COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zhao, 2013 ONCA 293

DATE: 20130503

DOCKET: C54572

Laskin, Juriansz and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jian Zhao

Appellant

Michael Davies, for the appellant

Lisa A. Joyal, for the respondent

Heard: September 21, 2012

On appeal from the conviction entered on April 21, 2011 and the sentence imposed on May 11, 2011 by Justice Denis J. Power of the Superior Court of Justice, sitting with a jury.

Tulloch J.A.:

A. Overview

[1] The appellant was charged with sexual assault causing bodily harm and forcible confinement. Following a trial composed of a judge and jury, he was found guilty of the charge of sexual assault causing bodily harm and acquitted of the charge of forcible confinement. The appellant appeals from his conviction.

[2] The main issue on appeal is whether the trial judge properly instructed the jury on the law with respect to the role of consent in sexual assault causing bodily harm; and more specifically, whether the trial judge followed this court’s decision in R. v. Quashie (2005), 2005 23208 (ON CA), 198 C.C.C. (3d) 337 (Ont. C.A.).

[3] The appellant also seeks leave to appeal his sentence.

[4] For the reasons that follow, I conclude that the trial judge erred in not following this court’s decision in Quashie and charging the jury that in order to convict the appellant on the charge of sexual assault causing bodily harm, they must first find that the appellant both intended to cause bodily harm to the complaint and that bodily harm resulted, thus vitiating the defence of consent to the bodily harm aspect of the charge. Accordingly, I would allow the appeal, quash the conviction and order a new trial. In light of the disposition I would order on the conviction appeal, it is not necessary that I address the sentence appeal.

B. background

(a) The Facts

[5] On January 10, 2009, the complainant, a musician, who also works in the field of holistic medicine, went out on a date with a male co-worker. After dinner, they then proceeded to another establishment where they had dessert and then attended at a live music venue. They stayed there only briefly, after which they attended at another night club.

[6] The complainant decided to end her date with her co-worker early because he became jealous about her interaction with others. After parting company, she went to the bar and had a glass of water.

[7] Up to this point, the complainant testified that she had consumed two glasses of wine with dinner, two glasses of champagne with dessert, and half of a double gin and soda at the night club. In her view, this was more alcohol than she would normally drink. She described herself as intoxicated. She believed she was not slurring or stumbling, but she acknowledges that she was having some difficulty with her memory of the events.

[8] The complainant estimated that it was about 1:00 a.m. when she left the night club to hail a taxi. However, when she went outside, she was attracted to the sound of a man playing a guitar and singing. She lingered a while and started to sing along.

[9] Shortly thereafter, as she was about to hail a taxi again, she encountered the appellant. She had not met him before. She testified that this was “a little blurry” but that the appellant approached her and initiated a conversation. She recalls they talked about music, martial arts and Buddhism. The appellant invited her back to his apartment. The complainant indicated that she was feeling vulnerable, having broken off her date earlier, but was also nonchalant and social. She did not see the appellant as a threat. At about 1:30 a.m. she accompanied the appellant to his apartment by taxi. They conversed during the cab ride. However, when they arrived at the appellant’s building, the complainant became apprehensive.

[10] The complainant indicated that she should have just taken the cab home but that the appellant persuaded her to come inside instead. They walked up two flights of stairs to the appellant’s apartment where he lived with his mother. The appellant’s mother was present in her bedroom with the door open. The complainant saw her watching television.

[11] The complainant and appellant first went to the kitchen, where the appellant poured them each a red-coloured alcoholic “cooler” beverage. They drank those beverages, after which the complainant requested a telephone, which she used to attempt to call friends to advise them of where she was. She did not speak to anyone directly but left a message for her boss.

[12] After going briefly to the laundry room and seeing the appellant’s Buddhist shrine, the complainant asked if they could listen to some music. The appellant indicated they could in his room.

[13] They then went to his room. There they engaged in some dancing and play fighting, which the complainant described as harmless and flirtatious. The complainant indicated that they then started “making out” while lying on the floor. During this time they did not exchange words, and at some point the complainant’s shirt was removed. Thus far, the complainant testified that the activity was consensual – she was not resisting.

[14] The appellant then left the room wearing shorts and returned with his shorts removed and with a condom in his hand. He closed the door. At this point the complainant said something in her was “triggered” by the sight of the condom. She testified that she did not want to participate in any activity that involved a condom.

[15] She indicated that her recollection of what happened next became disjointed and hazy “like if you were to take some cards and just kind of flash them, that’s sort of what this part feels like.”

[16] It should be noted at this point that the complainant suffered from Post-Traumatic Stress Disorder (“PTSD”) stemming from a sexual assault that had occurred exactly one year earlier. The complainant testified that this may have influenced her “flashy” memory of the incident with the appellant and her inability to recall certain things immediately following the event, such as the condom. However, portions of her memory returned after subsequent therapy.

[17] She indicated that once the appellant returned to the room with the condom, she retreated into a corner of the room near a window and got into a defensive stance, crouched down, with her hands in front of her face. She indicated that he came towards her. She made a move towards the door and he grabbed her underwear from behind. This action caused her underwear to rip and made her fall forward onto his mattress. She testified that he then pinned her down on her back on the floor with one of his hands on her throat and one on her face, with his legs around her. She thought he was going to kill her, and she panicked. She wanted to get away. She again tried to move towards the door. He continued to grab at her underwear and she repeatedly said to him “stop”, “please, please, please stop.” She then began to scream for help, “as loud as [she] possibly could.” The complainant testified, “[a]s soon as I started screaming, that’s when he started to strangle me.”

[18] While the complainant could not remember whether the appellant penetrated her, she believed he attempted to do so as he was trying to force his groin into hers. She was not aware whether he had put the condom on.

