SUPREME COURT OF CANADA

Citation: R. v. Paice, [2005] 1 S.C.R. 339, 2005 SCC 22

Date: 20050422

Docket: 30045

Between:

Christiano Daniel Justin Paice

Appellant

v.

Her Majesty the Queen

Respondent

‑ and ‑

Attorney General of Ontario

Intervener

Coram: Major, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

Reasons for judgment: (paras. 1 to 23)

Charron J. (Major, Binnie, LeBel, Deschamps and Abella JJ. concurring)

Concurring reasons: (paras. 24 to 43)

Fish J.

R. v. Paice, [2005] 1 S.C.R. 339, 2005 SCC 22

Christiano Daniel Justin Paice Appellant

v.

Her Majesty The Queen Respondent

and

Attorney General of Ontario Intervener

Indexed as: R. v. Paice

Neutral citation: 2005 SCC 22.

File No.: 30045.

2004: December 15; 2005: April 22.

Present: Major, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

on appeal from the court of appeal for saskatchewan

Criminal law — Defences — Self‑defence — Assault — Consent — Interpretation of Jobidon — Deceased killed by accused in fist fight — Whether fight consensual — Whether self‑defence available to accused — Criminal Code, R.S.C. 1985, c. C‑46, s. 34.

Following a scuffle inside a bar, the accused was challenged by the deceased to go outside and fight. Once there, they exchanged threats, and the deceased pushed the accused once or twice. The accused struck the deceased on the jaw. The deceased fell backward, his head bouncing off the pavement. The accused then struck him two more times on the head. The deceased died as a result of his injuries and the accused was charged with manslaughter. The trial judge acquitted him on the ground that, following the deceased’s pushing which constituted an unlawful assault, the accused had acted in self‑defence within the scope of s. 34(1) of the Criminal Code. The Court of Appeal set aside the acquittal and ordered a new trial.

Held: The appeal should be dismissed. The order for a new trial is confirmed.

Per Major, Binnie, LeBel, Deschamps, Abella and Charron JJ.: Self‑defence under s. 34(1) of the Code is not available to either combatant in a consensual fist fight. That the deceased had agreed to fight was not a contentious issue at trial, but it is unclear from the trial judge’s reasons whether he found, as a fact, that the accused had also consented to the fight. A misinterpretation of the principles in Jobidon led the trial judge into error in his analysis on self‑defence. First, his conclusion that the deceased’s pushing of the accused 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 each of them had entered the fight with the intention to cause serious bodily harm to the other. Under Jobidon, however, serious harm must be both intended and caused for consent to be vitiated. Whether the deceased intended to cause serious bodily harm, he did not in fact do so. Because the trial judge based his finding that the accused had been unlawfully assaulted solely on the legal conclusion he had reached on the issue of consent, he never inquired into whether the accused had in fact consented to the fight. Second, the trial judge did not address the question of provocation. An accused can rely on s. 34(1) only if he was unlawfully assaulted “without having provoked the assault”. It was not open to the Court of Appeal to determine the issue of provocation and to conclude that the accused could not be said to be the victim of an unprovoked assault based on its own assessment of the evidence in the absence of a definitive finding by the trial judge that the accused consented to the fight. [4] [18-21]

Per Fish J.: The accused’s acquittal must be set aside on the sole ground that the trial judge overlooked the unprovoked assault requirement of s. 34(1) of the Code. [31-32]

Cases Cited

By Charron J.

Applied: R. v. Jobidon, 1991 CanLII 77 (SCC), [1991] 2 S.C.R. 714; distinguished: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168; referred to: Attorney General’s Reference (No. 6 of 1980), [1981] 2 All E.R. 1057; R. v. Squire (1975), 1975 CanLII 45 (ON CA), 26 C.C.C. (2d) 219, rev’d 1976 CanLII 26 (SCC), [1977] 2 S.C.R. 13.

By Fish J.

