SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CR-10-934
DATE: 2012-10-24

RE: R. v. AZEVEDO

BEFORE: Honourable Justice Timothy Ray

COUNSEL:
Counsel for the Crown, Terry James

Counsel, for the defendant, Norm Boxall

HEARD: October 18, 19, and 22, 2012

JURY CHARGE RULING

[ 1 ] This involves a portion of a jury charge following a 10 day trial on 2 counts: Manslaughter (unlawful act), and assault. I ruled on this issue during the pre-charge conferences, and gave very brief oral reasons. This brief written endorsement reflects and slightly expands my ruling. The jury has been charged and is currently deliberating.

[ 2 ] The charges arise out of an incident at Wilderness Tours Resort near Pembroke in the early hours of August 1, 2010. Following an argument between guests, the accused punched 2 individuals. One died, and the other suffered minor injuries and was knocked unconscious.

[ 3 ] The unlawful act alleged is assault. The standard Watt’s charge requires an instruction concerning consent (Final 266). The Ontario Court of Appeal in R v McDonald , [1] held that consent must be left with the jury, and instructed that consent is vitiated only when the accused intended to cause serious bodily harm. The court found that the trial judge had failed to properly instruct the jury on consent, although the trial judge had instructed the jury that consent was not an issue for aggravated assault, but was an issue for the included offence of assault. The jury convicted on aggravated assault. The court referenced R v Paice [2] and R v Quashie [3] as authority for this holding. The jury verdict was set aside and a new trial ordered.

[ 4 ] The first issue is whether I must instruct the jury to consider ‘serious bodily harm’ or ‘bodily harm’ in order to determine whether consent is vitiated. The defence contends that as a result of this holding that I must instruct the jury that it must consider consent unless it finds beyond a reasonable doubt that the accused intended to cause serious bodily harm. The Crown contends that can’t be so; and that the authorities relied upon in R v McDonald do not raise the threshold from bodily harm to serious bodily harm.

[ 5 ] The next issue is – what is serious bodily harm. ‘Bodily harm’ is defined in the Code and “means 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” [4] . ‘Serious bodily harm’ is not defined in the Code. While that term is not defined in the Code it has been defined for the purpose of a different section. If the jury is to be instructed on ‘serious bodily harm’, the question is whether the jury should be instructed on the code definition of bodily harm and then instructed to use their own sense of ‘serious bodily harm’.

[ 6 ] Professor Hamish Stewart has noted that the vitiation of consent to assault is a public policy determination. [5] He observes that different jurisdictions have adopted different thresholds. Specifically he compares England, France, the United States of America, and Canada insofar as the different policy applications and notes that in all jurisdictions “consent is not a defence to the intentional infliction of serious bodily harm, unless the serious bodily harm is intentionally inflicted in the course of an activity that is socially recognized as lawful or valuable” which he says might include rough sports. Implicitly a bar room brawl or drunken fist fight would not be socially recognized as lawful or socially valuable.

[ 7 ] Justice Gonthier in R v Jobidon , [6] concludes, after a detailed review of the jurisprudence including English law, that the standard or threshold for vitiation of consent is “ minor hurt or trivial bodily harm ” - equivalent to the test for ‘bodily harm’ as defined in the Code. [7] The Supreme Court of Canada again considered this issue in R v Paice [8] but in the context of a defence of self defence and defined the threshold as “serious harm both intended and caused” [9] for consent to be vitiated. The court said it was reaffirming R v Jobidon . In R v. Quashie , [10] the Ontario Court of Appeal ordered a new trial based on misdirection of 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.” [11] The court held that the instruction was not in accordance with R v Jobidon , and referenced “ serious harm both intended and caused ” [12] . These decisions are followed by R v McDonald [13] , which unequivocally held that the threshold for vitiation of consent is “serious bodily harm”, not bodily harm as defined in the Code.

[ 8 ] While I have a good deal of sympathy with the Crown’s position since some of the authorities seem to have treated serious harm, serious bodily harm, and even bodily harm as synonymous terms, the Court of Appeal in R v McDonald makes it clear that the threshold for vitiation of consent is “serious bodily harm”. I therefore consider myself bound to instruct the jury accordingly on the issue of the vitiation of consent.

[ 9 ] The term “serious bodily harm” is not defined in the Code. It was however defined in R v McGraw [14] as “ hurt or injury that interferes in a grave or substantial way with the physical integrity or well-being of the person ” [15] . Justice Cory notes the Code definition of “bodily harm” and considers the dictionary definition of “serious”. He then expands that definition: In summary the meaning of” serious bodily harm” for the purposes of the section is any harm whether physical or psychological, that interferes in a substantial way with the physical or psychological health or well-being of the complainant.” [16] .

[ 10 ] I conclude that the jury is to be instructed on the code definition of bodily harm [17] , instructed on the initial definition of serious bodily harm noted above [18] , and then instructed that the word ‘serious’ is to be given its ordinary meaning, and that it is for them to decide.

Honourable Justice Timothy Ray

Date: October 24, 2012

COURT FILE NO.: CR-10-934

DATE: 2012-10-24

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – JERRY AZEVEDO ENDORSEMENT T.D. RAY J.

Released: October 24, 2012

[1] 2012 ONCA 379 at paragraph 28

[2] 2005 SCC 22 , [2005] 1 SCR 339

[3] 2005 23208 (ON CA) , [2005] O.J. No. 2694 (CA)

[4] Criminal Code of Canada, RSC 1985, Chap. C-46 as amended, Section 2.

[5] The Limits of Consent and the Law of Assault , Hamish Stewart.(2011) 24 Can. J.L. & Juris. 205-223, @ paragraph 26

[6] 1991 77 (SCC) , [1991] 2 S.C.R. 714 @para 129.

[7] Ibid note 4.

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

[9] R v Paice, para 18 per Charron, J.

[10] 2005 23208 (ON CA) , [2005] O.J No. 2694 (C.A.),

[11] Ibid, Para 57

[12] Ibid, Para 18

[13] Note 1.

[14] 1991 29 , [1991] 3 SCR 72

[15] Ibid, 1991 29 @ page 6 of 10

[16] Ibid page 7 of 10.

[17] As per note 4.

[18] As per note 15.