[19] He then began repeating “I love you” over and over. She responded by saying this back to him in an attempt to calm him down, and loosen his grip. This appeared to the complainant to have had the desired effect, as the appellant loosened his grip, at which point the complainant managed to get away.

[20] When the complainant tried to open the door she realized it was locked and in a panic, she bruised her hand trying to pull it open. As she described it, she then “started to freak out.” She continued to scream for help and demanded to be let out of the room. She began to look around the room for anything she could use as a weapon. She saw her own belt, with a heavy buckle, and began to try to hit the appellant with it. She believed the appellant appeared shocked or scared and he then started to unlock the door. She indicated that he said, “I’m trying to open the door,” and once he got it open, he yelled at her to get out. She attempted to gather some of her clothing, including her shirt and her ripped underwear and ran out of the room.

[21] As she ran from the room, she began hyperventilating. She saw the appellant’s mother who gestured to her to be quiet and led her to her shoes at the door of the apartment. During this time, the complainant was repeating, “Please help me. Please help me.”

[22] The complainant then ran out of the building and down the street screaming for help. In a hysterical state, she came upon a snow plow operator. He called the police. When the police arrived, they found the complainant lying, still hysterical, in a snow bank. By this time, it was about 5:00 a.m. An officer assisted her into his police cruiser and eventually calmed her down so that she could recount what happened. The complainant directed the officer back to the appellant’s building. She became hysterical again when the appellant came out onto the street, where he was arrested by the police. A police officer then took the complainant to the hospital.

[23] From photographs taken by the police, the complainant identified at trial physical injuries she sustained during this incident, including some bleeding from her right earlobe where a large earring had been removed during the incident. In addition, she suffered some bruising on her neck, shoulders, arms, wrist, knuckles, and shin, and a scratch on her breast. She identified bruising on her palm from trying to open the locked door. She also described bruising around her mouth that did not show up until shortly after the incident. This particular injury prevented her from going to work for two days. Finally, she testified that as a result of this incident she also suffered from PTSD and was counselled for three months at a women’s shelter, as well as by a doctor. She indicated that the symptoms of the PTSD included nightmares, insomnia, fear of men, anxiety, panic attacks, dissociation with her own body, shortness of breath, an inability to speak and feelings of victimization.

(b) The Trial Proceeding

[24] The appellant elected to have a preliminary inquiry and a trial composed of a judge and jury.

[25] At the end of the complainant’s testimony in-chief, the Crown elicited evidence from her that she had been sexually assaulted previously by her then boyfriend, by coincidence exactly one year earlier, on January 11, 2008. This incident was the subject of a successful s. 276 application in which the defence was granted leave to cross-examine the complainant on this prior sexual activity, but only with respect to “the issue of the state of mind of the complainant and any possible confusion or mixing of the two events.”

[26] At the conclusion of the Crown’s case, the defence brought a motion for a directed verdict with respect to the bodily harm element of the sexual assault causing bodily harm charge. Defence counsel submitted at trial that the bruising depicted and described by the complainant was not beyond the transient or trifling standard required by the definition of bodily harm in the Criminal Code, R.S.C. 1985, c. C-46. The defence acknowledged that bodily harm can include psychological harm. While the complainant indicated that she suffered from PTSD and was counselled for that condition over a period of time, the defence submitted that the mere fact that one attends counselling is not evidence that one has suffered psychological harm.

[27] The trial judge dismissed this application to withdraw the element of bodily harm from the jury. The trial judge listed the physical injuries, and the complainant’s self-reported psychological symptoms of PTSD. He noted that only one of the alleged harms suffered must be more than transient or trifling, and need not necessarily be supported by medical evidence. On this basis, the trial judge concluded that there was evidence, if believed, that could result in a finding of guilt on the charge of sexual assault causing bodily harm.

[28] The appellant elected not to call any evidence.

[29] In pre-charge submissions, defence counsel at trial argued that the jury instructions and the written decision tree that was to be provided to the jury should include instructions on the lack of consent that is required for a conviction on sexual assault causing bodily harm, just as required in sexual assault simpliciter. Counsel made these submissions with reference to this court’s decision in Quashie. Counsel argued that the jury should be instructed on the basis of the standard instructions for sexual assault, and simply add to that an instruction on bodily harm.

[30] The Crown responded with reference to R. v. Jobidon, 1991 77 (SCC), [1991] 2 S.C.R. 714, and argued that the law is clear that a person cannot consent to the infliction of bodily harm. The Crown argued that, in any event, there was evidence that the appellant intended to cause bodily harm. Therefore, this case could be distinguished from Quashie because the intention to cause bodily harm was present. Moreover, while the decision tree that was to be given to the jury did not contain a question on consent, the proposed instructions to the jury made reference to the requirement that they be satisfied that the appellant had assaulted the complainant. This included an instruction on assault being a wilful application of force on the complainant against her will, which includes the concept of a lack of consent.

[31] The trial judge ruled that he would provide the jury with the decision tree from Watt’s Manual of Criminal Jury Instructions (Toronto: Thomson Carswell, 2005) which does not include a question requiring a finding of a lack of consent on the charge of sexual assault causing bodily harm.[^1]

[32] In his charge to the jury, the trial judge explained the essential elements of sexual assault causing bodily harm:

Now, let me give you an explanation of what the relevant law is with respect to the charge of sexual assault causing bodily harm. The essentials are as follows: for you to find Mr. Zhao guilty of sexual assault causing bodily harm, Crown counsel must prove each of these essential elements, and counsel must prove it beyond a reasonable doubt. First, that Mr. Zhao intentionally applied force to [the complainant]; so the intentional application of force. Secondly, that the force that Mr. Zhao intentionally applied caused bodily harm to [the complainant]. Thirdly, that the force that Mr. Zhao intentionally applied took place in the circumstances of a sexual nature.

[33] The trial judge also instructed the jury on the definition of assault, as it is set out in the Criminal Code, which includes the element of the absence of consent:

A person commits an assault when without the consent of another person he applies force intentionally to that person directly or indirectly.

