R. v. Sullivan, 2011 NLCA 6
The First Reason: Changed Nature Vitiating Consent
[34] Whether consent to a fist fight is explicit or implied, it must be taken to have been given in the expectation that what follows will be a fist fight, carrying with it some risk of serious bodily harm. It is difficult to imagine a fist fight that will not have some risk, however minimal, of serious bodily harm. Employing tactics which will change the nature of a consensual fist fight from an activity having some risk of serious bodily harm to an activity with a significant risk of serious bodily harm makes the fight essentially a fraud. As was recently decided in R. v. Mabior, 2010 MBCA 93, at paragraph 57, in the course of discussing the view expressed by Cory J. in R. v. Cuerrier, 1998 CanLII 796 (SCC), [1998] 2 S.C.R. 371:
The criminal law definition of commercial fraud applied by Cory J. to sexual assault vitiates consent whenever there is a deception resulting in deprivation. The element of deception is satisfied by failure to disclose. The element of deprivation is satisfied by exposure to a significant risk of serious bodily harm.
[35] The same can be said to occur when two parties consent to resolve their differences by a fist fight but during the course of the fight one resorts to more forceful means. The element of deception is satisfied by failure to disclose a willingness to resort to application of force by a means more hazardous than normal punching with a fist. The element of deprivation is satisfied by exposure to a significant risk of serious bodily harm.
[36] I do not read Jobidon as requiring, or even supporting, a view that it is not helpful to consider that consent may have been vitiated by the nature of the fight being changed as a result of one party employing tactics that had not been reasonably contemplated in the first instance. At pages 766 to 767, Gonthier J. wrote:
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.
Stated in this way, the policy of the common law will not affect the validity or effectiveness of freely given consent to participate in rough sporting activities, so long as the intentional applications of force to which one consents are within the customary norms and rules of the game. Unlike fist-fights, sporting activities and games usually have a significant social value; they are worthwhile. In this regard the holding of the Saskatchewan Court of Appeal in R. v. Cey, supra, is apposite.
The court's majority determined that some forms of intentionally applied force will clearly fall within the scope of the rules of the game, and will therefore readily ground a finding of implied consent, to which effect should be given. On the other hand, very violent forms of force which clearly extend beyond the ordinary norms of conduct will not be recognized as legitimate conduct to which one can validly consent.
(Emphasis added.)
[37] Clearly, Gonthier J. is saying that the application of common law principles to the proof of absence of consent, required by section 265, would permit vitiation of consent on policy grounds only in limited circumstances. One of those, he writes, is “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”.
[38] Gonthier J. also says that “it may be that further limitations will be found to apply in other circumstances”. I suggest that one such circumstance occurs where consent is vitiated by reason of one party employing hazardous tactics that change the nature of the consensual fight. I would also note that a change in the nature of a consensual fist fight is a circumstance that in many instances can be more readily proven. Thus, analysis of evidence indicating changed circumstances may be very helpful. The comments that Gonthier J. made about one of the decisions he considered, without criticism of the point, would support these views. At page 750 he wrote:
In 1972, the Appeal Division of the New Brunswick Supreme Court rendered its decision in R. v. MacTavish (1972), 1972 CanLII 1456 (NB CA), 8 C.C.C. (2d) 206, a case in which two boys got in a schoolyard fight that ended when one boy sustained a broken nose from kicks landed by the other. The court simply assumed that consent was an operative defence to a charge of assault under (then) s. 244 of the Code -- the onus being on the Crown to prove absence of consent beyond a reasonable doubt. However, in strict terms that view was obiter because, on the facts, while the injured boy had consented to a "fair fight", he had not consented to having his "head kicked in". He had not agreed to having that kind of force inflicted on him, nor had he agreed to that particular form of activity. The court upheld the conviction on that basis, not on the ground that the defence of consent must in all situations be legally effective.