Referred to: R. v. Jobidon, 1991 CanLII 77 (SCC), [1991] 2 S.C.R. 714; Attorney General’s Reference (No. 6 of 1980), [1981] 2 All E.R. 1057; R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1985, c. C‑46, ss. 2 “bodily harm”, 34, 35, 36, 222(5)(a), 265(1)(a), (2), (3), 267, 686(1)(a)(i).

Authors Cited

Canadian Oxford Dictionary. Edited by Katherine Barber, 2nd ed. Toronto: Oxford University Press, 2004, “grievous”.

Stuart, Don. Canadian Criminal Law: A Treatise, 4th ed. Scarborough, Ont.: Carswell, 2001.

APPEAL from a judgment of the Saskatchewan Court of Appeal (Gerwing, Sherstobitoff and Jackson JJ.A.), [2004] 5 W.W.R. 621, 238 Sask. R. 195, 305 W.A.C. 195, [2003] S.J. No. 590 (QL), 2003 SKCA 89, allowing the Crown’s appeal against the acquittal of the accused on a manslaughter charge, and ordering a new trial. Appeal dismissed.

Aaron A. Fox, Q.C., and James N. Korpan, for the appellant.

W. Dean Sinclair, for the respondent.

Michael Bernstein and Gregory J. Tweney, for the intervener.

The judgment of Major, Binnie, LeBel, Deschamps, Abella and Charron JJ. was delivered by

Charron J. —

I. Overview

1 This appeal is about self-defence in the context of what was alleged to have been a consensual fist fight. Clinton Bauck died as a result of injuries suffered during the fight. The appellant, Christiano Daniel Justin Paice, was charged with manslaughter contrary to s. 222(5)(a) of the Criminal Code, R.S.C. 1985, c. C-46. By way of defence, he sought to rely on the deceased’s consent to the fight. Alternatively, he claimed that he had acted in self-defence.

2 The trial judge rejected Mr. Paice’s first contention based on the principle set out in R. v. Jobidon, 1991 CanLII 77 (SCC), [1991] 2 S.C.R. 714. He held that neither Mr. Paice nor Mr. Bauck could rely on the consent of the other to negate a finding of assault because each had intended to cause bodily harm and, in fact, serious harm did occur. The trial judge, however, accepted Mr. Paice’s alternative argument and acquitted him on the ground that he had acted in self-defence within the scope of s. 34(1) of the Criminal Code. In essence, he found that Mr. Paice had repelled Mr. Bauck’s unlawful assault with no more force than necessary.

3 On appeal by the Crown, the Court of Appeal for Saskatchewan held that self-defence under s. 34(1) of the Criminal Code was not open to Mr. Paice because, in its view, the evidence could only support a finding that he had provoked the assault and that, in repelling it, he had intended to cause grievous bodily harm. However, based on the findings of fact made by the trial judge, the court concluded that it could not make sufficient determinations to negate the application of self-defence under s. 34(2) or s. 35. Consequently, the Court of Appeal set aside the acquittal and ordered a new trial, emphasizing that the new trial judge would not be constrained by its comments on the first trial judge’s findings of fact: (2003), 238 Sask. R. 195, 2003 SKCA 89.

4 I would dismiss the appeal, although for different reasons than the Court of Appeal. I agree with the conclusion of the Court of Appeal that self-defence under s. 34(1) is not available to either combatant in a consensual fist fight because neither could be heard to say that he has been the innocent victim of an unprovoked assault when he has consented to the fight. However, as I will explain, it is unclear from the reasons of the trial judge whether he found as a fact that this was a consensual fight. The fact that Mr. Bauck had agreed to fight was not a contentious issue at trial and the trial judge correctly held that Mr. Paice could not rely on that consent in defence to a charge of manslaughter. What is not clear from the reasons is whether the trial judge found that Mr. Paice had also consented to the fight. If Mr. Paice consented to the fight, he could not claim to have acted in self-defence within the scope of s. 34(1), although other provisions may have to be considered. If, on the other hand, Mr. Bauck was the sole aggressor, self-defence under s. 34(1) could not be ruled out. These are all matters that will have to be determined on the new trial.