[34] Again, the trial judge mentioned indirectly the element of consent when he said:

The force applied may be violent or it may be gentle. To be an assault, however, Mr. Zhao must apply the force intentionally and against [the complainant]’s will. [Emphasis added.]

[35] The trial judge then proceeded to instruct the jury at greater length in relation to the three elements: intentional application of force, causation of bodily harm and the circumstances of a sexual nature. During this line of instruction, the trial judge did not direct the jury on the need to decide whether the Crown had proven a lack of consent beyond a reasonable doubt.

[36] By contrast, later in his instructions, when dealing with the included offences of sexual assault or assault, the trial judge began his instructions in the following terms:

I told you there were included offences, so the offence about which we are talking now, sexual assault causing bodily harm; but there [are] two included offences. If you find the accused not guilty on that charge, nevertheless you could still find him guilty on assault or sexual assault.

Now with regard to the charges of assault, or sexual assault, I must deal with the defence, which is consent. The position of the accused is that the assaults, or sexual assaults, were consensual in nature. Now, let me explain the law with respect to consent.

[37] The trial judge then gave further instructions on the issue of consent. It is important to note that the trial judge did receive submissions and made a pre-charge ruling that there was an air of reality on the issue of consent and apprehended consent, and that he would be giving instruction on those issues to the jury. It is also important to note, for the purpose of the legal analysis in this case, that the trial judge instructed on the foreseeability of harm in the following terms:

Now, Crown counsel does not have to prove that Mr. Zhao meant to cause bodily harm of this or any kind to [the complainant] by the force that he allegedly intentionally applied. What Crown counsel has to prove, however, is that a reasonable person in the circumstances would inevitably realize that the force he was applying would put [the complainant] at risk of suffering some kind of bodily harm, although not necessarily serious bodily harm or the precise kind of harm that she may have suffered here.

[38] The trial judge made no mention of consent as an available defence until he began instructing the jury on sexual assault simpliciter.

[39] Without being instructed to consider whether the appellant subjectively intended to cause her bodily harm, the jury returned verdicts of guilty to the charge of sexual assault causing bodily harm.

[40] Finally, albeit in his sentencing decision, the trial judge found in this case:

The physical injuries were not severe on any scale of severity. The psychological injuries are, of course, very, very serious.

This is not a situation in which the convicted person, Mr. Zhao, employed gratuitous cruelty or degradation towards the victim.

(c) Positions of the Parties

[41] Essentially, the appellant argued only one issue in his conviction appeal: that the trial judge erred in failing to give the jury instructions with respect to consent on the charge of sexual assault causing bodily harm. He argues that while the trial judge relied upon Watt’s Manual of Criminal Jury Instructions, those instructions were based on this court’s previous decision in R. v. Welch (1995), 1995 282 (ON CA), 25 O.R. (3d) 665, which presumes that consent is not available as a defence to sexual assault causing bodily harm. Instead, the appellant submits the trial judge ought to have given instructions in accordance with this court’s more recent decisions in Quashie and R. v. McDonald, 2012 ONCA 379, 95 C.R. (6th) 210, both of which have clarified and qualified the relevance of consent in both sexual assault causing bodily harm and assault, respectively.

[42] The appellant submits that these authorities stand for the proposition that consent is available as a defence in charges of assault causing bodily harm and sexual assault causing bodily harm, unless the Crown proves beyond a reasonable doubt that:

(i) the accused subjectively intended to cause bodily harm; and

(ii) the accused caused bodily harm.

[43] The respondent takes the position that the trial judge did not err in his instructions to the jury and that the appeal against conviction should be dismissed.

[44] The respondent argues that the trial judge’s instructions to the jury with respect to the intentional application of force actually required the jury to find as a fact that the complainant had not consented to the appellant’s intentional application of force.

[45] The respondent concedes that the trial judge in this case did not instruct the jury in accordance with Quashie. However, the trial judge did provide the jury with the definition of assault, which included the absence of consent. Moreover, when describing the intentional application of force, the trial judge indicated that it must be against the will of the complainant, implicitly requiring them to find that it was without consent. In addition, the respondent also argued that, in this case, the element of consent was not explicitly removed from the instructions. Accordingly, this distinguishes the present appeal from other cases overturned on that basis. Finally, even if this court rejects these submissions, the respondent asks this court to consider applying the curative proviso in this case.

C. Legal Analysis

(a) Relevant Statutory Provisions

[46] In section 265(1) of the Criminal Code, assault is defined in the following terms:

(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;

[47] From a plain reading of subsection 265(2), there is little doubt that Parliament originally intended all aspects of assault defined in s. 265, to apply to all forms of assault, including assault causing bodily harm:

(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

(b) Jurisprudence

[48] I will now review the relevant case law, to show how courts have interpreted and applied the role of consent as an element to the charges of assault causing bodily harm and sexual assault causing bodily harm.

(i) 1991: The Supreme Court of Canada’s Decision in Jobidon

[49] The Supreme Court of Canada’s decision in Jobidonis the leading authority on the vitiation of consent in circumstances of an assault causing bodily harm. In Jobidon, the Supreme Court drew inspiration from an earlier holding made by the English Court of Appeal in Attorney General’s Reference (No. 6 of 1980), [1981] 2 All E.R. 1057 (C.A.).

[50] At p. 1059, the English Court of Appeal held that:

[I]t is not in the public interest that people should try to cause or should cause each other actual bodily harm for no good reason. Minor struggles are another matter. So, in our judgment, it is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended and/or caused. This means that most fights will be unlawful regardless of consent. [Emphasis added.]

