COURT FILE No.: BRAMPTON, FILE #11-Y438

Citation: R. v. W.(A.), 2012 ONCJ 472

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

A. W. (a Young Person)

Before Justice W.J. BLACKLOCK

Reasons for Judgment released on 12 JULY 2012

Ms. Fedak-Tarnopolsky ................................................................................................ for the Crown

Mr. Kovacs ................................................................................................ for the accused Mr. A. W.

BLACKLOCK, J.:

Introduction

[1] I have before me Mr. A. W. who is charged with the offence of assault causing bodily harm. In this case the burden rests upon the Crown to prove all the essential elements of the offence alleged beyond a reasonable doubt. In addition, the Crown must negative any defence available to the same standard once it is a live issue.

[2] Proof beyond a reasonable doubt involves a very high degree of certainty indeed. Criminal cases are not like civil cases, decided simply on the basis of what more likely than not occurred. I would, clearly, not have to actually believe the accused to be left in a state of reasonable doubt and even if I reject the defence evidence at every level that is not the end of the case. I must always bear in mind that my ultimate obligation is to step back, look at the record as a whole and consider all the frailties and weaknesses attaching to the various pieces of evidence that make it up. Having done so I must determine if the quality of the evidence is such that it makes out, to the very high level of certainty inherent in the notion of proof beyond a reasonable doubt, the elements of the offence charged.

[3] In this case I heard three witnesses. I find that the accused was far from a credible witness at any level in this case. His evidence contained several assertions which made little sense to me in the context of this record.

[4] I find it very odd that, given his description of the initial events in the hall, he would have chosen to go so far as to follow the complainant into his class and confront him there but then not having received any real satisfaction simply react as he suggested which was to in effect say “ok have a nice day”. I am also fully satisfied that he has also minimized his behaviour in this fight given the fact that the complainant and the third witness, who seems more connected to the accused than the complainant, both testified that the accused in the end grabbed the complainant with one hand and held him when he delivered the final blow.

[5] I also found A.W.’s evidence that he just happened to be at the recreation centre not knowing at all that there was potentially going to be a fight, out of step with common sense, given all the other evidence I had heard about how this fight came to pass.

[6] The complainant on the other hand generally struck me as a credible source of evidence as he testified. The sequence of events described, by him, had a logical flow to them. He conceded things that were not always in his interest. For example, he never tried to suggest that he was clear that it was the accused who struck the first blow. His evidence that he was hesitant to fight is believable having seen him and in light of the fact that the accused himself, agreed the complainant was not very good at it.

[7] I am specifically cautioning myself, however, that I must exercise great care in assessing the complainant’s evidence. He does have a motive to make himself out as, in effect, a victim in this case. He has lost his two front teeth. It is the kind of injury that may well involve expense. I am sure none of this would go down well with his parents, particularly, if he could be seen as the driving force in bringing this fight about. Furthermore, some features of his evidence as to the events leading up to the actual fight, are inconsistent with the third student I heard testify during this trial.

[8] Given my credibility findings and having considered the record as a whole I am satisfied that the following facts can be found.

The Facts

[9] There clearly was a dispute in existence between the accused and the complainant. It arose out of an incident in the hall in which the accused came into physical contact with one of the complainant’s friends. This ultimately led to a situation in which both the accused and the complainant were agreeable to meet for the potential purpose of a fight and ultimately to engage in one.

[10] On meeting, there was some discussion of avoiding the fight via an apology. The exact tone and content of that discussion I cannot describe with any precision. I accept that the complainant did not want to apologize feeling he should not have to. I cannot say that it was the accused who led the way to the fight scene after the decision was made by the complainant not to apologize. He may done so. It may have been the complainant leading.

[11] What is clear is that both young men entered the fight circle that was formed some distance off knowing what was about to occur was a full on fist fight. It is clear to me that, as is generally the character of these fights, both participants intended to punch one another as hard as they could until one of them was either physically unable to continue or had given up.

[12] This all occurred in a setting, to some degree, removed from school property while the friends of each of them stood in the circle that was formed. Neither of the accused could be described as a “boy”. They were both young men, both being at least 16 years of age. The accused may have been 17.

[13] They both positioned themselves to fight. Who threw the first punch or made the first move cannot be determined by me. The complainant clearly and relatively quickly got the worst of it. The photos show he had a bruise to his cheek, a cut to the top of his head and his two front teeth were smashed back from their normal position having been ripped out of the gums. The photos suggest that they remained attached following the fight by the smallest of margins.

[14] The complainant had to go immediately to a dentist. His teeth could not be replaced. They are currently supported by wires and further dental surgery will be required. They still periodically still cause the complainant pain. His injuries clearly, in my view, amount to bodily harm well beyond the transient or trifling.