II. The Evidence at Trial

5 On May 25, 2001, the appellant, Mr. Paice, and some friends attended a bar in Moose Jaw, Saskatchewan, to celebrate a birthday. At some point in the evening, one of Mr. Paice’s friends became involved in a dispute with a friend of the deceased, Mr. Bauck, over a game of pool. Upon noticing the scuffle, Mr. Paice left his seat at the bar and intervened, separating the combatants. In his words, “there wasn’t going to be a fight”. Several employees of the bar also intervened to prevent further disruption, advising the parties that fighting was not allowed and if they intended to fight they should “take it outside”.

6 According to Mr. Paice, as he returned to his seat he was approached by Mr. Bauck and asked “do you want to go outside to fight?” Mr. Paice could not recall whether or not he specifically answered the question; nevertheless he did subsequently go outside. Once outside, Mr. Paice and Mr. Bauck squared off, exchanging threats. Mr. Bauck then pushed the accused once, perhaps twice, causing Mr. Paice to go back several steps. Mr. Paice, now in close proximity to Mr. Bauck, swung hard with his right elbow, striking Mr. Bauck on the left side of his jaw. Mr. Bauck immediately fell backward onto the pavement. He did not appear to cushion his fall and his head seemed to bounce off the pavement. It appeared to most of the witnesses that Mr. Bauck was knocked out by this first blow.

7 Mr. Paice then straddled the prostrate Mr. Bauck, striking him two more times, the third blow being of a glancing nature. Mr. Paice was then pulled off Mr. Bauck, but he continued to rant at the victim, swearing and asking if he wanted more. Some time later, Mr. Bauck died as a result of his injuries.

III. Analysis

8 The trial judge correctly instructed himself on the constituent elements of the offence of manslaughter. Manslaughter is culpable homicide and, under s. 222(5)(a) of the Criminal Code, it is committed when a person “causes the death of a human being by means of an unlawful act”. In this case, the alleged unlawful act is assault. Under s. 265(1)(a), a person commits an assault when, “without the consent of another person, he applies force intentionally to that other person, directly or indirectly”. Section 265(2) expressly provides that this “section applies to all forms of assault, including . . . causing bodily harm”. Section 265(3) further provides that no consent is obtained in certain circumstances, none of which applies here.

9 As noted earlier, Mr. Paice sought to rely on Mr. Bauck’s consent to the fight to escape criminal responsibility. He argued that if Mr. Bauck consented to the application of force, then his actions in the course of the fight would not constitute an assault within the meaning of the Criminal Code. Therefore, Mr. Paice’s actions, being lawful by definition, would not trigger the manslaughter provision. That Mr. Bauck consented to go fight in the parking lot was not a contentious issue at trial. The legal question that arose was whether Mr. Paice could effectively rely on that consent in answer to a charge of manslaughter.

10 Consent, as it applies to an assault in Canada, involves more than a factual finding that the parties agreed to fight. In Jobidon, for policy reasons and on the basis of common law principles, this Court set a limit on the legal effectiveness of consent in cases of consensual fist fights between adults. Jobidon marked a significant development in the law of assault. Writing for the majority, Gonthier J. meticulously surveyed the English common law, Canadian jurisprudence and relevant policy considerations before crafting an appropriate restraint on the effect of a consent to a fist fight between two adults. The test is essentially an adaptation of the English approach, mindful of the application of the Criminal Code.

11 In dealing with the issue of consent, the trial judge reviewed Jobidon and relied expressly on the following excerpt from the decision of the English Court of Appeal in Attorney General’s Reference (No. 6 of 1980), [1981] 2 All E.R. 1057, at p. 1059:

. . . 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. [Emphasis added.]

