R. c. Freedman, 2006 QCCQ 1855 (CanLII)
[19] In the course of his analysis, Gonthier J. expressed concerns about the scope of the assault offence:
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. [4]
[20] Judge and Law Professor Irénée Lagarde is of opinion that the Canadian assault offence was built on the two common law crimes of assault and battery:
Distinction du “common law” entre “l’assault” et la “battery” : la définition des voies de fait ne la reconnaît pas :
Si la définition des « voies de fait ou attaque » énoncée au présent article, provient du “common law”, au contraire de celle-ci, elle évite la distinction entre “assault” et la “battery”. Hawkins’ Pleas of the Crown [1837, Vol. I., p. 110] énonce ce qui suit:
“Une attaque (“assault”) est, semble-t-il, une tentative ou une proposition, accompagnée de violence, de faire mal à un autre. Par exemple, vouloir donner, avec ou sans arme, un coup à quelqu’un; diriger, d’une distance d’où la cible peut être atteinte, une arme à feu contre quelqu’un; pointer une fourche contre quelqu’un qui se trouve à la portée d’un coup; montrer le poing à quelqu’un ou tout autre acte semblable posé d’une façon courroucée et menaçante sont autant de cas de “assault”. Et toute blessure ou inconvénient physique, si léger soit-il, causé à un autre par une personne qui agit par colère, par vengeance ou d’une façon violente ou insolente, en – par exemple – crachant à la figure, en le touchant de quelque façon d’une façon irritée, en le bousculant violemment, constitue une “battery”. Une “battery” comprend nécessairement un “assault”. Il semble universellement admis de nos jours que des mots seuls ne peuvent constituer un “assault” »
[21] In R. v. Burden, McFarlane J.A. relied also on the Common law to define the common assault:
I agree with the argument presented here on behalf of the Crown that s. 244 of the Criminal Code is patently based upon the common law of England which can be referred to to assist in interpreting it. In particular, I refer to Taschereau's Criminal Code of the Dominion of Canada (1893), and the extract there quoted from Hawkins, Pleas of the Crown, vol. 1 (1716-1721), at p. 110. I will not read it all, but s. 2, part of it dealing with battery, seems to me particularly apposite to the question before us. The extract is this:
"Section 2: As to the second point. What shall be said to be a battery. It seems that any injury whatsoever, be it ever so small, being actually done to the person of a man, in an angry or revengeful or rude or insolent manner, as by spitting in his face, or any way touching him in anger or by violently jolting him out of the way are batteries in the eyes of the law."
And later from the same source in Taschereau's Criminal Code, dealing with the subject of battery, the conclusion is stated in these words:
"Battery seemeth to be when any injury whatsoever, be it ever so small, is actually done to a person of a man in an angry or avengeful or rude or insolent manner ... For the law can not draw the line between different degrees of violence, and therefore, totally prohibits the first and lowest stages of it, every man's person being sacred, and no other having a right to meddle with it in any, the slightest manner:"
[22] Burden was acquitted on a charge of indecent assault on the following facts: "the complainant, Miss Bakonyi, was sitting on a practically empty bus when the accused boarded it, looked around briefly, and noticed she was sitting alone on a seat, and came and sat down beside her. Nearly every other seat on the bus was empty at the time, there being, I think, only two other passengers on it. He sat beside her, stared at her for a short while, then put his hand on her thigh for a period of time which she says was between five and ten seconds." The Appeal Court quashed the acquittal and directed a conviction of common assault.
[23] It would seem that a criminal assault must be accompanied with some intention of being violent, insolent or rude. But the facts of the case lead many courts to conclude that very minimal force was necessary to become a criminal assault.
[24] Consequently, there is some debate about the nature of a criminal assault: does the intentional application of force need a hostile context to become criminal? In Canadian Foundation, the Supreme Court struggled with s. 43 of the Criminal code, Binnie J. wrote:
¶ 116 Section 265 is very broad on its face and it has been interpreted broadly, because, as pointed out in Blackstone, supra, at p. 120, it has always been considered unworkable to draw a principled distinction between "degrees of violence". Professor Ashworth adds:
Is it right that the criminal law should extend to mere touchings, however trivial? The traditional justification is that there is no other sensible dividing line, and that this at least declares the law's regard for the physical integrity of citizens.