[15] The accused’s version of this fight was that the complainant was lunging at him to punch him when the accused caught him with an upper cut. He denied holding the complainant in any way when this last blow was struck.

[16] I am satisfied beyond any reasonable doubt, however, that he did, in fact, do so. The complainant testified to having been held by the back of the neck and being shaken until he was off balance and as he was covering up he received the upper cut that caused the damage to his teeth. As mentioned earlier, the accused’s own friend supports the notion that the complainant was grabbed by the accused at the time he struck the blow causing the complainant to go to the ground.

[17] After the complainant went to the ground, the accused stood over him. When it was apparent that the complainant was injured or was not continuing the fight the accused backed off.

The Law

[18] The law in the area of consent street fights has had an interesting evolution in this Province. At one point, as a result of the decision of the Ontario Court of Appeal in Regina v Dix (1972), 1972 1328 (ON CA), 10 C.C.C. (2d) 324, it was thought that no assault was committed if two people got together and agreed to engage in a public fist fight as long as the nature of the force applied remained within the scope of the consent. The Court of Appeal of this Province, however, revisited this issue in the case of Regina v Jobidon 1988 7140 (ON CA), [1988] 30 O.A.C. 172, 45 C.C.C. (3d) 176, 67 C.R. (3d) 183, 7 W.C.B. (2d) 106

[19] That case involved a consent fist fight outside a bar leading to the death of one of the participants. Relying on Dix, supra, the trial judge, Mr. Justice Archie Campbell, acquitted the accused of manslaughter. On appeal to the Court of Appeal, the Dix, supra was reversed by the court. They did so largely on the basis of a consideration of a case from the English Court of Appeal called the Attorney General’s Reference (No. 6 of 1980) [1981] 2 All E.R. 1057. In that decision, the English Court of Appeal had held that the law had been, and still was, that the court would not recognize a consent given in such circumstances as being, in law, valid. The court concluded that it would be contrary to public policy to do so. The following question was put to the court in that Reference at p. 1058 of the report:

Where two persons fight (otherwise than in the course of sport) in a public place can it be a defence for one of those persons to a charge of assault arising out of the fight that the other consented to fight?

[20] The answer at page 1059 was put in the following terms:

… our judgment, is that it 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.

Nothing which we have said is intended to cast doubt on the accepted legality of properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions etc. These apparent exceptions can be justified as involving the exercise of a legal right, in the case of chastisement or correction, or as needed in the public interest, in the other cases.

[21] The Ontario Court of Appeal in Jobidon, supra, reversed Dix, ,supra, and held that, on the findings of fact made by the trial judge, the Crown was not obliged to prove an absence of consent. The court entered a finding of guilt for manslaughter and remitted the matter to Justice Campbell for sentence.

[22] On further appeal to the Supreme Court of Canada, by Mr Jobidon, the result reached by the Court of Appeal was upheld. See Regina v Jobidon 1991 77 (SCC), [1991] 2 S.C.R. 714

[23] There remained, however, certain ambiguities in this area. It was clear that the Supreme Court in its decision in Jobidon, supra, was enunciating a rule that governed in the context of consent fist fights or brawls involving grown adults. The court expressly left for another day what the shape of the public policy rule was regarding such fights when they involved two young persons.

[24] There was also some lack of uniformity that developed in lower courts regarding the rule as it applied to adults involved in such fights. This appears to have arisen because of two separate passages in the majority’s judgement.

[25] The first relevant passage can be found in para 104 of his decision. It reads as follows:

104 Attorney General's Reference makes it clear that a conviction of assault will not be barred if "bodily harm is intended and/or caused". Since this test is framed in the alternative, consent could be nullified even in situations where the assailant did not intend to cause the injured person bodily harm but did so inadvertently. In Canada, however, this very broad formulation cannot strictly apply, since the definition of assault in s. 265 is explicitly restricted to intentional application of force. Any test in our law which incorporated the English perspective would of necessity have to confine itself to bodily harm intended and caused.

[26] Here, Justice Gonthier writing for the majority, expressly indicated that the rule vitiating consent, as it exists in England “cannot be strictly applied” in Canada. The precise basis of his rationale remained, however, to some degree unclear. He does note immediately prior to this assertion that the English rule would capture fist fights in which actual bodily harm was caused inadvertently. He did not assert, however, that Charter values dictated his narrowing of the English rule. His only clearly expressed rationale appears to rest on a notion of symmetry. He asserts that, as the offence of assault in Canada involves the intentional application of force, the rule of public policy vitiating consent must “confine itself to bodily harm intended and caused”.

