[21] On appeal, counsel for the appellant takes the position that R. v. Paice, 2005 SCC 22 (CanLII), [2005] 1S.C.R. 339 and R. v. Quashie, 2005 CanLII 23208 (ON CA), [2005] O.J. No. 2694 (C.A.) have clarified that consent may be available as a defence on a charge of aggravated assault even where serious bodily harm is inflicted so long as the accused did not intentionally cause the serious bodily harm.
[22] Counsel for the Crown relies on the case of R. v. Godin, 1994 CanLII 97 (SCC), [1994] 2 S.C.R. 484, where the court held on a charge of aggravated assault that the Crown is not required to prove that the accused intended to cause bodily harm. The court wrote that the mens rea for aggravated assault is “objective foresight of bodily harm” and that: “It is not necessary that there be an intent to wound or maim or disfigure.” The Crown argues that the mens rea requirement means that, if vitiating consent requires proving that the accused had the intent to inflict serious bodily harm, then the mens rea for aggravated assault will be raised from objective to subjective, which cannot be correct. Counsel for the Crown further submits that the cases of Jobidon and Paice should be interpreted in light of Godin and that any “consent” given by a complainant during the course of a fight will be vitiated if the Crown establishes that: (1) the accused intentionally applied force to the complainant; (2) the force the accused intentionally applied caused bodily harm to the complainant; and (3) a reasonable person, in the circumstances, would inevitably realize that the force the accused intentionally applied would put the complainant at risk of suffering some kind of bodily harm.
[23] Crown counsel also takes the position that the defence at trial had admitted certain facts concerning the intentional application of force and causation but contested the issue of objective foresight. As a result, the trial judge instructed that jury concerning this element of the offence of aggravated assault and said that they needed to decide:
Would a reasonable person, in the circumstances inevitably realize that the force McDonald intentionally applied put Gibson at risk of suffering some kind of bodily harm although not necessarily serious bodily harm or the precise kind of harm that Mr. Gibson suffered here?
[24] The trial judge then instructed the jury that if they were not satisfied beyond a reasonable doubt that this element had been proven, they must then decide: “...did Gibson consent to the force that McDonald applied?” This is the point at which the issue of consent was considered relevant. Crown counsel supports the order and the manner of the instruction.
V. Analysis on the Issue of Consent
[25] In R. v. Paice, there was a scuffle in a bar and the accused was challenged by the deceased to go outside and fight, which he did. They exchanged threats and the deceased pushed the accused once or twice. The accused hit the deceased in the jaw, and the deceased fell backward and hit his head twice. The accused then straddled the deceased and struck him twice more. The deceased died as a result of his injuries. The accused was charged with manslaughter. He argued that the deceased’s consent to the fight vitiated criminal responsibility and that the trial judge used an incorrect test for determining whether consent is negated. The trial judge held that the defence of consent did not apply if there was either intent to cause serious bodily harm or serious bodily harm was caused.
[26] The Court of Appeal ordered a new trial. The Supreme Court of Canada dismissed the appeal. The court held that the trial judge erred in formulating the test in the alternative. Rather, the court held at para. 18 that, in accordance with the Jobidon decision, consent cannot be nullified unless there is both intent to cause serious bodily harm and serious bodily harm is caused. The Supreme Court re-affirmed and refined the Jobidon decision and held that serious harm must be both intended and caused for consent to be vitiated.
[27] In R. v. Quashie, the Court of Appeal considered an appeal from conviction of the offences of sexual assault and sexual assault causing bodily harm where the complainant alleged that she had been sexually assaulted and that she was injured during the second assault. The appellant argued that the trial judge erred in failing to charge the jury on the issue of consent in respect of the offence of aggravated or sexual assault causing bodily harm and submitted that there was no suggestion that the accused deliberately inflicted injury or pain to the complainant. It was argued that whatever injuries the complainant suffered were incidental to sexual intercourse and that consent was an available defence. Justice Gillese reviewed the decision in R. v. Paice and wrote at para. 57:
Based on the authorities, in my view, it was an error for the trial judge to fail to instruct the jury that in order for bodily harm to vitiate consent, they had to find both that the appellant had intended to inflict bodily harm on the complainant and that the appellant had caused her bodily harm.
[28] Accordingly, following Paice and Quashie, consent is vitiated only when the accused intended to cause serious bodily harm and the accused caused serious bodily harm. The defence of consent may, if the facts support it, be available in the context of a charge of aggravated assault. In the case at bar, in my view, the trial judge erred by removing the defence of consent from the jury for its consideration on the charge of aggravated assault.
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