



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zhao, 2013 ONCA 293

DATE: 20130503

DOCKET: C54572

Laskin, Juriansz and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jian Zhao

Appellant

Michael Davies, for the appellant

Lisa A. Joyal, for the respondent

Heard: September 21, 2012

On appeal from the conviction entered on April 21, 2011 and
    the sentence imposed on May 11, 2011 by Justice Denis J. Power of the Superior
    Court of Justice, sitting with a jury.

Tulloch J.A.:

A.

Overview

[1]

The
    appellant was charged with sexual assault causing bodily harm and forcible
    confinement. Following a trial composed of a judge and jury, he was found
    guilty of the charge of sexual assault causing bodily harm and acquitted of the
    charge of forcible confinement. The appellant appeals from his conviction.

[2]

The
    main issue on appeal is whether the trial judge properly instructed the jury on
    the law with respect to the role of consent in sexual assault causing bodily
    harm; and more specifically, whether the trial judge followed this courts
    decision in
R. v. Quashie
(2005), 198 C.C.C. (3d) 337 (Ont. C.A.).

[3]

The
    appellant also seeks leave to appeal his sentence.

[4]

For
    the reasons that follow, I conclude that the trial judge erred in not following
    this courts decision in
Quashie
and charging the jury that in order
    to convict the appellant on the charge of sexual assault causing bodily harm,
    they must first find that the appellant both intended to cause bodily harm to
    the complaint and that bodily harm resulted, thus vitiating the defence of
    consent to the bodily harm aspect of the charge. Accordingly, I would allow the
    appeal, quash the conviction and order a new trial. In light of the disposition
    I would order on the conviction appeal, it is not necessary that I address the
    sentence appeal.

B.

background

(a)

The Facts

[5]

On
    January 10, 2009, the complainant, a musician, who also works in the field of
    holistic medicine, went out on a date with a male co-worker.  After dinner,
    they then proceeded to another establishment where they had dessert and then
    attended at a live music venue. They stayed there only briefly, after which
    they attended at another night club.

[6]

The
    complainant decided to end her date with her co-worker early because he became
    jealous about her interaction with others. After parting company, she went to
    the bar and had a glass of water.

[7]

Up
    to this point, the complainant testified that she had consumed two glasses of
    wine with dinner, two glasses of champagne with dessert, and half of a double
    gin and soda at the night club. In her view, this was more alcohol than she would
    normally drink. She described herself as intoxicated. She believed she was not
    slurring or stumbling, but she acknowledges that she was having some difficulty
    with her memory of the events.

[8]

The
    complainant estimated that it was about 1:00 a.m. when she left the night club
    to hail a taxi. However, when she went outside, she was attracted to the sound
    of a man playing a guitar and singing. She lingered a while and started to sing
    along.

[9]

Shortly
    thereafter, as she was about to hail a taxi again, she encountered the
    appellant. She had not met him before. She testified that this was a little
    blurry but that the appellant approached her and initiated a conversation. She
    recalls they talked about music, martial arts and Buddhism. The appellant
    invited her back to his apartment. The complainant indicated that she was
    feeling vulnerable, having broken off her date earlier, but was also nonchalant
    and social. She did not see the appellant as a threat. At about 1:30 a.m. she
    accompanied the appellant to his apartment by taxi. They conversed during the cab
    ride. However, when they arrived at the appellants building, the complainant
    became apprehensive.

[10]

The complainant
    indicated that she should have just taken the cab home but that the appellant
    persuaded her to come inside instead. They walked up two flights of stairs to
    the appellants apartment where he lived with his mother. The appellants
    mother was present in her bedroom with the door open. The complainant saw her
    watching television.

[11]

The complainant
    and appellant first went to the kitchen, where the appellant poured them each a
    red-coloured alcoholic cooler beverage. They drank those beverages, after
    which the complainant requested a telephone, which she used to attempt to call
    friends to advise them of where she was. She did not speak to anyone directly
    but left a message for her boss.

[12]

After going
    briefly to the laundry room and seeing the appellants Buddhist shrine, the
    complainant asked if they could listen to some music. The appellant indicated
    they could in his room.

[13]

They then went
    to his room. There they engaged in some dancing and play fighting, which the
    complainant described as harmless and flirtatious. The complainant indicated
    that they then started making out while lying on the floor. During this time
    they did not exchange words, and at some point the complainants shirt was
    removed. Thus far, the complainant testified that the activity was consensual 
    she was not resisting.

[14]

The appellant
    then left the room wearing shorts and returned with his shorts removed and with
    a condom in his hand. He closed the door. At this point the complainant said something
    in her was triggered by the sight of the condom. She testified that she did
    not want to participate in any activity that involved a condom.

[15]

She indicated
    that her recollection of what happened next became disjointed and hazy like if
    you were to take some cards and just kind of flash them, thats sort of what
    this part feels like.