[27] With respect, it might be suggested that it is difficult to see that one necessarily follows from the other, as a matter of principle or necessity. There is no readily apparent reason in logic that the structure of a particular offence including the mens rea governing, part of, its statutory definition should necessarily control the shape of a policy rule vitiating consent. (See also Canadian Criminal Law 5th ed D Stuart pg 232 footnote 459 and authorities referred to therein which suggests that there may even remain be some room for debate in Canada about whether or not recklessness is in fact completely excluded as a mens rea at least in relation to all aspects of the full statutory definition of assault.)

[28] The second relevant passage can be found in the conclusion to his decision. Here, the test ultimately propounded did not, when read in isolation, clearly call for a finding of an intention to cause bodily harm beyond the trivial. The test ultimately crafted was arguably put in terms of no more than an intentional application of force and a causing of bodily harm beyond the trivial. The concluding part of the judgment reads as follows at paragraph 124:

124 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.

125 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. [Emphasis added]

[29] Subsequent decisions of the lower courts did arise following the decision of the Supreme Court in Jobidon, supra, in which findings of guilt were made without any express finding being made as to the accused’s intent to cause bodily harm. (See, for example, in that regard Regina v Cantin (1993) A.J. 710) and caused confusion in others (See for example Regina v Paice 2005 SCC 22, [2005] 1 SCR 339) Other decisions arose in the context of Young Persons in which the Court seems to engage in a multi-factor analysis not appearing to treat the presence or absence of a finding of an actual intent to cause bodily harm as completely controlling. (See in that regard Regina v W.(G.), (1994) 1994 3442 (ON CA), 18 OR (3d) 321 Regina v M. (S.), (1995) 1995 1895 (ON CA), 22 OR (3d) 605 Regina v J.(M.) (2001) OJ 5566 and Regina v W.(J.) (2004) AJ No 1015.)

[30] Since all these cases were decided, however, the Supreme Court of Canada came back to this issue in Regina v Paice supra. In that case the Court held that in order to vitiate a consent, for adults both factors must be present. The court must find an intent to cause bodily harm beyond trifling or transient and also make a finding that, in fact, bodily harm to that level was caused.

[31] The rationale suggested for this in Paice, supra, is that if this was not the case the net of criminal liability would be set too wide. The court gave two examples of this overly broad net. The first one related to the possibility of capturing activity in which no bodily harm was in fact caused and was intended only. The other example provided was that a rule which only focuses on the causing of bodily harm would mean that those who accidentally causing bodily harm in the course of a “friendly wrestling match” might be caught.

[32] Again with respect, some might also question both examples. The public policy rule of the Attorney General’s Reference, supra, and in Jobidon, supra, was expressly confined to a particular context namely the one before the court at the time. That context was the admittedly social useless and dangerous behaviour of engaging in fist fights and brawls involving grown adults. Those cases, it might be strongly argued, did not address the setting provided by a “friendly” wrestling match at all. Further, once one appreciates the narrow context in which the propounded rule of public policy applies, the English position that simply causing bodily harm in such a setting is sufficient arguably becomes perhaps somewhat more intelligible.

[33] Be that as it may, until the Supreme Court speaks again, it is too late for trial courts to conclude that there need only be an intent to cause bodily harm beyond the trivial or a causing of bodily harm to that level to result in a vitiation of a consent even in the context of an actual fist fight or brawl involving adults. Nor will some lesser intent suffice. For example, an intent to harm coupled with a causing of bodily harm beyond the trivial even in the context of a street fight will not do. A consent to a fist fight, in which non-trivial bodily harm in fact occurs in circumstances in which it is even objectively foreseeable will, in Canada, be recognized as legally effective. In such situations the participants remain shielded from a finding of guilt in relation to an allegation of assault.

[34] It must also follow from Paice, supra, that at least findings of an intention to cause bodily harm and a causing of bodily harm when the case before the court involves an accused person who is not adult are required. Any suggestion of a multifactor analysis in which, for example, an absence of an intent to cause bodily has no absolutely controlling quality is also, no longer open to Canadian trial courts.

[35] This leads me to the next question, however, which has become increasingly important. That is, “What should Justice Gonthier be taken as meaning when he said this rule of public policy in Canada should “confine itself to bodily harm intended and caused?”