However, the trial judge did not refer to the fact that this Court in Jobidon held that it was not open in Canada to adopt the English position without modification. The Court referred to the above-noted passage in the Attorney General’s Reference case and stated, at p. 760:

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. [Emphasis in original.]

12 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.

13 With respect, I am of the view that the limits of the principle in Jobidon were not understood by the trial judge. After referring to the Attorney General’s Reference case, the trial judge went on to explain his understanding of the principle in Jobidon and to apply it to this case. He stated the following:

What Jobidon, then, has developed is an understanding that no combatant in a fight can consent to another person causing him or her serious bodily harm or non-trivial harm. Resultantly, as was indicated numerous times throughout the Jobidon decision, there will only exist very rare situations where a fistfight, even though agreed to by both parties, will not be considered as an assault due to the presence of intended or actual harming of either of the combatants.

Applying the reasoning in Jobidon to the present case, I have found, just as the trial judge did in Jobidon, that both combatants to this fight intended to cause the other bodily harm that was serious and not trivial, and that, in fact, serious harm did occur. On that basis, I find that neither combatant was able to consent to the fistfight.

In coming to this conclusion, I am reminded that the accused testified that the deceased warned that he was going to “beat up” the accused, “kick his ass”, or “break him up”, and that similarly, the accused intended to “hit the deceased so that he would either retreat or give up”, and that he would do so to “get the upper hand in the fight”. The infliction of bodily harm of a non-trivial nature was, in my finding, certainly intended by both of these combatants. [Emphasis added.]

14 It is apparent from his reasons that the trial judge was of the view that the consent to a fist fight would be nullified by either an intention to cause serious bodily harm or an actual causing of such harm. The trial judge’s misinterpretation of Jobidon is of no consequence to his conclusion that Mr. Paice could not rely on the deceased’s consent in defence to the charge because the trial judge found that Mr. Paice both intended to cause serious bodily harm and, in fact, caused it. Hence, Mr. Paice could not argue that he had not committed the unlawful act of assault and his first defence failed. However, the trial judge’s overextension of the principle in Jobidon led him into error in his subsequent consideration of the elements of self-defence.

15 After rejecting the defence of consent, the trial judge turned his attention to Mr. Paice’s alternative argument that he had acted in self-defence. Section 34(1) of the Criminal Code was the sole provision considered by the trial judge. It reads as follows:

34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

For Mr. Paice to successfully argue self-defence under s. 34(1), it must first be found that he was unlawfully assaulted by Mr. Bauck.

16 The trial judge concluded that Mr. Bauck’s actions “met the s. 265 requirements for assault”. The Crown contended that Mr. Bauck’s push of Mr. Paice was not an unlawful assault because, following the principles of Jobidon, Mr. Paice had consented to the application of force and no bodily harm was occasioned by the push. The trial judge rejected the Crown’s position and was of the view that there could be no consent to the application of force unless both persons agreed or understood in advance that the anticipated bodily harm would remain within the bounds established in Jobidon. His reasons for concluding that Mr. Bauck had unlawfully assaulted Mr. Paice were the following:

Having dealt with the issue of consent and concluded that it was not applicable, I am left with a situation where the deceased, without the consent of the accused, intentionally and directly applied force to the accused by pushing him backwards with open hands with sufficient force to knock him back several steps. The issue then turns on how to characterize the accused’s reaction to the aggressor’s actions. [Emphasis added.]

17 The trial judge then held that the accused’s reaction to the assault was justified under s. 34(1) of the Criminal Code. He concluded that a closed fist punch to the head or an elbow to the head from a man of slightly less stature and age than his aggressor was within the threshold of force permitted by s. 34(1) and, in this case, was not intended to cause death or grievous bodily harm. He viewed the subsequent blows as part of one single transaction because there was no significant time interval between the first and last blows thrown.

18 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.

