- < Criminal Law
- < Defences
General Principles
Assaultive offences require an absence of consent before they are criminal. In some offences the absence of consent is presumed.
The absence of consent is determined on a subjective standard at the time the physical contact occurs. It is a question of fact determined by the trier-of-fact based on the entirety of the circumstances and the credibility of the alleged victim.[1]
- Consent to Harm
The ability to consent to some form of assault ends once the culprit intends and causes bodily harm.[2]
- Types of Offences
The defence of consent is potentially available for a charge of aggravated assault so long as there is evidence that the accused did not intentionally cause serious bodily harm.[3]
- Nullifying Consent
Consent to a fight cannot be nullified unless there is intent to cause serious bodily harm and serious bodily harm is caused.[4]
- Deemed Absence of Consent
Under s. 265(3), all forms of assault, including sexual assault under s. 271, 272, and 273[5] cannot be consented to when the following exists:
s. 265
[omitted (1) and (2)]
- Consent
(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.
[omitted (4)]
R.S., c. C-34, s. 244; 1974-75-76, c. 93, s. 21; 1980-81-82-83, c. 125, s. 19.
Section 265(3)(d) requires that there be a “coercive use of authority to overcome resistance to a consent”[6]
- Cannot Consent to Infliction of Death
In a more extreme situations, it is not possible to consent to death:
- Consent to death
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.
R.S., c. C-34, s. 14.
- "serious bodily harm"
- ↑ R v Ewanchuk, 1999 CanLII 711 (SCC), per Major J
- ↑
R v Jobidon, 1991 CanLII 77 (SCC), [1991] 2 SCR 714, 66 CCC (3d) 454(V), per Gonthier J
Attorney General’s Reference (No. 6 of 1980) , [1981] 2 All E.R. 1057 (CA) (UK) - ↑ R v McDonald, 2012 ONCA 379 (CanLII), per Himel J, at para 21
- ↑
R v McDonald, ONCA 379 (CanLII) {{{3}}}, per Himel J, at para 26
R v Paice, 2005 SCC 22 (CanLII), [2005] 1 SCR 339, per Charron J, at para 18 ("... Jobidon requires serious harm both intended and caused for consent to be vitiated...") - ↑ this is by function of s. 273.1
- ↑ R v Lutoslawski, 2010 ONCA 207 (CanLII), per Doherty JA
Implied Consent
The doctrine of implied consent is based on the public policy interest to not over-criminalize certain actions. It must be "strictly limited to conduct which is consistent with the purpose and rationale underlying the policy basis".[1]
Any touching protected by implied consent must consist of conduct that "our customary norms of social interaction deem to be consensual." [2] This is determined on an objective basis.[3]
Implied consent is not applicable to sexual assault.[4]
- ↑
R v AE, 2000 CanLII 16823 (ONCA), per Weiler JA, at para 33
- ↑
R v Bennett, 2006 CanLII 31012 (NLPC), per Gorman J, at paras 41 to 45
R v Cey, 1989 CanLII 283 (SK CA), 48 CCC (3d) 480 (Sask CA), per Gerwing JA, at page 490
- ↑
Bennett
Cey
- ↑
R v Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330, per Major J
See Consent in Sexual Offences
Consensual Fight
A consensual fight is not an assault as the parties are consenting to the physical contact. [1] Consent can be negated or vitiated where the force causes bodily harm and was intended to be caused.[2] Thus, where serious bodily harm was intended and caused, there can be no consent.[3]
In the context of a fist fight, the necessary mens rea requires that the force be applied recklessly and the risk of bodily harm was objectively foreseeable.[4]
- With Weapons
No one can consent to a fight with weapons that result serious bodily harm.[5]
- ↑ R v Jobidon, 1991 CanLII 77 (SCC), [1991] 2 SCR 714, 66 CCC (3d) 454, per Gonthier J
- ↑
R v Paice, 2005 SCC 22 (CanLII), [2005] 1 SCR 339, per Charron J
R v WG, 1994 CanLII 3442 (ONCA), 90 CCC (3d) 139 (Ont.C.A.), per Doherty JA
Jobidon, supra, at pp. 22, 23
See R v Crosby, 2005 PESCAD 1 (CanLII), (2005), 27 CR (6th) 39, 192 CCC (3d) 23 (PEI Ct. of App.), per Mitchell JA during a fist fight, consent is not vitiated unless accused intended to inflict bodily harm - ↑ R v Sullivan, 2011 NLCA 6 (CanLII), per Welsh JA, at para 13 ("The test to be applied when assessing whether consent has been vitiated is whether serious bodily harm was caused and was intended.")