[36] The courts, over the years, ascribed various meanings to the notion of an intention to bring about a consequence. On some occasions the notion of intention is confined to the notion of purpose. On some occasions, it has been expanded to include consequences that are foreseen as certain or foreseen as “substantially” or “practically” certain although not themselves the actor’s purpose. (See Lafave and Scott, Substantive Criminal Law 1986 Vol. 1 para 3.5(a)). On other occasions, it has been said, that one can be said to intend results when one is aware of a likely risk and yet chooses to proceed deliberately and unjustifiably in the face of that risk. (See Lord Diplock in Regina v Lemon and Regina v Gay News Ltd. [1979] 1 All E R 898)

[37] The courts are not alone in this. Jeremy Bentham for example, described a consequence as “directly intended” when the “prospect of producing it constituted one of the links in the chain of causes by which the person was determined to do the act” and “indirectly intended” where it was “merely in contemplation and likely to ensue” (See D Stuart Canadian Criminal Law 5th ed. pg. 229). In every day speech we may be said to have intended an outcome if we expect it to occur and consciously proceed to act in a way that we expect will bring about the result. The authors of Mewitt and Manning, supra, refer to a whole variety of mental states including recklessness as “intentional” states. (See in that regard Mewett and Manning supra, pg 149). If we were to talk of the modern basic form of “criminal intent” we would generally be taken as presumptively including recklessness. (See Regina v MacCannell (1980) OJ No 996 at para. 10 and 11).

[38] The fact that words like “intention” and “wilfully” can have different meanings in different contexts and have historically been treated as having different meanings by the courts over time could not possibly be better described than in the following passage written by Martin, J.A., in the case of Regina v Buzzanga and Durocher (1979) 1979 1927 (ON CA), 49 CCC 2d 369. At pg 379 - 385 of that case Martin, J.A. states:

The threshold question to be determined is the meaning of "wilfully" in the term "wilfully promotes hatred" in s. 281.2(2) of the Criminal Code. It will, of course, be observed that the word "wilfully" modifies the words "promotes hatred", rather than the words "communicating statements".

The word "wilfully" has not been uniformly interpreted and its meaning to some extent depends upon the context in which it is used. Its primary meaning is "intentionally", but it is also used to mean "recklessly": see Glanville Williams, Criminal Law, The General Part, 2nd ed. (1961), pp. 51-2; Glanville Williams, Textbook of Criminal Law (1978), p. 87; Smith and Hogan, Criminal Law, 4th ed. (1978), pp. 104-5. The term "recklessly" is here used to denote the subjective state of mind of a person who foresees that his conduct may cause the prohibited result but, nevertheless, takes a deliberate and unjustifiable risk of bringing it about: see Glanville Williams, Textbook of Criminal Law, pp. 70 and 76; Smith and Hogan, Criminal Law, 4th ed., pp. 52-3.

The word "wilfully" has, however, also been held to mean no more than that the accused's act is done intentionally and not accidentally. In R. v. Senior, [1899] 1 Q.B. 283, Lord Russell of Killowen, C.J., in interpreting the meaning of the words "wilfully neglects" in s. 1 of the Prevention of Cruelty to Children Act, 1894 (U.K.), c. 41, said at pp. 290-1: " 'Wilfully' means that the act is done deliberately and intentionally, not by accident or inadvertence, but so that the mind of the person who does the act goes with it."

On the other hand, in Rice v. Connolly, [1966] 2 Q.B. 414, where the accused was charged with wilfully obstructing a constable in the execution of his duty, Lord Parker, L.C.J., said at p. 419: " 'Wilful' in this context not only in my judgment means 'intentional' but something which is done without lawful excuse ... ".

… Mr. Manning conceded that in some cases the element of wilfulness is supplied by recklessness but he contended that in its context in s. 281.2(2) of the Criminal Code "wilfully" means with the intention of promoting hatred. In the course of his argument, Mr. Manning stressed the definition of "wilfully" contained in s. 386(1) of the Code, which reads:

386(1) Every one who causes the occurrence of an event by doing an act or by omitting to do an act that it is his duty to do, knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed, for the purposes of this Part, wilfully to have caused the occurrence of the event.

Mr. Manning emphasized that s. 386(1) provides that wilfully is to have the meaning specified in that section for the purposes of Part IX of the Code. He argued with much force that the state of mind specified in s. 386(1) is recklessness and that where Parliament intends to extend the meaning of wilfully to include recklessness it does so expressly. In R. v. Rese, 1967 246 (ON CA), [1968] 1 C.C.C. 363 at p. 366, [1967] 2 O.R. 451 at p. 454, 2 C.R.N.S. 99, Laskin J.A. (as he then was), referred to the definition now contained in s. 386(1) as an extended meaning of "wilfully".

As previously indicated, the word "wilfully" does not have a fixed meaning, but I am satisfied that in the context of s. 281.2(2) it means with the intention of promoting hatred, and does not include recklessness. The arrangement of the legislation proscribing the incitement of hatred, in my view, leads to that conclusion.