19 Because the trial judge based his finding on this initial question of whether Mr. Paice had been unlawfully assaulted solely on the legal conclusion he had reached on the issue of consent, he never inquired into whether Mr. Paice had in fact consented to the fight. The following aspects of his reasons cause me to question whether the trial judge ever came to a conclusion on this issue. At one point in his reasons for judgment, the trial judge stated that “[a]part from the above finding [his finding that neither party was capable of consenting to the fight], there is no dispute that it was the deceased who was the aggressor, vis-à-vis, the accused throughout the incident.” Further, his findings of fact as to what transpired in the bar before the parties stepped outside to fight are rather inconclusive on the question of Mr. Paice’s consent, if any. Mr. Paice’s actual consent is, of course, crucial to the unlawfulness of Mr. Bauck’s push. However, as stated above, by starting with a legal conclusion determinative of the issue, the question of Mr. Paice’s consent never received the attention it demanded.

20 The second error in the trial judge’s analysis on the s. 34(1) self-defence is the following. The trial judge did not address the question of provocation. An accused can only rely on s. 34(1) if he was unlawfully assaulted “without having provoked the assault”. Under s. 36 of the Criminal Code, provocation includes “provocation by blows, words or gestures”. The defence of self-defence under s. 34(1) is expansive and allows a person to repel force by force as is necessary to enable him to defend himself without the necessity of the apprehension of death or grievous bodily harm. So long as the force used is not itself intended to cause death or grievous bodily harm, the conduct will be justified. Section 34(1) is only available where the accused is an innocent victim who has been assaulted without having provoked the assault. Where a person willingly engages in mutual combat, he cannot later say that he did not provoke the assault: see R. v. Squire (1975), 1975 CanLII 45 (ON CA), 26 C.C.C. (2d) 219 (Ont. C.A.), per Martin J.A., rev’d on other grounds, 1976 CanLII 26 (SCC), [1977] 2 S.C.R. 13. Again, the question of provocation, on the facts of this case, is largely dependent on whether Mr. Paice consented to the fight.

21 The Court of Appeal held that s. 34(1) was not available to Mr. Paice based, not on the trial judge’s failure to deal with the issue, but on its own assessment of the evidence. First, Gerwing J.A. concluded that Mr. Paice could not be said to be the victim of an unprovoked assault. She stated, at para. 11:

Any other conclusion, based on the findings of fact by the trial judge would not meet the standard in R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168; 78 N.R. 351, that is it would be an unreasonable result unsupported by the evidence.

With respect, R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, has no application here. The test in Yebes relates to the question of whether a verdict is unreasonable on an appeal taken under s. 686(1)(a)(i), which does not include appeals from acquittals. Therefore, “an unreasonable result unsupported by the evidence” is not a proper ground for appeal where the trial judge’s verdict was to acquit. Nor is the test one to be applied to individual findings of fact. In my view, it was not open to the Court of Appeal to determine the question of provocation based on its own view of the evidence in the absence of a definitive finding by the trial judge that Mr. Paice consented to the fight.

22 Second, the Court of Appeal was of the view that, on the evidence, the only conclusion that could be reached was that Mr. Paice had in fact intended grievous bodily harm. Applying the standard in Yebes, the Court of Appeal concluded that the “serious harm” mentioned by the trial judge in the context of consent must, in this case, be the same as “grievous bodily harm” within the meaning of s. 34(1), notwithstanding his express conclusion that Mr. Paice had not intended death or grievous bodily harm. The Court of Appeal reasoned as follows, at para. 12:

The inflicting of a hard blow leading to someone falling on the pavement and his head bouncing on it, followed by no reaction on the part of the fallen person with two further blows to the head, all facts found by the trial judge, lead to the conclusion that in this case, at least, the serious bodily harm is the same as “grievous bodily harm” under s. 34(1). Any other conclusion, based on the judge’s fact finding, again would not meet the standard of Yebes.

