R+c+Jobidon

Jobidon – accused, appellant Rodney Haggart – 25-year old victim
 * //__ R. c. Jobidon __//**__ (1991) SCC __


 * Facts:** Jobidon was charged with manslaughter, via the offence of assault in the aftermath of a fist fight that started in a bar. When asked to leave the bar, the accused waited for the victim to come outside and the men fought in front of a crowd. Both men had drank but Jobidon was not inebriated when he struck the victim on the head with his fist and knocked him backwards onto a car hood. At this point, the judge concluded that the victim had lost consciousness and was “dans les pommes”. Jobidon continued to strike the victim on the head such that the victim rolled off the hood where he lay limp. He died after being taken to the hospital.

The trial judge found that Jobidon did not have the intention to kill the victim nor to gravely injure him, that Jobidon believed that Haggart had consented to an honest fight.


 * Judicial history:** The accused was found not guilty of manslaughter at trial where the judge held that the victim’s consent to a “fair fight” negated assault and added that the accused had not been criminally negligent. The ON Court of Appeal set aside the acquittal and substituted a guilty verdict on the charge of manslaughter.


 * Issue:** At issue is the role of consent in the criminal offence of assault. Are there common law limitations which restrict or negate the legal effectiveness of consent as a defence in certain types of cases? Yes
 * Holding: ** Appeal dismissed.

-assault originally came to Canada as a crime of the common law and is a constituent element of many crimes -generally speaking, an essential feature of assault is that it occurs against the victim’s will, without consent --- created corresponding defence that consent was given -even after Canada gained its first criminal code in 1893, the definition of assault remained identical to the English common law version -assault was given its first statutory manifestation in the //The Criminal Code//. A key change occurred upon Bill C-127 in 1976 which amended the provision on assault, most notably in s.244(4) where it codified the traditional common law view that an honest belief by the accused that the complainant had consented to an application of force was a good defence to assault
 * Reasoning:** (Gonthier J)
 * 1) Evolution of the offence of assault in Canadian Criminal law:

-the connection between the two offences is seen in s.222 of the //Code//: s.222(5) A person commits culpable homicide when he causes the death of a human being -a) by means of an unlawful act (note that assault is an unlawful act and the provisions are found in s.265) -**When an assault is committed and causes the death of a person, the assailant is criminally liable for manslaughter. If consent acts as a defence to assault, it will indirectly act as a defence to a charge of manslaughter based on assault.** -the state of the law on this matter is conflicting -s.265 on assault sets out a general rule that one cannot commit assault if another agrees to the application of force -however, it does not define the situations or forms of conduct which the law will recognize as being valid objects of consent for the purpose of the offence -the traditional common law rule is that fraudulently induced consent is legally ineffective -s.8 of the Code indicates that the common law rules continue to apply but only to the extent that they are not inconsistent with the Code or other Act of Parliament – if there is clear language in the Code, that displaces the common law (not the case here) __ *The relationship between the Code and the common law of assault in cases of fist fights: __ -Jobidon argued that the 1983 amendments to s.265 override the common law in setting out 4 factors that may vitiate consent: application of force, threats of force, fraud, or the exercise of authority. -This argument must be discarded – Parliament did not intend to remove the existing body of common law by listing the four vitiating factors but just spelled them out more clearly -The common law is expansive in that it provides a general rule that consent would only be valid (legally effective) if it was given freely by a rational and sober person; a fraudulently obtained consent was considered to be no consent at all -the common law displayed a preference for limiting the role of consent as a defence – for public policy reasons, there are limitations on the extent of harmful conduct to which one may validly consent and therein bar conviction for assault -codification reflected the common law principles of criminal responsibility -irrespective of a finding of real or implied consent, the victim’s consent is quite irrelevant due to policy considerations which are fact-specific in nature -the common law is the register of the balancing function of the courts – which the Parliament has authorized to administer in respect of policy-based limits on the role and scope of consent in s.265 -the law is limited as to when it will vitiate consent on policy grounds -one situation is a weaponless fight among adults as in the instant case -the common law will not affect the validity or effectiveness of freely given consent to participate in rough sporting activities so long as the intentional applications of force to which one consents are within the customary norms of the game. (Unlike fist fights, sports have a significant social value)
 * 1) Nexus between assault and manslaughter (Jobidon was convicted of the latter)
 * 1) Role and Scope of Consent in Assault


 * Ratio: The limitation demanded by s.265 is that it vitiates consent between adults who intentionally apply force causing serious harm in the course of a fist fight or brawl. Consent cannot be used as a defence for the offence of assault here.**

Sopkina J : -Agrees with the holding but not the reasons. -Consent cannot be read out of the offence for 2 reasons: 1.consent is a fundamental element of many criminal offences, including assault: Parliament chose to extend defence of consent to all assaults save murder in the interest of making this part of criminal law certain. Why should the courts rule for the vitiation of consent in only some instances of assault. 2. the statutory provision creating the offence of assault explicitly provides for the element of consent - Section 265 states that "[a] person commits an assault when __without the consent of another person__, he applies force intentionally to that other person. . . ." - The absence of consent cannot be swept away by judge-made policy. This is confirmed by s.9a of the Code with reference to the essential elements of a criminal offence - “[n]otwithstanding anything in this Act or any other Act, no person shall be convicted. . . (//a//) of an offence at common law". The effect of the majority reasoning is to create an offence by application of the common law where one does not exist under the terms of the //Code//. Type in the content of your page here.