Section 281.2(1), unlike s. 281.2(2), is restricted to the incitement of hatred by communicating statements in a public place where such incitement is likely to lead to a breach of the peace. Although no mental element is expressly mentioned in s. 281.2(1), where the communication poses an immediate threat to public order, mens rea is, none the less, required since the inclusion of an offence in the Criminal Code must be taken to import mens rea in the absence of a clear intention to dispense with it: see R. v. Prue; R. v. Baril (1979), 1979 227 (SCC), 46 C.C.C. (2d) 257 at pp. 260-1, 96 D.L.R. 577 at pp. 580-1, 8 C.R. (3d) 68 at p. 73. The general mens rea which is required and which suffices for most crimes where no mental element is mentioned in the definition of the crime, is either the intentional or reckless bringing about of the result which the law, in creating the offence, seeks to prevent and, hence, under s. 281.2(1) is either the intentional or reckless inciting of hatred in the specified circumstances.

The insertion of the word "wilfully" in s. 281.2(2) was not necessary to import mens rea since that requirement would be implied in any event because of the serious nature of the offence: see R. v. Prue, supra. The statements, the communication of which are proscribed by s. 281.2(2), are not confined to statements communicated in a public place in circumstances likely to lead to a breach of the peace and they, consequently, do not pose such an immediate threat to public order as those falling under s. 281.2(1); it is reasonable to assume, therefore, that Parliament intended to limit the offence under s. 281.2(2) to the intentional promotion of hatred. It is evident that the use of the word "wilfully" in s. 281.2(2), and not in s. 281.2(1), reflects Parliament's policy to strike a balance in protecting the competing social interests of freedom of expression on the one hand, and public order and group reputation on the other hand.

The recent judgment of the House of Lords in R. v. Lemon; R. v. Gay News Ltd., [1979] 1 All E.R. 898, in my view, is not relevant to the interpretation of s. 281.2(2). In that case, the appellants, the editor and publisher of a newspaper for homosexuals, were convicted of publishing a blasphemous libel in publishing a poem accompanied by a drawing ascribing to Christ homosexual practices.

The House of Lords, by a majority, held that the mental element of the offence of publishing a blasphemous libel was satisfied by proof of an intention to publish matter which, in fact, is likely to shock and outrage the feelings of believing Christians, and that it is unnecessary to prove, in addition, that in publishing the blasphemous material the accused intended to produce that effect. Lord Scarman, who shared the majority view, referred to the charge to the jury by Lord Denman, C.J., in R. v. Hetherington (1841), 4 State Tr. N.S. 563 at p. 593, where he told the jury that the only question for them to decide was whether in their opinion the publication in question was blasphemous and whether the defendant "issued it knowingly and wilfully", and then said of this passage: "In context his adverb 'wilfully' meant no more than 'deliberately' " (at p. 926).

Lord Diplock and Lord Edmund-Davies, however, were of the view that the subjective intention to insult or outrage, or recklessness in producing that result, must be brought home to the accused.

The divergence of opinion between the majority and the minority reflects different views as to the elements of the offence of publishing a blasphemous libel, and does not assist in the interpretation of s. 281.2(2) of the Criminal Code.

The majority, as previously indicated, were of the view that the only mental element required to be proved in a prosecution for publishing a blasphemous libel is the intent to knowingly publish the words which are, in fact, blasphemous. Thus, that offence consists in the "wilful" publication of the blasphemous matter. On the other hand, the offence created by s. 281.2(2) is not committed by "wilfully" communicating statements which promote hatred, but by "wilfully" promoting hatred by communicating statements.

Having concluded that proof of an intention to promote hatred is essential to constitute the offence under s. 281.2(2), it is necessary to consider the mental attitude which must be established to constitute an intention to promote hatred. The state of mind connoted by "intention", where an intention to bring about a certain result is an element of the offence, has been the subject of much discussion, and writers on jurisprudence, as well as Judges, have not always been in agreement as to its meaning. Some eminent legal scholars hold the view that a consequence is not intended unless it is desired, recognizing that a consequence may be desired not as an end in itself but desired in order to accomplish some other purpose: see Salmond on Jurisprudence, 8th ed. (1930), pp. 393-6 (but cf., the view of P. J. Fitzgerald, the editor of the 12th edition, pp. 367-9; Holmes, The Common Law, pp. 52-3; Glanville Williams, Textbook of Criminal Law, p. 51). Other eminent legal scholars hold that the test of intention is not whether the actor desired the relevant consequence, but whether he decided or resolved to bring it about, even though it may have been distasteful to him: see Jerome Hall, General Principles of Criminal Law, 2nd ed. (1960), p. 112; Russell on Crime, 12th ed. (1964), vol. 1, p. 41. The latter description of intention is in accord with the views expressed by Lord Hailsham as to the meaning of intention in Hyam v. Director of Public Prosecutions, [1975] A.C. 55 at p. 74, and with those of the Court of Appeal (Criminal Division) in R. v. Mohan (1975), 60 Cr. App. R. 272 at pp. 276 and 278.