Again here, the Court of Appeal misapplied the principle in Yebes. Further, the court seemed to conflate the question of intention with the consequences of the act. There is nothing in the trial judge’s reasons that would suggest that he was of the view that Mr. Paice intended what actually happened. In any event, these are all questions to be determined afresh based on the evidence at the new trial.

IV. Disposition

23 For these reasons, I would confirm the order for a new trial and dismiss the appeal.

The following are the reasons delivered by

Fish J. —

I

24 Like Justice Charron, I would dismiss the appeal and affirm the judgment of the Saskatchewan Court of Appeal ((2003), 238 Sask. R. 195, 2003 SKCA 89). In reaching this conclusion, however, I find it unnecessary to rely on the passage from R. v. Jobidon, 1991 CanLII 77 (SCC), [1991] 2 S.C.R. 714, cited by my colleague at para. 11 of her reasons.

25 For ease of reference, I reproduce that passage here:

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. [Emphasis in Jobidon.]

26 This passage raises two difficulties. The first relates to the fault element of assault in Canada. It is true, of course, that s. 265(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, provides that a person commits an assault when, “without the consent of another person, he applies force intentionally to that other person, directly or indirectly”. In virtue of s. 265(2), this requirement — the intentional application of force — applies to all forms of assault. Accordingly, the fault element of assault causing bodily harm, set out in s. 267 of the Code, is an intentional application of force: where bodily harm ensues, a conviction will lie even if the accused, in committing the assault, neither intended nor foresaw that consequence. For an interesting discussion of this issue, see D. Stuart, Canadian Criminal Law: A Treatise (4th ed. 2001), at pp. 263-65.

27 In this light, I am reluctant to ground our conclusion in this case on the assertion in Jobidon that “[a]ny test in our law which incorporated the English perspective would of necessity have to confine itself to bodily harm intended and caused” (p. 760 (emphasis in original)).

28 Second, I see no reason of policy or principle for distinguishing in the context that concerns us here between two participants in a consensual fist fight who, both intending to cause serious harm or injury, swing simultaneously at one another with varying degrees of success — one breaking the other’s nose for example, and the second merely inflicting a bruise. I would find it incongruous to hold, on the strength of Jobidon, that the consent of only one of these willing combatants is vitiated, though both intended to cause bodily harm and both pursued their shared objective with equal force and determination.

29 In mentioning these concerns, I do not wish to be taken to favour the adoption in Canada of the rule laid down by the English Court of Appeal in Attorney General’s Reference (No. 6 of 1980), [1981] 2 All E.R. 1057, which is set out by Charron J. at para. 11 of her reasons. The importation of that common law rule, even as modified in the passage I have cited for Jobidon, raises difficult issues that we are not required, nor even invited, to consider afresh in this case. I refer in this regard to the reasons of Sopinka J. in Jobidon, concurring in the result but on different grounds.

II

30 The trial judge acquitted the appellant in virtue of s. 34(1) of the Criminal Code, which reads:

34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

31 The Saskatchewan Court of Appeal set aside the appellant’s acquittal at trial on two grounds: first, that the trial judge overlooked the unprovoked assault requirement of s. 34(1); second, that he erred in law with respect to the meaning of “grievous bodily harm” in that provision.

32 Like Charron J., I agree with the conclusion of the Court of Appeal on the first point and, as to the governing principles, expressly adopt my colleague’s analysis at para. 20 of her reasons. In my respectful view, the appellant’s acquittal at trial must be set aside on this ground alone.

III

33 On the second point, the trial judge concluded that the appellant intended to cause Mr. Bauck serious bodily harm and that he, in fact caused Mr. Bauck’s death. This was an understandable, if not inevitable, conclusion.

34 In this regard, the trial judge stated:

. . . I have found, just as the trial judge did in Jobidon, that both combatants to this fight intended to cause the other bodily harm that was serious and not trivial, and that, in fact, serious harm did occur.