¶ 117 This near-zero tolerance (i.e., subject to the de minimis principle) for physical intervention continues to be the law, although in R. v. Jobidon, 1991 CanLII 77 (S.C.C.), [1991] 2 S.C.R. 714, Gonthier J. suggested that, in the family context, the law of assault should have a more nuanced application. Otherwise, he said, at pp. 743-44:
... 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... . That absurd consequence could not have been intended by Parliament.
¶ 118 We are not asked in this case to establish the threshold for a criminal "assault" in the family context, or whether the unwanted touching in Gonthier J.'s example could be said to be "by way of correction". Section 43 presupposes the existence of conduct that does amount to a criminal assault. Section 265 would clearly be triggered by much of the non-violent physical contact that is not out of place growing up in a robust family environment. The appellant points to some other jurisdictions like Sweden, which do without a parental defence provision equivalent to s. 43; but Sweden, at least, has a very different criminal law regime applicable to physical assaults.
[25] Surely, in her opinion, Arbour J. shared a different view when she wrote: “the application of some force upon another does not always suggest an assault in the criminal sense”
[26] In R. v. Cuerrier, L'Heureux-Dubé J. formulated the opinion that the assault provision in the Criminal Code is very broadly constructed:
¶ 11 As can be seen from an examination of the underlying elements of assault, which form the basis of all of the assault provisions, the Criminal Code prohibition against the intentional and non-consensual application of force is very broadly constructed. Any unwanted touching by another, no matter how minimal the force that is applied, is criminal. The physical acts prohibited by the assault scheme include not only a punch in the face, or forced sexual intercourse at knife-point, but also placing one's hand on the thigh of the person sitting adjacent on the bus: see R. v. Burden (1981), 25 C.R. (3d) 283 (B.C.C.A.). Clearly, the purpose of the assault scheme is much broader than just the protection of persons from serious physical harm. The assault scheme is aimed more generally at protecting people's physical integrity.
[27] In 1943, Ross D.C.J. in R. v. McGibney, did conclude that an assault must consist of threatening actions, i.e. intent to apply violence and that grabbing one's collar in the course of an agitated argument was not. It seems that McIntyre J. in R. v. Lepage adopted the same approach in defining a criminal assault. Even with the plaintiff's version accepted by the trial judge, McIntyre believed "that there was no evidence to support a finding that there was an intentional application of force by Lepage against Mitchell in the sense of being a wrongful application of force".
[28] The question was extensively examined in R. v. Matsuba, a case involving an art schoolteacher and a student aged fourteen. Apparently, the accused's hand would have touched the student between her ankle and her knee, without sexual overtones, during a regular class when he approach to check on the assignment he gave her. The Court did not find that the prosecution had proved its case. Nevertheless, and relying on R. v. Burden, Jones Prov. Ct. J. went on:
It is not simply enough that there be an intentional deliberate touching, without consent, but it is necessary, in order to conclude that the particular touching constitutes "force" within the meaning of the statutory provision, that there be a connotation of anger, revengefulness, rudeness, or insolence, or at least some like behaviour to the touching performed before it can be said that there is the "force" which completes the legal definition of assault. It seems to me that this must be so, otherwise any deliberate application of physical contact that exhibited nothing more than the general intent to intentionally touch the victim without the victim's consent would be actionable at the instance of the criminal law …"
[29] In R. v. Matsuba, Jones Prov. Ct. J. was prepared to find that the Burden case did reveal circumstances "which had a major bearing on the conclusion that the B.C. Court of Appeal came to with respect to the evidence pointing towards a conviction for assault", mainly being the bizarre attitude of the accused.