There are cases which appear to provide support for the proposition that where an intention to produce a particular consequence is essential to constitute the offence, an act is not done with intent to produce the prohibited consequence unless it is the actor's conscious purpose to bring it about, and that the actor's foresight of the certainty of the consequence is not synonymous with an intention to produce it: see R. v. Miller (1959), 1959 466 (BC CA), 125 C.C.C. 8 at p. 30, 31 C.R. 101, 29 W.W.R. 124; R. v. Ahlers, [1915] 1 K.B. 616; Sinnasamy Selvanayagam v. The King, [1951] A.C. 83; R. v. Steane, [1947] 1 K.B. 997. Most of these cases are subjected to critical examination by Dr. Glanville Williams in Criminal Law, The General Part, 2nd ed. (1961), pp. 40-2.

There is, however, substantial support for the proposition that in the criminal law a person intends a particular consequence not only when his conscious purpose is to bring it about, but also when he foresees that the consequence is certain or substantially certain to result from his conduct: see Glanville Williams, Criminal Law, The General Part, 2nd ed. (1961), p. 38; Walter Wheeler Cook, Act, Intention, and Motive in the Criminal Law (1916-17), 26 Yale L.J. 645 at pp. 654-8; Rollin Perkins, A Rationale of Mens Rea, 52 Harv. L. Rev. 905 at pp. 910-1 (1938-39).

Smith and Hogan, the learned authors of Criminal Law, 4th ed., state at p. 51, that the authorities referred to by them:

... suggest that in the criminal law generally, though not universally, a person intends a consequence if it is his purpose to achieve it or if he knows that the achievement of some other purpose is certain, or "morally" certain, to produce the consequence in question.

In R. v. Lemon; R. v. Gay News Ltd., supra, Lord Diplock, however, defined intention in much wider terms. He said that where intention to produce a particular result is a necessary element of an offence, no distinction is to be drawn in law between the state of mind of one who does an act because he desires to produce that particular result, and the state of mind of one who, when he does the act, is aware that it is likely to produce that result but is prepared to take the risk that it may do so in order to achieve some other purpose. He considered that the law has been settled by Hyam v. Director of Public Prosecutions, supra, "that both states of mind constitute 'intention' in the sense in which that expression is used in the definition of a crime whether at common law or in a statute" (at p. 905).

Hyam v. Director of Public Prosecutions, supra, was concerned with the mental element required to constitute "malice aforethought". It may well be that either an intention to kill or cause serious bodily harm, or foresight that death or serious bodily harm is a highly probable consequence of an act done for some other purpose, is a sufficient mens rea for murder at common law. I do not consider, however, that the actor's foresight that a consequence is highly probable, as opposed to substantially certain, is the same thing as an intention to bring it about: see Hyam v. Director of Public Prosecutions, supra, per Lord Hailsham at p. 75; R. v. Belfon, [1976] 3 All E.R. 46; Smith and Hogan, Criminal Law, 4th ed., pp. 47-51; Commentary on R. v. Lemon et al., [1979] Crim. L.R. 311 at p. 314. In my view, the mental attitude described by Lord Diplock is a form of recklessness.

I agree, however (assuming without deciding that there may be cases in which intended consequences are confined to those which it is the actor's conscious purpose to bring about), that, as a general rule, a person who foresees that a consequence is certain or substantially certain to result from an act which he does in order to achieve some other purpose, intends that consequence. The actor's foresight of the certainty or moral certainty of the consequence resulting from his conduct compels a conclusion that if he, none the less, acted so as to produce it, then he decided to bring it about (albeit regretfully), in order to achieve his ultimate purpose. His intention encompasses the means as well as to his ultimate objective.

I conclude, therefore, that the appellants "wilfully" (intentionally) promoted hatred against the French Canadian community of Essex County only if: (a) their conscious purpose in distributing the document was to promote hatred against that group, or (b) they foresaw that the promotion of hatred against that group was certain or morally certain to result from the distribution of the pamphlet, but distributed it as a means of achieving their purpose of obtaining the French-language high school.

[39] I accept the notion that the modern Anglo/Canadian law has reached the point that when a court is interpreting the meaning of phrases like “intentionally” or “with the intent to” when used to describe the mental element of a criminal offence, the proper interpretation, normally, would be to confine that mental state to desire or purpose to achieve the consequence or to those consequences which the actor foresees as certain or foresees as “substantially” or “practically” certain. “Intention” when used as a term of art in this context would normally exclude recklessness. This is consistent with the conclusion Justice Martin reached in Buzzanga,supra. See Mewitt and Manning, supra, pg 164.