[51] However, in Jobidon, the Supreme Court chose to differ slightly from the approach taken by the English Court of Appeal in Attorney General’s Reference (No. 6 of 1980). Jobidon and the victim, Haggart, engaged in a fight that began in a bar and continued in a parking lot. Both men had agreed to fight one another. Indeed, the trial judge found that neither departed intentionally from the kind of fight to which they had consented. During the fight, Jobidon hit Haggart in the head, rendering him unconscious and continued to hit him four or six more times before realizing what had happened. Haggart fell into a coma and died of severe contusions to the head due to one or more of these blows.

[52] Jobidon was acquitted of the charge of manslaughter through the offence of assault, because the trial judge found that Haggart’s consent acted as a defence. This court, sitting as a five-judge panel, unanimously overturned the acquittal and substituted a guilty verdict based on their conclusion that limits existed with respect to the availability of consent in the context of a consensual fight.

[53] The Supreme Court dismissed the appeal and held that there is a common law limitation on the defence of consent in the context of consensual fights where bodily harm is bothintended and caused. Gonthier J., writing for the majority, conducted a meticulous review of the English and Canadian case law on the subject. He concluded that this limitation qualified s. 265(1)(a) of the Criminal Code, which states that an assault occurs when, “without the consent of another person, he applies force intentionally to that other person, directly or indirectly.” Specifically, he found that the Criminal Code did not oust the public policy-based nullification of the defence of consent in the fight cases.

[54] At pp. 720 and 725, Justice Gonthier articulated the principal legal issue:

[W]hether absence of consent is a material element which must be proved by the Crown in all cases of assault or whether there are common law limitations which restrict or negate the legal effectiveness of consent in certain types of cases.

[55] At p. 746, Gonthier J. observed that “[l]imits on consent to assault have long been recognized by English and Canadian courts.” Justice Gonthier found at p. 761 that, “the scale tips rather heavily against the validity of a person's consent to the infliction of bodily injury in a fight.”

[56] However, at p. 762, Gonthier J. listed a number of policy considerations that serve to militate against validating a person’s consent to bodily harm occasioned in a fight. Among these, Gonthier J. highlighted the social uselessness of fights, the tendency of fights to lead to larger breaches of the public peace, the utility in deterring fights, and from a moral point of view, the sanctity of the human body.

[57] Gonthier J. elaborated at p. 744 that “policy-based limits are almost always the product of a balancing of individual autonomy (the freedom to choose to have force intentionally applied to oneself) and some larger societal interest. That balancing may be better performed in the light of actual situations, rather than in the abstract”. At pp. 763 and 764, Gonthier J. stated that the social uselessness of fights was the foremost policy consideration in this context. He was concerned that consensual fights could lead to “larger brawls and to serious breaches of the public peace”, and determined that, even apart from considerations of deterrence, that it would be “most unseemly from a moral point of view that the law would countenance, much less provide a backhanded sanction” to the type of fight at the heart of the case before him.

[58] The common law and these policy considerations led Gonthier J. to conclude, at p. 766, that:

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 is the extent of the limit which the common law requires in the factual circumstances of this appeal. [Emphasis in original.]

[59] As is often the case with landmark cases, Jobidonhas been referenced for a broad proposition: one cannot consent to bodily harm. However, in Jobidon, Gonthier J. emphasized, at p. 766, that:

[I]t must not be thought that by giving the green light to the common law, and a red light to consent to 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.

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.

[60] At p. 767, Gonthier J. listed several examples of activities where consent would not be vitiated due to the significant social value of those activities, such as sporting activities, games, medical treatment and surgical interventions, stuntmen creating a socially valuable cultural product, and tattoos. He did not address whether policy considerations would operate to vitiate consent in the context of sexual activity that causes bodily harm.

[61] The most salient point in Jobidon for the purpose of the present appeal is that it left unanswered the question of what was meant by the “intent” aspect of “bodily harm intended and caused”. Did the “intent to cause bodily harm” herald a shift towards a subjective test or was objective foresight still required? At p. 766, Gonthier J. was unclear on this front: “[t]he 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).

[62] The bodily harm contemplated by the test under s. 265 is the same as that defined at s. 267(2) of the Criminal Code.

[63] Since 1991, this court has addressed the application of Jobidon to sexual assault causing bodily harm in four judgments. The first of these four cases was Welch, which developed the test that the trial judge applied in the case at bar.

(ii) 1995: This Court’s Decision in Welch

[64] In Welch, this court first dealt with the issue of whether the principle in Jobidon would apply in the case of a sexual assault causing bodily harm. In other words, the court considered whether the consent of a complainant might constitute a valid defence to the offence of sexual assault causing bodily harm.

[65] In Welch, the complainant testified that the appellant had tied her to a bed, beat her with a belt on her breasts and buttocks. The appellant then sexually assaulted her by penetrating her with his penis and inserting his finger into her vagina and an object into her rectum. The complainant testified that the appellant did all this without her consent. The appellant admitted much of this conduct but testified that he had done so because she asked him and even encouraged him to do so. The trial judge ruled, in accordance with Jobidon, that consent was not a defence to the offence of sexual assault causing bodily harm and charged the jury accordingly. In the result, the jury found the appellant guilty.

[66] It is evident that the trial judge in Welchconsidered the “intent” element of the offence to be defined objectively and not subjectively. In his charge to the jury he stated: “Because it is not in the public’s interest that people should cause each other bodily harm for no good reason, consent is not an answer to a charge of sexual assault causing bodily harm, when actual bodily harm is objectively foreseeable and caused” (emphasis added).

[67] Griffiths J.A. noted, at para. 19, that in doing so, the trial judge:

[W]as quite correctly following the directive of the Supreme Court of Canada in R. v. DeSousa, 1992 80 (SCC), [1992] 2 S.C.R. 944 at p. 961 … where the court held that to render the accused liable for assault causing bodily harm, the conduct of the accused, when viewed objectively, must be such that it would be likely to cause bodily harm to the victim.