[30] The case of R. v. Phillips is also instructive and illustrative. Philips was charged with assaulting a police officer. He was trying to get into his office in a building being picketed. He had called the police. An animated discussion followed between one of the officer arriving on the scene and Phillips. At one point, the officer turned away from Phillips when the latter denounced the officer as "another union bum protecting the strikers". Phillips then grabbed the officer's wrist and poked his fingers at the officer's chest, telling him that if the officer would not help him, he should get someone who would. Brien Prov. Ct. J. held that the de minimis principle could apply depending on the circumstances of the case. He found that the grabbing of the wrist was done in a motion to indicate that he did not want the officer to leave. It was trivial and could not constitute an assault. However, when the accused poked the officer in the chest, it was voluntary touching done in anger, it was not a friendly contact nor was it done with consent express or implied. Although minor, it could not be considered trivial.
[31] It would seem that motive played a part in these decisions. Although motive is no part of the crime and is legally irrelevant to criminal responsibility, it may be used to determine the nature of the assault. It was suggested in R. v. Elek that motive might be useful to determine if a criminal assault was intended and that "a criminal assault is one motivated by some degree of animus or ill-will".
[32] However, as we have seen, that route was not always followed. In R. v. Dejong, MacDonald Prov. Ct. J. held that "… if it's an intentional application of force without the consent of the other, it may technically be an assault."
[33] Most importantly, in R. v. Bernier, the Quebec Court of Appeal was asked to decide if Bernier's actions constituted an assault, and more specifically, a sexual assault.
a) L'absence de caractère "hostile" de l'agression
[…]
¶ 19 Une agression suppose-t-elle nécessairement le recours à la force physique ou à une forme quelconque d'hostilité physique? N'existe-t-il pas des situations où un agresseur n'a pas besoin d'utiliser sa force pour porter atteinte à l'intégrité physique ou sexuelle de sa victime?
[…]
¶ 21 Le sous-paragraphe 265 (1)a) stipule que l'emploi intentionnel de la force, directement ou indirectement, est nécessaire pour commettre une agression. Toutefois, le terme force souffre d'imprécision. Quel degré de force est requis pour constituer une agression? S'agit-il d'une force physique extrême ou négligeable?
¶ 22 À cet égard, la Common law a adopté une approche souple pour définir la force. Les auteurs Smith et Hogan adoptent la notion de "intentional touching... without consent and lawful excuse":
An assault is an act by which D, intentionally or recklessly, causes P to apprehend immediate and unlawful personal violence (...). But "violence" here includes any unlawful touching of another, however slight, for, as Blackstone wrote:
"the law cannot draw the line between different degrees of violence, and therefore prohibits the first and lowest stage of it; every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner."
As Lane LCJ put it:
"An assault is any intentional touching of another person without the consent of that person and without lawful excuse. It need not necessarily be hostile, or rude, or aggressive, as some of the cases seem to indicate."
¶ 23 Selon cette définition, tout toucher intentionnel sans excuse légitime est donc une agression.
[34] The Quebec Appeal Court concluded that the trial judge erred in acquitting the accused of sexual assault, inter alia, on the basis that evidence did not reveal the hostility required for an assault. Further appeal to the Supreme Court was summarily dismissed. By concluding that any intentional touching without lawful excuse is an assault, the Quebec Appeal Court interpreted the offence very broadly.
[35] The above brief development illustrates, in my view, some difficulties associated with the assault offence when borderline cases reach the Courts. Like Binnie J. acknowledged in Canadian Foundation, it is difficult to draw a principled distinction between degrees of violence. One could argue that there should be a clear line between criminal and non-criminal conduct. An all-inclusive definition might be clear, but it might also attract absurd results, like the illustration in R. v. Jobidon. It is worth noting that Bernier was a case of sexual assault, a concept that may demand different considerations for policy reasons, as in R. v. Jobidon.
[36] The Court is inclined to decide that the intentional application of force does need a context of hostile, rude, aggressive or disrespectful attitude to levitate to the criminal level as in R. v. Burden or R. v. Bernier.
Aucun commentaire:
Publier un commentaire