[40] Be all that as it may, Justice Gonthier was not using concepts of intended or intentionally in the context of interpreting a mens rea requirement of an offence. He was using it in the course of discussing the scope of a common law rule as to when the court would vitiate a consent as a matter of public policy. He was, moreover, doing so in relation to a rule that was founded on a number of prerequisites other than just the mental state of the offender. These included the fact that the conduct arose in the context of the admittedly social harmful, conduct of a full fist fight or brawl involving adults; not sporting activities; not surgery, not “friendly” physical contests or other struggles which could be fairly be characterized for whatever reason as minor.

[41] I have come to the conclusion that there are several reasons to conclude that Justice Gonthier was using the notion of causing bodily harm that was “intended” in the broader sense of intention identified by Lord Diplock.

[42] Firstly, if one looks to the concern he had about the English rule articulated in the context of paragraph 104 of his judgment, one finds as mentioned earlier a concern that the English rule would capture “inadvertent” injury. Lord Diplock’s broader concept of intention clearly addresses this in that it requires, and is based on a concept of actual advertence to a risk which has reached a level that it could be described as likely. The use of the narrow notion of intention will on the other hand potentially leave a meaningful portion of the advertent infliction of injury, even in this context, beyond the reach of our criminal law.

[43] Furthermore, in reading in the element which requires a form of intention to cause bodily harm in all cases, Justice Gonthier was adding an element that did not necessarily exist as a prerequisite in the traditional common law rule vitiating consent, in this context. This added element should be interpreted in a way that results in its limiting the common law rule only to the extent required by the Code, or Charter values or other like concerns. This approach is, in a general way, consistent with the terms of the source of the doctrine itself in Canada namely the statutory provision found in section 8(2) of the Code.

[44] Furthermore the narrower the interpretation of intent in this context becomes the more the application of force to the person, which would otherwise be criminal, will be found to be shielded. In Regina v Ogg-Moss 1984 77 (SCC), [1984] S.C.J. No 37 Dickson J recognized that there was “much wisdom” in a submission that asserted that interpretations of provisions which authorize an otherwise criminal application of force should be strictly construed. So too, with respect to the interpretation given to what will amount to a legally recognized consent justifying the infliction of harm, for no good reason, in the context of an activity easily identified as dangerous.

[45] I concur that when “with the intent” or “intentionally” is used as a term of art in relation to the mens rea requirement of a particular statute there is every reason to give that word a narrow interpretation. There is no need to use such words in the offence creating sections of the Code as pointed out by Martin J.A. The requirement for criminal intent is presumed in that context. The express use to these kinds of terms in such a context is thus, generally, logically, taken as an effort by Parliament to narrow the otherwise presumed mental element. No such inference in open in relation to the use of the word “intended” when used in the provided by paragraph 104.

[46] In my view, the policy objectives identified in Jobidon, supra, underlying the limitation on consent imposed with respect to full on fist fights are also best served if one interprets Justice Gonthier’s comments as a reference to the broad sense of intention described above. Moreover such an interpretation would not result in an unduly broadly cast net of liability. This can be seen to be so when it is recognized that the rule is context specific applying to true fist fights or brawls and would continue to require the actual infliction of bodily harm beyond the non-trivial. Indeed, rigid adherence to the narrow notion of intention in a context requiring proof beyond a reasonable doubt may cast the net too narrowly when one considers the social harm inherent in street fights and brawls and their frequently spontaneous nature. (Lafave and Scott suggest that under the American Model Penal Code an even broader net would be cast. Section 211.1 defines simple assault, in part, to include “purposely, knowingly or recklessly causing bodily injury”. The same section goes on to state that simple assault is a misdemeanor unless committed in a consent fight or scuffle in which case it is a petty misdemeanor. Bodily harm for this purpose also appears to have been defined broadly. Section 210 defines bodily injury to include “physical pain, illness or impairment of physical condition”. See Substantive Criminal Law supra Vol 2 Appendix A)

[47] Nor does such an approach violate any fault requirements of the Charter. The fault element is provided through the intentional application of force, in the context of a true fist fight or brawl, wherein non-trivial harm must, in fact, be caused and was, indeed, foreseen as likely.

[48] In the result then to answer the question I posed at the outset of this section of this decision, “What should Justice Gonthier be taken as meaning when he said this rule of public policy in Canada should “confine itself to bodily harm intended and caused?”

[49] I believe he should be taken as meaning that the Crown must establish beyond a reasonable doubt that the accused’s purpose was to inflict bodily harm beyond the transient or trifling, or alternatively that he foresaw such an outcome as a certain or as “substantially” or “practically” certain or, as a further alternative, that he foresaw such an outcome as being likely and chose to deliberately and unjustifiably proceeded in the face of that risk.