[68] Because the accused had admitted to most of the conduct, Griffiths J.A. observed that “it is clear that he applied force to her under such circumstances that, objectively viewed, would inevitably cause her bodily harm” (emphasis added). Griffiths J.A. therefore dismissed the appeal and agreed that consent was vitiated in accordance with Jobidon.

[69] In Welch, Griffiths J.A. affirmed the trial judge’s removal of the defence of consent in respect of the charge of sexual assault causing bodily harm in the context of sado-masochism and deliberate infliction of pain. In my view, however, he did not intend to hold that consent should be automatically vitiated in all cases of sexual assault causing bodily harm.

[70] Griffiths J.A. undertook a detailed examination of the public policy rationales articulated in Jobidonand in sexual assault cases across England, the United States and Canada, in an attempt to grapple with the question of whether any form of sexual activity causing bodily harm could be socially acceptable. At para. 87, Griffiths J.A. summarized Jobidon’s application:

[T]he 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. Specifically, the majority in Jobidon recognized that consent may be a defence to certain activities such as rough sporting activities, medical treatment, social interventions, and "daredevil activities" performed by stuntmen, "in the creation of a socially liable cultural product". Acts of sexual violence, however, were conspicuously not included among these exceptions. [Emphasis added.]

[71] At paras. 55-66, Griffiths J.A. reviewed the House of Lords decision in R. v. Brown,[1993] 2 All E.R. 75. In that case, a group of male homosexual sado-masochists were arrested when police came across a video of the group’s private and consensual activities. The men relied only on the defence of consent. The House of Lords concluded that the extent to which consent may be a defence to physical violence should be determined according to public policy. The Law Lords were not prepared to make an exception in favour of sado-masochistic conduct as it was not consistent with the public interest. At para. 88 of Welch, Griffiths J.A. applied the same reasoning to the appeal before him:

While the circumstances of this case are not as distasteful as the facts in the House of Lords decision of Brown, they are nonetheless disturbing. The sadistic sexual activity here involved bondage (the tying of the victim's hands and feet) and the intentional infliction of injury to the body and rectum of the complainant. The consent of the complainant, assuming it was given, cannot detract from the inherently degrading and dehumanizing nature of the conduct. [Emphasis added.]

[72] At para. 88, Griffiths J.A. concluded that the appropriate public policy is that societal interests and individual autonomy should be balanced in cases of sexual assault causing bodily harm in the following manner:

Although 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, then the personal interest of the individuals involved must yield to the more compelling societal interests which are challenged by such behaviour. [Emphasis added.]

[73] The appellant argues that this statement limits Welch’s application to fact scenarios involving sadistic sexual activity and the intentional infliction of injury. However, I am mindful of Griffith J.A.’s comments approving the trial judge’s use of the DeSousa objective test for bodily harm and the trial judge’s decision to remove the defence of consent from sexual assault causing bodily harm on a finding of what was then unparticularized bodily harm.

[74] The appellant suggests that Welch imposes a high standard, including elements of inherently degrading and dehumanizing conduct or activity that involves deliberate infliction of pain, to vitiate consent and remove it as a possible defence to sexual assault causing bodily harm. I am not persuaded that this is the standard required to vitiate consent to a sexual assault causing bodily harm. I reach this conclusion because Griffiths J.A. in Welch was focused specifically on sado-masochistic conduct and made no comments about other sexualized conduct more generally.

[75] In the present case there is no element of sado-masochistic conduct. The issue is chiefly the credibility and reliability of the complainant’s description of what happened. The jury may or may not have harboured a reasonable doubt as to the complainant’s consent. I note again that the trial judge found that there was an air of reality to consent or apprehended consent in this case. He charged the jury accordingly. However, he only charged the jury on the defences with respect to the included offences of assault or sexual assault. The appellant’s main complaint is that he was deprived of similar instructions with respect to the charge of sexual assault causing bodily harm.

[76] At this point I also wish to address the respondent’s position with respect to Welch. The respondent submits that Welch is a seminal case dealing with the role of consent in sexual assault causing bodily harm cases and that a general rule can, in fact, be derived from the reasons of Griffiths J.A. The respondent argues that para. 88, in particular, does not contain the binding authority in sexual assault causing bodily harm cases. Rather, this concluding paragraph merely contains an articulation of the extent to which the case exceeds the threshold for the vitiation of consent in sexual assault causing bodily harm cases. The respondent argues that the threshold at which the issue of consent is vitiated was established by this court in Welch at an earlier point in Griffiths J.A.’s reasons.

[77] At paras. 17 and 18 of Welch, Griffiths J.A. described the trial judge’s ruling and subsequent instructions to the jury with respect to his explicit removal of lack of consent with respect to the charge of sexual assault causing bodily harm. The respondent submitted that para. 19 was an approval of this approach:

When the trial judge spoke of “causing bodily harm when actual bodily harm is objectively foreseeable and caused”, he was quite correctly following the directive of the Supreme Court of Canada in R. v. DeSousa, 1992 80 (SCC), [1992] 2 S.C.R. 944 at p. 961, 76 C.C.C. (3d) 124 at p. 137, where the court held that to render the accused liable for assault causing bodily harm, the conduct of the accused, when viewed objectively, must be such that it would be likely to cause bodily harm to the victim. In this case, regardless of whether one accepts the version of events given by the appellant or the complainant, it is clear that he applied force to her under such circumstances that, objectively viewed, would inevitably cause her bodily harm.

[78] Respectfully, I do not read para. 19 as an approval of the trial judge’s removal of consent as a defence. On the contrary, when viewed in the context of the next two paragraphs and the remainder of the decision, it is clear that Justice Griffiths conducted a full analysis of the central issue of the decision, which he articulated at para. 21 that “[t]he question then of whether consent to the conduct could be a valid defence to a sexual assault causing bodily harm became the central issue (emphasis added)”.