35 The trial judge nonetheless concluded that the appellant, while intending to cause the deceased serious bodily harm, did not intend to cause him “grievous bodily harm” within the meaning of s. 34(1) of the Criminal Code.

36 Section 2 of the Criminal Code defines “bodily harm” as

any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.

“Grievous bodily harm” is nowhere defined in the Code.

37 Dealing with this aspect of the matter, Gerwing J.A., in delivering the reasons of the Court of Appeal, stated (at para. 12):

Another reason that the application of s. 34(1) is inappropriate, in our view, is that for it to apply it must be shown that the respondent did not use force that was intended to cause grievous bodily harm. The Crown urged us to accept a definition from R. v. Bottrell (1981), 1981 CanLII 339 (BC CA), 60 C.C.C. (2d) 211 (B.C.C.A.), defining “grievous bodily harm” as “serious hurt or pain”. Similar comments were made by the Alberta Court of Appeal in R. v. Martineau (1988), 1988 ABCA 274, 89 A.R. 162; 43 C.C.C. (3d) 417 (C.A.). While there may be a nuance in “grievous” beyond serious, it having been defined sometimes as “very serious”, if any such difference existed here, the trial judge did not indicate what it was and it seems on the facts impossible to find it. He concluded that the respondent intended to inflict “serious harm” and indeed did do so. The inflicting of a hard blow leading to someone falling on the pavement and his head bouncing on it, followed by no reaction on the part of the fallen person with two further blows to the head, all facts found by the trial judge, lead to the conclusion that in this case, at least, the serious bodily harm is the same as “grievous bodily harm” under s. 34(1). Any other conclusion, based on the judge’s fact finding, again would not meet the standard of Yebes.

38 The appellant submits that the Court of Appeal erred in applying to this case the standard of review set out in R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, both here and in dealing with the issue of provocation. With respect, I agree. Yebes dealt with the powers of a court of appeal under s. 686(1)(a)(i) of the Criminal Code. That provision empowers the court, on an appeal against a conviction, to set aside the verdict if it is “unreasonable or cannot be supported by the evidence” and the governing test is “whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered” (Yebes, at p. 186). The Criminal Code, however, does not vest in courts of appeal any equivalent or analogous power on an appeal by the Crown against an acquittal, as in this case: the Crown, respondent in this Court, was the appellant in the Court of Appeal.

39 Mr. Paice, the appellant in this Court, contends that the Court of Appeal erred as well in substituting its own view of the evidence for that of the trial judge. I see no merit in this submission.

40 Finally, Mr. Paice urges us to find that the trial judge understood, and applied correctly, the notion of “grievous bodily harm” contemplated by s. 34(1) of the Criminal Code. Considering the trial judge’s reasons as a whole, I am not persuaded that he did. I find it unnecessary, however, to express a decided view on this branch of the matter, since I have concluded that a new trial must in any event be had because the trial judge failed to consider whether the appellant was assaulted by the victim “without having provoked the assault”, as required by s. 34(1).

41 For the guidance of the judge who will preside at the appellant’s new trial, I nonetheless believe it helpful to add that “grievous bodily harm”, within the meaning of ss. 34 and 35 of the Criminal Code, is not limited to harm or injury that is permanent or life-threatening. In ordinary usage, “grievous” bodily harm means harm or injury that is “very severe or serious”: see The Canadian Oxford Dictionary (2nd ed. 2004), at p. 664. These terms respect the statutory context in which that expression was adopted by Parliament in the relevant provisions of the Code.

IV

42 I am satisfied that the trial judge, but for the first of the two errors of law identified by the Court of Appeal, might very well have reached a different conclusion.

43 Accordingly, as mentioned at the outset, I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: McDougall Gauley, Regina.

Solicitor for the respondent: Attorney General for Saskatchewan, Regina.

Solicitor for the intervener: Attorney General of Ontario, Toronto.