Conclusion

[50] Applied to this case I have a doubt that it was the accused’s actual purpose or desire to inflict bodily harm beyond the transient or trifling here. His actual purpose or desire was clearly to apply force to the complainant so as to subdue and humiliate him. He may, however, have been happy to do so without necessarily inflicting injury of significant proportion on the complainant. Can it be said beyond a reasonable doubt that he foresaw, however, that in attempting to do so he would, as a matter of certainty or “substantial” or “practical” certainty, cause bodily harm beyond the trifling or transient level?

[51] In this case we have two young men who, with time to deliberate, in advance, come together to potentially engage in a fist fight, both in front of their friends, both not wanting to give in, both ultimately intent on hitting each other as hard as possible with their fists to the head in an effort to subdue the other when neither wanted to be subdued. In those circumstances, it may well be that they would both be aware that inherent in their conduct was the “substantial” or “practical” certainty that at least one of the following would come to pass; significant bruising, a seriously swollen eye or eyes, a significant cut to a lip, a concussion, a significant injury to a nose, or as did occur here, a lost tooth or teeth or injury to the gums. Any of these injuries are, in my view, bodily harm beyond the trifling or transient.

[52] How certain does an event have to be to be viewed as “practically” or “substantially” certain? Precise guidance on this matter is difficult to lay down. For this purpose perhaps the best we can do is to bear in mind the comments of Glanville Williams, Criminal Law, The General Part 2nd ed 1961 pg 40:

…We do speak of certainty in ordinary life; and for the purpose of the present rule it means such a high degree of probability that common sense would pronounce it as certain. Mere philosophical doubt or the intervention of an extraordinary chance is to be ignored.

[53] In the end, I find I do not need to resolve this more difficult issue as I am certain that the accused would, at least be aware, that there was a risk of the likelihood of such an injury. In continuing to proceed to engage in this conduct, they were, in all the circumstances, both proceeding deliberately and without justification. There was no justifying purpose in the conduct they chose to engage in. The accused took no care to prevent serious injury. The conduct the two young men chose to engage in was socially harmful and attended with obvious danger. Clearly on these facts, the requirement, as I have interpreted it, that the accused intend bodily beyond the transient or trifling was present. Such level of bodily harm was also ultimately in fact caused. Moreover, the context is clearly a full on fist fight or brawl. If the accused was an adult there is no doubt in my mind that any consent in this case would be vitiated under our law and the English common law even prior to the Attorney-General’s Reference, supra.

[54] It may be however, given the approach taken by our courts to date, that the court should look at the situation more closely, in some situations involving persons under 18 once the basic factors applicable to adults are established. This examination might in effect include an assessment of all the surrounding circumstances including factors such as the precise age of the youth, the nature and circumstances of the assaultive behaviour, and the seriousness of the blow or blows employed and the nature of the injury produced.

[55] I would observe that in this case the bodily harm brought about by the accused in this case was in fact much more than nontrivial. It was in fact quite serious. In fact it might on some definitions even be seen as a “maim”. (See Hawkin’s Pleas of the Crown 1824 vol 1 pg 107 as referred to in Regina v Schultz (1962) 1962 553 (AB SCAD), 133 CCC 174 at 178-9 recognizing that the loss of the foreteeth was a “maim” at common law.). The precise manner in which this injury was brought about also reflects an assault that was, in its nature, a truly dangerous one. As I said, I am satisfied that prior to administering the upper cut, the accused grabbed the victim behind his neck and held him with one hand delivering a blow of real force by means of an upper cut motion to his head with the other. Holding the complainant in this manner undoubtedly added to the impact which such a blow would have.

[56] I accept that these two persons were not adults but they also were clearly not boys. They were young men. This fight was also carried out in a way that it carried with it danger of a broader breach of the peace, friends surrounding the fighters at the time of the confrontation.

[57] In short, I find the facts here, clearly meets the test to vitiate consent for adults established in Jobidon, supra. Notwithstanding the fact that the accused is not an adult, the other circumstances present bring this case directly within the all the policy concerns that resulted the Attorney General’s Reference No 6 1980, supra, the reversal of Dix, supra, and the change in our law as articulated in Jobidon, supra, and Paice, supra. Indeed I would say that the facts of this case are in fact at the very core of what the policy rule should capture.

[58] It was never argued in this case that the accused had available to him any defence of self defence nor do I believe he does. He, at a minimum, voluntarily chose to proceed to the fight circle knowing what was coming, assuming for the moment he did not lead the way. His actions do not speak of self defence. The behaviour of both parties speaks of mutual provocation to engage in behaviour that involves the application of force to one another. Assuming as directed by Paice, supra, that both an intent to cause and a causing of actual bodily harm are necessary to vitiate consent, neither party had assaulted the other or could believe they had been assaulted until bodily harm beyond the trifling or transient had been caused. That only clearly became the case when the accused strikes the blow causing injury to the teeth.

[59] In the end result, I find I am satisfied beyond any doubt that a finding of guilt must be made in this case.