Mistake of Fact

Mistake of Fact and consent

Thoughts re: Mistake of Fact w.r.t. consent

Mistake of fact:

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;

Mistake of fact w.r.t. consent is therefore a valid defence.

It is important to note that mistake of fact (with the exception of sexual assault cases) does not have to be based on reasonable grounds.

R. v. Bulmer [1987] 1 S.C.R. 782

“The defence has been variously described and may be conveniently stated in these terms. If an accused entertains an honest belief in the existence of a set of circumstances which, if they existed at the time of the commission of an otherwise criminal act, would have justified his act and rendered it non-criminal, he is entitled to an acquittal. The law on this question as far as Canada is concerned has been stated authoritatively in Pappajohn v. The Queen, [1980] 2 S.C.R. 120. Dickson J. (as he then was), writing on this point with the concurrence of the majority of the Court, held that the defence was available in Canada, that it goes to the question of whether the accused had the necessary mens rea for the commission of the crime involved, and that the mistaken belief upon which the defence rests need not be reasonable, if honestly held. The subject has been further explored by my colleague, Wilson J., in her reasons for judgment in R. v. Robertson, [1987] 1 S.C.R. 918 (judgment delivered concurrently), with whose observations I agree.”

But I would argue that there were reasonable grounds for our client to believe that the complainant was one of the attackers. He is Latin American, and therefore brown skinned like the group of Arabs that attacked our client. Furthermore, email communication with the crown indicates that the complainant was friends with at least two of the Arab men in question, and he was by all accounts, near or at the scene of the crime. It is therefore not a stretch to believe that the complainant was one of his attackers. Impaired, and justifiably angry, our client had reasonable grounds to believe that the complainant was one of his attackers, and fleeing from him after subjecting him to significant bodily harm.

Note: R. v. Jobidon [1991] 2 S.C.R. 714: 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.

Firstly, Jobidon specifically mentions that intention is needed to vitiate consent. This is also the requisite mental element for the assault offence (R v Danydink 253 C.C.C. (3d) 493 (B.C C.A) Did our client intentionally cause serious bodily harm? It is possible that he was reckless or careless, but quite unlikely that our client, impaired and justifiably angry, had the requisite intention to cause serious bodily harm to the complainant. Our client was simply reacting to the onslaught by a group of men. He was actively defending himself, rather than intentionally attacking the complainant with the intent of causing serious bodily harm. Mistake of fact w.r.t. consent is very much a live issue.

Even if we are to accept that our client had the requisite intention there are ways around the Jobidon problem. It is important to note that in Jobidon “the fight” resulted in death. In R. v. Nash  [1996] O.J. No. 4239, Quinn J. reviews Jobidon exhaustively and has some interesting insights into the decision.

at p. 491:

“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 …
Notwithstanding this conclusion, given the residual indetermination 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.
Foremost among the policy considerations supporting the Crown is the social uselessness of fist fights … 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.”
and at p. 492:

“Given the spontaneous … nature of many fist fights, I would not wish to push the deterrence rationale too far. None the less, 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.”
and at p. 493:

“… 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.”
and at p. 494:

“… it must not be thought that by giving the green light to the common law, and a red light to consent 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.
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.”
and at p. 495:

“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’.”
15     Although the review, by Gonthier J., of the jurisprudence was sweeping, the end result was less so. I regard the ratio decidendi to be no more than this: in the case of a consensual, weaponless fist fight (brawl), between two adults, consent is ineffective as a defence where serious hurt or non-trivial bodily harm is occasioned. Such a ratio, with nothing more, would logically support an inference that, in the case of a consensual, weaponless fist fight (brawl), between two adults, consent is effective where less-than-serious hurt or trivial bodily harm is occasioned. However, the matter ceases to be inferential and is rendered explicit, by the words of Gonthier J. just mentioned above (at p. 495):

“… the preceding formulation avoids nullification of consent to intentional applications of force which cause only minor hurt or trivial bodily harm.”
Thus, Jobidon does not eliminate consent as a defence in cases of assault simpliciter.

2.
According to Jobidon, What Level of Bodily Harm Must Be Suffered Before Consent Is Rendered Ineffective As A Defence?

16     Earlier I set out this statement by Gonthier J. (at p. 494) which I now repeat:

“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.”
(Emphasis added.)
17     However, Gonthier also stated, as already indicated (at p. 495):

“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’.” (Emphasis added.)
18     So, what is the level of bodily harm that must be reached before consent ceases to be a valid defence? Should “serious hurt or non-trivial bodily harm” and “minor hurt or trivial harm” be read so as to be compatible with the definition of bodily harm found in s. 267(2) of the Criminal Code? Or, as Crown counsel submits, in using the words “essentially equivalent”, is Gonthier J. proposing another (and lower) threshold of bodily harm? I disagree with such a submission. To begin with, no good purpose would be served by setting up a new category of bodily harm. The law of assault would be complicated unnecessarily. It would result in a sliding scale for bodily harm. Furthermore, Crown counsel is putting too fine a point on the meaning of “essentially”. In The Shorter Oxford English Dictionary (Third Edition), “essential” is defined as “of or pertaining to the essence of anything”. Consequently, it is my view that Gonthier J. was not at all purporting to set up a new category of bodily harm. Instead, the bodily harm that vitiates consent is that which is found in s. 267(2) of the Criminal Code and nothing less. Support for this view is found in R. v. Welch (1995), 43 C.R. (4th) 225 (Ont.C.A.), where Griffiths J.A., writing for the Court, states at p. 249:

