R. v. Azevedo, (2012) O.J. No. 6249

R. v. Azevedo, [2012] O.J. No.
6249
Ontario Judgments
Ontario Superior Court of Justice

T.D. Ray J.
Heard: October 18, 19, and 22, 2012.
Judgment: October 24, 2012.
Court File No. CR-10-934
[2012] O.J. No. 6249 | 2012 ONSC 6052 | 104 W.C.B. (2d) 1076 | 2012 CarswellOnt
16714
RE: R., and Azevedo
(10 paras.)
Counsel
Counsel for the Crown, Terry James.
Counsel, for the defendant, Norm Boxall.
JURY CHARGE RULING
T.D. RAY J.
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
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R. v. Azevedo, [2012] O.J. No. 6249
convicted on aggravated assault. The court referenced R v Paice2 and R v Quashie3 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 Paice8 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 McDonald13, 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
McGraw14 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"
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R. v. Azevedo, [2012] O.J. No. 6249
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 harm17, instructed
on the initial definition of serious bodily harm noted above18, and then instructed that the word
'serious' is to be given its ordinary meaning, and that it is for them to decide.
T.D. RAY J.
1 2012 ONCA 379 at paragraph 28.
2 [2005] 1 S.C.R. 339.
3 [2005] O.J. No. 2694 (C.A.).
4 Criminal Code of Canada, R.S.C. 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] 2 S.C.R. 714 @ para. 129.
7 Ibid note 4.
8 R. v. Paice, [2005] 1 S.C.R. 339.
9 R v Paice, para 18 per Charron, J.
10 [2005] O.J. No. 2694 (C.A.).
11 Ibid, Para 57.
12 Ibid, Para 18.
13 Note 1.
14 1991 CanLII 29, [1991] 3 S.C.R. 72.
15 Ibid, 1991 CanLII 29 @ page 6 of 10.
16 Ibid page 7 of 10.
17 As per note 4.
18 As per note 15.
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R. v. Azevedo, [2012] O.J. No.

Ontario Superior Court of Justice

Counsel for the Crown, Terry James.

Counsel, for the defendant, Norm Boxall.

JURY CHARGE RULING

7 Justice Gonthier in R v Jobidon,6 concludes, after a detailed review of the jurisprudence

1 2012 ONCA 379 at paragraph 28.

2 [2005] 1 S.C.R. 339.

3 [2005] O.J. No. 2694 (C.A.).

4 Criminal Code of Canada, R.S.C. 1985, Chap. C-46 as amended, Section 2.

6 [1991] 2 S.C.R. 714 @ para. 129.

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

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

10 [2005] O.J. No. 2694 (C.A.).

11 Ibid, Para 57.

12 Ibid, Para 18.

14 1991 CanLII 29, [1991] 3 S.C.R. 72.

15 Ibid, 1991 CanLII 29 @ page 6 of 10.

16 Ibid page 7 of 10.

18 As per note 15.

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