[39] Here, the trial judge having found, as a fact, that “the consensual fight was a fist fight … [not] a kneeing fight or a kicking fight…” and that Mr. Sullivan employed his knee to impact the complainant’s head, was clearly justified in concluding that the nature of the fight was changed and, as a result, consent was vitiated. The complainant’s jaw having been broken as a result of force intentionally applied by Mr. Sullivan, in circumstances where consent was vitiated, the elements of the offence are readily established. That, alone, is sufficient to require dismissal of the appeal.
The Second Reason: Intention to Inflict Serious Injury
[40] The second reason that the trial judge expressed to support her conclusion that the offence of assault causing bodily harm had been proven beyond a reasonable doubt is that the two elements identified in Jobidon – intention to cause serious bodily harm and actually causing serious bodily harm – had been proven. She concluded that by delivering upper cuts to the complainant and doing so “as hard as he could”, Mr. Sullivan was reckless as to whether his acts caused bodily harm to the complainant.
[41] After Jobidan, it is very difficult to see how intention to cause serious bodily harm will ever be in question, in a consensual fist fight, since in virtually every fist fight between adults each is trying to inflict discomfort or bodily harm, even if only a knockout (a concussion), that will be sufficiently serious to cause the opponent to concede. Perhaps the emphasis should be on the stage at which the conduct moves into the realm of, in the words of Gonthier J., “very violent forms of force which clearly extend beyond the ordinary norms of conduct”. Thus, an intention to cause a black eye or broken nose, or even a knockout, using only fists would be acceptable while an intention to cause more serious harm would not.
[42] In reality, parties would not be that nuanced in the degree of force to be employed. The probable result is that, in the case of limitation by public policy, parties would have to accept the risk of criminal sanctions in every fight, since serious bodily harm could be caused and a court applying policy considerations could conclude that, in the circumstances, it was intended.
[43] Limitation of consent as a result of public policy considerations need only become an issue where consent has not, on the evidence, been otherwise vitiated. In this case, the trial judge correctly decided the complainant’s consent was vitiated as a result of Sullivan changing the nature of the fight when he chose to apply his knee to the complainant’s head. As noted above, that is, in itself, sufficient to allow this Court to dismiss the appeal.
[44] Nevertheless, as the second reason was also relied upon by the trial judge, and accepted by Welsh J.A., it is appropriate to comment on it. The trial judge cited R. v. A.E., (2000) 2000 CanLII 16823 (ON CA), 35 C.R. (5th) 386, 146 C.C.C. (3d) 449 as authority for the proposition that “the mental element of intention of assault causing bodily harm is satisfied by proof that the accused was reckless, whether his acts caused bodily harm to the defendant…”. In that case the Ontario Court of Appeal decided that “the Crown need only prove that in acting as he did, the appellant was reckless whether or not his act caused harm to the baby for the mental element to be established”.
[45] In her draft reasons Welsh J.A. cites the decision in R. v. Williams, 2003 SCC 41 (CanLII), [2003] 2 S.C.R. 134, which determined the mens rea required for aggravated assault and concluded that the same standard applies to assault causing bodily harm. I agree. As a result I also agree with Welsh J.A. that, “it was not necessary for the Crown to prove that Mr. Sullivan intended to break the complainant’s jaw… 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”.
[46] There may, however, be some difficulty concluding, as Welsh J.A. does, that Mr. Sullivan applying upper cuts as hard as he could demonstrates intention to cause serious bodily harm, in the context of a consensual fist fight. In the ordinary course, coming to that conclusion may require some evidence that such uppercuts would likely or, at the very least, could, break a jaw. It is not, however, necessary to resolve that in the circumstances of this case. On direct examination, in the course of Mr. Sullivan describing the manner in which he was delivering “five or six” uppercuts to the complainant, the following exchange occurs:
Q. So do you feel that when you hit him with the upper cut that that may be was when his jaw was broken?
A. Well, there was no other way like really coming up something had to give.
Clearly, as Welsh J.A. concludes, Mr. Sullivan was reckless as to whether his actions would cause bodily harm to the complainant. His recognition that something had to give puts that beyond reasonable doubt. I agree with her that that is sufficient to establish the mental element of the offence charged. Accordingly, this appeal can be dismissed on that basis as well.
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