[79] Ultimately, much of the analysis in Welch is focused on the sado-masochistic nature of the circumstances of that case. I am neither persuaded that the authorities cited by the appellant nor the conclusions reached in Welch are particularly helpful to establish a generally applicable standard or threshold by which consent is vitiated in sexual assault causing bodily harm cases. Furthermore, the social utility of intimate sexual relationships is significantly different from that of consensual bar fights, as such, the underlying policy reasons for the ruling in Jobidon cannot be generally applicable in a sexual context as suggested by the ruling in Welch.

(iii) 1998 and 2001: This Court’s Subsequent Application of Welch

[80] This court applied Welch in two other similar cases. From these two cases it appears the court was of the view that consent remains a defence to a charge of sexual assault causing bodily harm unless the accused has subjective intent to cause bodily harm to the complainant. The first of these two cases is the case of R. v. Amos, 1998 2814 (ON CA), [1998] O.J. No. 3047 (C.A.).

[81] In Amos, the accused was convicted of sexual assault causing bodily harm due to injuries that were caused as a result of anal intercourse. The trial judge concluded that, due to the resulting bodily harm, consent was irrelevant in this case. In a brief endorsement, this court found that the trial judge erred in concluding that consent was irrelevant. This court held, at para. 3, that the policy considerations informing Jobidon and Welch did not apply to this case, as anal intercourse did not constitute socially unacceptable conduct and therefore did not outweigh individual freedom:

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. [Emphasis added.]

[82] Therefore, given the trial judge’s finding that the Crown had failed to prove lack of consent beyond a reasonable doubt, this court set aside the trial judge’s conviction and acquitted the accused.

[83] Again, in the case of R. v. Robinson (2001), 2001 24059 (ON CA), 53 O.R. (3d) 448, Rosenberg J.A. addressed the role of consent in a case of sexual assault causing bodily harm. This case concerned three incidents of sexual violence. The appellant had admitted that a few of the sexual acts had occurred, but argued that they were consensual. These acts included gagging the complainant and tying her up, forced anal intercourse, penetrating her vagina with a cucumber, and most notably for the charge of sexual assault causing bodily harm, kissing her with such force that his goatee caused a circular abrasion leaving her skin raw and oozing.

[84] The trial judge directed the jury that if they found that the appellant had caused bodily harm, as defined in s. 267(2), then consent was no defence. Rosenberg J.A. examined Welch, and on that basis, made one conclusion and one recommendation. At para. 62, Rosenberg J.A. concluded that the trial judge was correct in his instruction to the jury. However, he recommended that it would have been better if the trial judge had qualified his instruction in the following manner:

In view of the decision in Welch, I am of the view that the trial judge was right to instruct the jury that consent could not be a defence to certain forms of bodily harm. However, it would have been preferable had the trial judge made it clear that consent was no defence only if the appellant deliberately inflicted pain upon the complainant causing bodily harm as he had defined it. [Emphasis added.]

[85] Therefore, apart from brief statements made by this court in Amosand Robinson, the availability of consent as a defence in sexual assault causing bodily harm was not set out with great precision. The test as articulated in the trial judge’s charge posited that consent was vitiated if an accused applied force that could be reasonably apprehended to cause bodily harm and caused bodily harm in a sexual context. This is an objective test. In my view, the jurisprudence has signalled a shift toward a subjective standard to vitiate consent in the event bodily harm is occasioned. That is, consent will be vitiated only where the accused deliberately inflicted bodily harm or pain on the complainant.

(iv) 2005: The Supreme Court of Canada’s Decision in Paice

[86] In 2005, the Supreme Court of Canada addressed the matter of consent as a defence to an assault causing bodily harm in R. v. Paice, 2005 SCC 22, [2005] 1 S.C.R. 339. In doing so, the Supreme Court clarified its ruling in Jobidon.

[87] The facts of Paice were similar to those in Jobidon. The incident began when the deceased challenged the accused to a fight. The two men went outside, exchanged threats and the deceased pushed the accused once or twice. The accused hit the deceased hard on the jaw, the deceased fell backwards and hit his head on the pavement, and the accused struck the deceased two more times. Subsequently, the deceased died from his injuries. Just as in Jobidon, Paice was accused of manslaughter through the unlawful act of assault. However, the trial judge misapprehended the test in Jobidon holding that the defence of consent was not available if bodily harm were either intended or caused.

[88] Charron J. clarified, at para. 12, that bodily harm must both be intended and caused in order for consent to be vitiated. She held that, otherwise, the result would be absurd. It appears from Charron J.’s language that the element of the test relating to the intent to cause bodily harm should be assessed subjectively rather than objectively:

Indeed, if the test were otherwise and a conviction possible if bodily harm were either intended or caused, the result would be to criminalize numerous activities that were never intended by Parliament to come within the ambit of the assault provisions and would go beyond the policy considerations identified in Jobidon. For example, if causation alone sufficed, a person who agreed to engage in a playful wrestling match with another could end up being criminally responsible if, even by accident, he caused serious bodily harm to the other during the course of play. This Court in Jobidon was very mindful not to overextend the application of the principle to like situations. Conversely, the intention to cause serious bodily harm alone cannot serve to negate the other person's consent to the application of force if, in fact, no bodily harm is caused. The activity, a consensual application of force that causes no serious bodily harm, would fall within the scope of the consent and not in any way fall within the Code definition of assault. Yet, it would be criminalized by judicial fiat. In my view, this would constitute an unwarranted extension of the principle in Jobidon. [Emphasis added.]

