Assault

Question 1

R v Cey

Answer 1

Facts: A crosschecks B from behind into boards. B says he would continue to play hockey even if he knew he would suffer injuries.

Held: New trial ordered. Judge ought to have directed himself to the question of whether there was express or IMPLIED CONSENT to this type of contact and whether the contact was of such a nature that in any event no true consent could be given.

Question 2

R v LeClerc

Answer 2

Facts: A and B race into boards, collision. A receives match penalty (deliberate attempt to injure), B paralyzed from neck down. Was either a cross check, or a light shove, causing B to lose balance and crash into boards. Referee and linesman gave conflicting stories of hit.

Held: The essential intent required for all forms of assault, including aggravated assault, is the same. Intentionally applying force. TJ erred on that front. Furthermore, question of implied consent was not properly addressed in trial court. All this resulted in inappropriate burden on prosecution.

However, doesn’t necessarily require new trial. The Crown had not satisfied ONCA that the verdict of acquittal would not necessarily have been the same if there had been no self-misdirection in law. (TJ found the push was directly from A’s loss of balance, “instinctive reflexive reaction” to minimize risk of bodily harm created by high speed in close proximity to boards

Question 3

R v Desousa

Answer 3

Facts: D got in fight with people at party, threw bottle at wall. Bottle smashed, glass hit A in arm, causing considerable injury. D charged with unlawfully causing bodily harm (s. 269).

Held: Not unconstitutional (7 and 11d)

Analysis: - 269 requires an underlying unlawful offence (predicate offence) AND have caused bodily harm (beyond trivial) as a result. Harm must have sufficient causal causation to underlying unlawful offence (ULO).
- 269 has two mens rea requirements:
1. Mental element of underlying unlawful offence
 Act must be both unlawful (at least objectively dangerous) AND one that is objectively likely to subject another person to danger of harm/injury
2. Additional fault requirement
 Prosecution must prove bodily harm caused by ULO was objectively foreseeable

• The additional fault requirement is only unconstitutional if it is one of the few offences that requires subjective fault based on stigma/penalty.
• SCC says it does not

Question 4

R v Johnson

Answer 4

Facts: A male and B female arguing in hotel hallway, A pushes B against wall. Hotel manager broke things up, B went to lobby while A stayed in hotel. D comes out of adjoining room and punches A in face with fist, clenching small flashlight, broke A’s jaw. D used flashlight to get out of bed, D claims he forgot he had it when he hit A.

Held: D loses: conviction of ACBH supported beyond a reasonable doubt
ACBH does not require objective (at least in BC) or subjective foreseeability (all Canada) of bodily harm.

Question 5

R v Jobidon

Answer 5

Facts: Bar fight, guy dies

Held (Gonthier majority): The limitation on assault 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. Therefore assault charge stands.

Question 6

R v Brown

Answer 6

Facts: Group of men partaking in acts of violence for sexual pleasure, all with consent of passive partner / victim.

Held: Convictions upheld. Consent as a defence for assault ought only be extended to socially useful activities, this is not one of them.