“In my view, however, the message delivered by the majority in Jobidon is that the victim cannot consent to the infliction of bodily harm upon himself or herself, as defined in s. 267(2) of the Code, unless the accused is acting in the course of a generally approved social purpose when inflicting the harm.” (Emphasis added.)
19     Accordingly, the ratio in Jobidon could be stated as follows:

20     In the case of a consensual, weaponless fist fight (brawl), between two adults, consent is ineffective as a defence where bodily harm, as defined in s. 267(2) of the Criminal Code, is occasioned. Thus, the logical inference, of which I spoke earlier, would now be that consent is effective as a defence where the level or degree of bodily harm falls short of, or does not meet, the definition found in s. 267(2).

My thoughts on how we can use this: Jobidon is the leading case on consent being vitiated, and the policy considerations underlying the decision provide important insights into why the court came to this decision. The court talks of fist fights and brawls, and how public policy dictates that these activities be discouraged. It is clear that public policy had a huge role in Jobidon, and public policy does dictate that people not consent to their own deaths in voluntary fist fights. However, for our client, the situation was neither an active fistfight (He was attacked by another group of people, and he responded to defend himself), and it is not clear if public policy would dictate that consent or the mistake of fact with respect to consent be unavailable in this case. It would be entirely unjust if a person responding to a brutal attack is the one who is charged with assault, and cannot argue mistake of fact w.r.t. consent, while the instigators of the violence are used as witnesses against him. This is clearly not what Jobidon envisaged when it talked about consent being vitiated. Mistake of fact w.r.t. consent should be very much a live issue in our case.

In the above case (R. v. Nash  [1996] O.J. No. 4239), the judge finds that Jobidon did not eliminate consent as a defence in cases of assault simpliciter 2. According to Jobidon, the level of bodily harm that must be suffered, before consent will be ineffective as a defence, is “bodily harm” as defined by s. 267(2) of the Criminal Code. 3. The altercation, in the case at bar, is not of such a nature that public policy should proscribe the defence of consent.

Ultimately, Jobidon is a case about public policy. The court needs to consider whether public policy mandates that a victim of an assault by a group of men be the target of the criminal sanction. Other cases have cited Jobidon and discussed public policy reasons for finding the accused guilty or not guilty.

QUESTION: WHAT IF YOU consent to a fight and cause bodily harm but did not intend to do so? The law is less clear. Supreme Court cases after Jobidon suggest that bodily harm must be intended and caused. English law suggests that bodily harm must be intended or caused.

R. v. Amos [1998] O.J. No. 3047

1     THE COURT (endorsement):– The policy considerations and legal principles which inform the reasoning of the Supreme Court of Canada in R. v. Jobidon (1991), 66 C.C.C. (3d) 454 and this court’s decision in R. v. Welch (1995), 101 C.C.C. (3d) 216 have no application to the case at hand.

2     In Welch, Griffiths J.A. stated at p. 238 that, “the message delivered by the majority in Jobidon is that the victim cannot consent to the infliction of bodily harm upon himself or herself, as defined by s. 267(2) of the Code, unless the accused is acting in the course of a generally approved social purpose when inflicting the harm.” Griffiths J.A. went on to observe at p. 239 that — “[A]lthough the law must recognize individual freedom and autonomy, when the activity in question involves pursuing sexual gratification by deliberately inflicting pain upon another that gives rise to bodily harm, the personal interest of the individuals involved must yield to the more compelling societal interests which are challenged by such behaviour.”

3     In Welch, the court was concerned with sado-masochistic sexual activity involving the deliberate infliction of pain and injury, conduct which the court described as being “inherently degrading and dehumanizing.” The same cannot be said about the sexual conduct engaged in by the appellant. There is no suggestion in the evidence that the appellant deliberately inflicted injury or pain to the complainant. Moreover, it cannot be said that anal intercourse is inherently degrading and dehumanizing or that it constitutes socially unacceptable conduct, particularly in view of s. 159(2) of the Criminal Code which excepts from criminal liability anal intercourse between consenting adults in private.

4     It follows, in our view, that the trial judge erred in concluding that the resulting bodily harm to the complainant rendered irrelevant the presence or absence of consent on her part. Given the trial judge’s finding that the Crown had failed to prove lack of consent beyond a reasonable doubt, in the particular circumstances of this case, the conviction cannot stand.

R. v. Bruce [1995] B.C.J. No. 212

The Jobidon case on its facts applied to the vitiation in law of apparent consent in fact where the force was intentionally applied in the course of a fist fight or brawl and the force was such as was intended to cause and did cause serious hurt or non-trivial bodily harm. Counsel for the appellant in this appeal argued the very same standard of public policy vitiation of consent as is derived from the facts of the Jobidon case should be applied in cases of family altercations. However, I do not think that the same standard that applies to brawls and fist fights between grown men should apply to domestic altercations between a man and a woman. In the public interest I think that the public policy discussed in Jobidon and which underlies the decision in that case must take a stricter view of the level of applied force which should vitiate apparent consent as a matter of law in domestic altercations than it does in brawls and fist fights. In my opinion, the intentional application of sufficient force as to be capable of causing an injury that is more than trivial should operate to vitiate apparent consent in a domestic altercation between a man and a woman.