[89] Charron J.’s outline of when consent is and is not available as a defence, at para. 18, is illustrative:

Two errors emerge from the trial judge's analysis on self-defence. First, his conclusion that Mr. Bauck's pushing of Mr. Paice was an unlawful assault because it was "without the consent of the accused" was based on his legal conclusion that neither party could rely on the consent of the other because they each had entered the fight with the intention to cause serious bodily harm to the other. This conclusion stems from the trial judge's misinterpretation of the principle in Jobidon. Jobidon requires serious harm both intended and caused for consent to be vitiated. Whether or not Mr. Bauck intended to cause serious bodily harm to Mr. Paice, he did not in fact do so. Had the fight been interrupted after the initial push, Mr. Bauck would have been entitled to rely on Mr. Paice's consent, assuming he did in fact consent, in answer to a charge of assault. Likewise, had Mr. Paice's reaction to the push not resulted in any serious bodily harm, he would not have been guilty of assault. As technical as it may appear, s. 34(1), by its terms, requires this step-by-step analysis of what transpired in the parking lot. [Emphasis added.]

[90] However, Paice still did not explicitly state whether the element of “intent” in the context of vitiating the defence of consent should be assessed on a subjective or an objective basis. The Supreme Court has not ruled further on this matter. I must therefore turn to Quashie, the leading authority on the role of consent in sexual assault causing bodily harm in Ontario.

(v) 2005: This Court’s Decision in Quashie

[91] This court’s decision in Quashie provided a different interpretation from Welch. Gillese J.A., writing for the court, propounded a decision tree for use in jury trials where an accused is charged with sexual assault causing bodily harm.

[92] Quashie involved two incidents occurring within two days of one another. The complainant was a 19-year-old university student who adhered to traditional Nigerian cultural values and was a virgin at the time of the first assault. The accused agreed that the two encounters had occurred but argued they were both consensual. In the first incident, the accused engineered his way into the complainant’s dormitory at the beginning of a date, held her down on the bed and attempted to vaginally penetrate her. The second incident occurred under the pretext of apologizing for the first incident. At his apartment, he again pinned her on the bed and forcefully penetrated her vagina, causing her a great deal of pain. He had used a condom but it had broken during the forced penetration. Subsequently, he informed her that he was HIV-positive. She suffered a great deal of psychological harm from this episode. A friend took her to seek medical treatment, where it was determined she had suffered several injuries in her labia, hymen and cervix. She also suffered side effects from the HIV prophylactic medication.

[93] In Quashie, the trial judge charged the jury that it need not consider the issue of consent with respect to aggravated assault or sexual assault causing bodily harm, as long as the Crown proved that her injuries were of the requisite degree of harm. Quashie was convicted by a jury of sexual assault for the first incident, and of sexual assault causing bodily harm for the second incident. On appeal, Quashie argued that the trial judge erred in removing the defence of consent from the jury in respect of those offences.

[94] Gillese J.A. noted that the trial judge in this case had made the same mistake as the judge in Paice. That is, he had required that the jury find that bodily harm was caused, but had not instructed them that they must also find that the resulting harm was intended. At para. 57, Gillese J.A. held that

[I]t 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. [Emphasis added.]

[95] Gillese J.A.’s review of the preceding case law examined what was meant by the “intent to cause bodily harm” in the context of sexual assault causing bodily harm. Her analysis suggests strongly that intent should be construed subjectively. At para. 53, she took guidance from Welch that public policy considerations “vitiate the defence of consent to a charge of sexual assault causing bodily harm in circumstances involving sado-masochism and the deliberate infliction of pain.” At para. 54, she indicated that Amos and Robinson confirmed the rule that consent was “not a defence to a charge of sexual assault causing bodily harm in circumstances where the accused has deliberately inflicted pain or injury upon a person that gave rise to bodily harm” (emphasis added). Gillese J.A. pointed to Amos, where there was no suggestion that the appellant had deliberately inflicted pain or injury in the course of causing bodily harm, and where this court had held that consent therefore remained an essential element of the offence in that case.

[96] As mentioned earlier in these reasons, the appellant’s main argument is that the trial judge did not instruct the jury in accordance with this court’s decision in Quashie.

[97] As also mentioned, the respondent concedes that the trial judge did not instruct the jury in accordance with this decision. However, the Crown argues that Welch is the “seminal” case dealing with the issue of consent in sexual assault causing bodily harm cases, whereas the Quashie decision should be read as applying to the particular facts and circumstances of the case, which were distinct from the present case.

[98] I disagree. In light of how the law has developed, it is doubtful that Welchremains good law even in cases involving sado-masochism. In my view, Quashie is a more typical or neutral sexual assault causing bodily harm case, remarkably similar in many ways to the facts in the present case, except perhaps that it is marginally less forceful. Other distinctions between Quashie and the present case, such as the influence of alcohol or the previous sexual assault reported by the complainant in the present case, are of no import to the issue in this appeal.

(vi) 2012: This Court’s Decision in McDonald

[99] Although it does not influence my reasons, I find further support for the result I reach in this case from the recent decision of this court in McDonaldwhich was decided after the jury rendered its verdict in the appellant’s trial.

[100] While McDonald is a case that involved a charge of aggravated assault, similar principles apply.

[101] In the McDonald case, the accused, McDonald had been in line at a busy Subway restaurant for 30 minutes at 2 a.m. Gibson, the victim, jumped the line. McDonald told Gibson to move back, Gibson ignored McDonald, and McDonald put his hand on Gibson’s shoulder. Gibson grabbed McDonald’s hand and refused to let go. McDonald managed to get Gibson into a chokehold position while Gibson held onto his waist. As Gibson began to let go of McDonald, McDonald released his grip. Gibson fell backwards and hit his head on the tile floor. He sustained a brain injury and fractured skull that caused him to fall into a coma for several days and sustain brain damage from which he did not recover.

[102] The trial judge charged the jury that consent was not available as a defence on the offence of aggravated assault. In fact, he specifically included consent within the ‘objective foresight’ element of aggravated assault, instructing that if the jury was satisfied beyond a reasonable doubt that a reasonable person would realize that the force McDonald applied put Gibson at risk of bodily harm, then consent was not available as a defence. McDonald was then convicted of aggravated assault.