- ↑ Sullivan, ibid., at para 24 ("In the context of a consensual fist fight, in light of Paice, the necessary mens rea will be proven if it is established beyond a reasonable doubt that force was applied recklessly and the risk of serious bodily harm was objectively foreseeable.")
- ↑ Jobidon, supra at p. 765-768 (SCR)
Consent in Sports
While normally a person cannot consent to an assault that intends to cause bodily harm, there is an exception to this for sports where the conduct is part of the norms of the particular sport.[1] Thus sports players may consent to some bodily harm necessarily incidental to the sport. However, conduct that is deliberately for the purpose of inflicting injury will not be protected.[2]
The limits of implied consent are determined by an "amalgam of written rules, unwritten code of conduct and guidelines set by a referee in a particular game".[3] Unwritten code can include "legitimate strategy of intimidation" that involves violence.[4]
Given the permissiveness of certain sports and the willingness of players to undertake the risks associated with the game, it is difficult to envision an ability to convict on common assault.[5]
- ↑ R v Jobidon, 1991 CanLII 77 (SCC), [1991] 2 SCR 714, 66 CCC (3d) 454, per Gonthier J
- ↑ R v Leclerc, 1991 CanLII 7389 (ONCA), 67 CCC (3d) 563, per Lacourciere JA
- ↑ R v TNB, 2009 BCPC 117 (CanLII), per Frame J, at para 17
- ↑ TNB
- ↑
R v Green, 1970 CanLII 973 (ON CJ), 16 DLR (3d) 137, per Fitzpatrick J
see also R v Maki, 1970 CanLII 569 (ON CJ), 1 CCC (2d) 333, per Carter J - one of first cases in Canada relating to professional hockey
Consent in Domestic Assaults
There is a degree of implied consent in certain social interactions such as domestic partnerships.[1] Courts have been highly resistant to recognizing consent to an assault between partners.[2] Any force intended to cause bodily harm will automatically negate any consent.[3]
- ↑ R v Menkarios, 2010 ONSC 5478 (CanLII), per R Smith J, at para 38
- ↑
R v Downey, 2002 NSSC 226 (CanLII), [2002] NSJ No. 442 (NSSC), per Leblanc J
R v Lewis, [2004] OJ No. 3059 (Ont. C.J.) (*no CanLII links)
R v Swaine, [1999] OJ No. 3457 (Ont. C.J.) (*no CanLII links)
R v Tierney, [1994] PEIJ No. 118 (PEISCTD) (*no CanLII links)
R v Allum, [1996] AJ No 360 (Alta.P.C.) (*no CanLII links)
R v Stewart, [1996] OJ No 2704 (Ont.C.J.) (*no CanLII links)
R v Abraham, 1974 CanLII 1592 (QC CA), (1974), 30 CCC (2d) 332 (Que.C.A.), per Crete JA
R v Bruce, 1995 CanLII 2442 (BCCA), [1995] BCJ No. 212 (BCCA), per McEachern CJ
R v CMC, [1996] BCJ No. 2545 (BCPC) (*no CanLII links)
- ↑ R v Shand, 1998 CanLII 4686 (NSCA), 166 NSR (2d) 74 (NSCA), per Pugsley JA