[103] He appealed on the basis that the offence of aggravated assault and the required elements for vitiating consent are different, and therefore consent may be available as a defence in some cases of aggravated assault. This court agreed, and held at para. 28:

[F]ollowing 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. [Emphasis added.]

[104] The Supreme Court of Canada subsequently dismissed leave to appeal from this court’s decision in McDonald.

(c) The Proper Jury Instruction for Sexual Assault Causing Bodily Harm

[105] Applying the above principles to the facts of this case, I conclude that the trial judge did not instruct the jury correctly.

[106] Rather, the trial judge should have provided the instruction outlined in Quashie, as the reasons of Gillese J.A. contain this court’s guidance for the role of consent in sexual assault causing bodily harm. At para. 58, she stated:

First, the jury had to be satisfied beyond a reasonable doubt that the appellant assaulted the complainant. Second, the jury had to be satisfied that the assault took place in circumstances of a sexual nature such as to violate the complainant's sexual integrity. Third, the jury had to be satisfied that the sexual assault caused bodily harm. Fourth, the jury had to be satisfied that the appellant intended to inflict bodily harm upon the complainant. If the jury found that the appellant had intended to inflict bodily harm upon the complainant and that the complainant suffered bodily harm, the defence of consent was irrelevant. However, if the jury was not satisfied beyond a reasonable doubt that the appellant intended to, and did, cause the complainant bodily harm, then it was necessary for the jury to decide whether they were satisfied beyond a reasonable doubt that the complainant had not consented. [Emphasis added.]

[107] I do recognize that the articulation in the above guidance uses the term "assault" in the first three steps. In my view, Gillese J.A.’s decision tree must be read as a whole. That is, the term "assault", viewed in context, must be taken to mean nothing more than an intentional application of force. It cannot logically mean absence of consent, given the nature of the other steps to be followed. To suggest otherwise is to misconstrue what Gillese J.A. intended. With this clarification, the test can be broken down as follows:

1. The jury must be satisfied beyond a reasonable doubt that the accused intentionally applied force to the complainant.

2. The jury must be satisfied beyond a reasonable doubt that the intentional application of force to the complainant took place in circumstances of a sexual nature such as to violate the complainant's sexual integrity.

3. The jury must be satisfied beyond a reasonable doubt that the intentional application of force in circumstances of a sexual nature caused bodily harm.

4. If in addition to the above three criteria, the jury is satisfied beyond a reasonable doubt that the accused intended to inflict bodily harm upon the complainant (a subjective criterion), then consent is irrelevant, and the accused would be found guilty of sexual assault causing bodily harm.

5. If the jury is not satisfied beyond a reasonable doubt that the accused intended to cause the complainant bodily harm, then they would need to go on to consider whether they are satisfied beyond a reasonable doubt that the complainant did not consent to the intentional application of force by the accused.

[108] The test from Quashie, as clarified above, demonstrates that consent is not vitiated in all circumstances of sexual assault causing bodily harm, but instead only in those circumstances where bodily harm was intended and in fact caused. Where the accused did not intend to cause bodily harm, consent is available as a defence, if bodily harm is inadvertently caused.

[109] In addition, these instructions are only relevant when considering the offence of sexual assault causing bodily harm, and cannot be used as a pathway for the jury to make findings with respect to the included offences of either sexual assault simpliciter or assault simpliciter. In the event, based on the evidence, if sexual assault simpliciter and/or assault simpliciter are to be considered by the jury, then an appropriate charge for those offences would have to be given.

[110] As indicated earlier, in his charge to the jury, the trial judge made no mention of consent as an available defence until he began instructing the jury on sexual assault simpliciter. Based on the charge, the jury convicted the appellant of sexual assault causing bodily harm without being instructed to consider whether the appellant subjectively intended to cause the complainant bodily harm. Under the Quashietest, the consideration of whether the accused intended to inflict bodily harm is the third element in the jury instruction. Since the jury did not consider this element, this court would be unable to conclude that the Crown proved beyond a reasonable doubt that the appellant intended to inflict bodily harm to the complainant. Therefore, according to the Quashie test, with the third element in doubt, the defence of consent was still available.

[111] Finally, the respondent asked this court to consider the curative proviso in section 686(1)(b)(iii) of the Criminal Code. In the circumstances, I accept the appellant’s submission that the jury may have harboured reasonable doubt about the complainant’s consent or the appellant’s belief in consent. However, in accordance with the trial judge’s instructions, the jury was not given the opportunity it ought to have been given to acquit on that basis.

[112] With such discrepancies between the jury instructions, and without the appellant’s testimony, it is my view that a new trial should be ordered. In Quashie, Gillese J.A. found it appropriate to apply the curative proviso for two reasons. First, the jury had found him guilty of sexual assault simpliciter in respect of a previous incident. Accordingly, this indicated that the jury had found the complainant had not consented to the first act. Second, Quashie had admitted to the impugned conduct. These aspects are absent from the case before me.

[113] Furthermore, the trial judge did make a positive finding that there was an air of reality to the defence of consent with respect to assault and sexual assault simpliciter. On this basis, I cannot find that there was no substantial wrong or miscarriage of justice occasioned by the trial judge’s failure to instruct the jury on consent on the charge of sexual assault causing bodily harm in accordance with Quashie. I would therefore not apply the curative proviso.

D. disposition

[114] In the result, I would set aside the conviction and order a new trial. Although I would grant leave to appeal sentence, it is unnecessary to decide the sentence appeal.

Released: “JL” May 3, 2013

“M. Tulloch J.A.”

“I agree J.I. Laskin J.A.”

“I agree R.G. Juriansz J.A.”

[^1]: It would appear the authors of Watt’s Manual of Criminal Jury Instructions did not have the benefit of the decision in Quashie when the model instructions were prepared.