[16]

It should be
    noted at this point that the complainant suffered from Post-Traumatic Stress
    Disorder (PTSD) stemming from a sexual assault that had occurred exactly one
    year earlier. The complainant testified that this may have influenced her
    flashy memory of the incident with the appellant and her inability to recall
    certain things immediately following the event, such as the condom. However,
    portions of her memory returned after subsequent therapy.

[17]

She indicated
    that once the appellant returned to the room with the condom, she retreated
    into a corner of the room near a window and got into a defensive stance,
    crouched down, with her hands in front of her face. She indicated that he came
    towards her. She made a move towards the door and he grabbed her underwear from
    behind. This action caused her underwear to rip and made her fall forward onto
    his mattress. She testified that he then pinned her down on her back on the
    floor with one of his hands on her throat and one on her face, with his legs
    around her. She thought he was going to kill her, and she panicked. She wanted to
    get away. She again tried to move towards the door. He continued to grab at her
    underwear and she repeatedly said to him stop, please, please, please stop.
    She then began to scream for help, as loud as [she] possibly could. The
    complainant testified, [a]s soon as I started screaming, thats when he
    started to strangle me.

[18]

While the
    complainant could not remember whether the appellant penetrated her, she
    believed he attempted to do so as he was trying to force his groin into hers.
    She was not aware whether he had put the condom on.

[19]

He then began
    repeating I love you over and over. She responded by saying this back to him
    in an attempt to calm him down, and loosen his grip. This appeared to the
    complainant to have had the desired effect, as the appellant loosened his grip,
    at which point the complainant managed to get away.

[20]

When the
    complainant tried to open the door she realized it was locked and in a panic,
    she bruised her hand trying to pull it open. As she described it, she then
    started to freak out. She continued to scream for help and demanded to be let
    out of the room. She began to look around the room for anything she could use
    as a weapon. She saw her own belt, with a heavy buckle, and began to try to hit
    the appellant with it. She believed the appellant appeared shocked or scared
    and he then started to unlock the door. She indicated that he said, Im trying
    to open the door, and once he got it open, he yelled at her to get out. She
    attempted to gather some of her clothing, including her shirt and her ripped
    underwear and ran out of the room.

[21]

As she ran from
    the room, she began hyperventilating. She saw the appellants mother who
    gestured to her to be quiet and led her to her shoes at the door of the
    apartment. During this time, the complainant was repeating, Please help me.
    Please help me.

[22]

The complainant
    then ran out of the building and down the street screaming for help. In a
    hysterical state, she came upon a snow
plow
operator. He
    called the police. When the police arrived, they found the complainant lying,
    still hysterical, in a snow bank. By this time, it was about 5:00 a.m. An
    officer assisted her into his police cruiser and eventually calmed her down so
    that she could recount what happened. The complainant directed the officer back
    to the appellants building. She became hysterical again when the appellant
    came out onto the street, where he was arrested by the police. A police officer
    then took the complainant to the hospital.

[23]

From photographs
    taken by the police, the complainant identified at trial physical injuries she
    sustained during this incident, including some bleeding from her right earlobe
    where a large earring had been removed during the incident. In addition, she
    suffered some bruising on her neck, shoulders, arms, wrist, knuckles, and shin,
    and a scratch on her breast. She identified bruising on her palm from trying to
    open the locked door. She also described bruising around her mouth that did not
    show up until shortly after the incident. This particular injury prevented her
    from going to work for two days. Finally, she testified that as a result of
    this incident she also suffered from PTSD and was counselled for three months
    at a womens shelter, as well as by a doctor. She indicated that the symptoms
    of the PTSD included nightmares, insomnia, fear of men, anxiety, panic attacks,
    dissociation with her own body, shortness of breath, an inability to speak and
    feelings of victimization.

(b)

The Trial Proceeding

[24]

The appellant elected
    to have a preliminary inquiry and a trial composed of a judge and jury.

[25]

At the end of
    the complainants testimony in-chief, the Crown elicited evidence from her that
    she had been sexually assaulted previously by her then boyfriend, by
    coincidence exactly one year earlier, on January 11, 2008. This incident was
    the subject of a successful s. 276 application in which the defence was granted
    leave to cross-examine the complainant on this prior sexual activity, but only
    with respect to the issue of the state of mind of the complainant and any
    possible confusion or mixing of the two events.

[26]

At the
    conclusion of the Crowns case, the defence brought a motion for a directed
    verdict with respect to the bodily harm element of the sexual assault causing
    bodily harm charge. Defence counsel submitted at trial that the bruising
    depicted and described by the complainant was not beyond the transient or
    trifling standard required by the definition of bodily harm in the
Criminal
    Code
, R.S.C. 1985, c. C-46. The defence acknowledged that bodily harm can
    include psychological harm. While the complainant indicated that she suffered
    from PTSD and was counselled for that condition over a period of time, the
    defence submitted that the mere fact that one attends counselling is not
    evidence that one has suffered psychological harm.

[27]

The trial judge
    dismissed this application to withdraw the element of bodily harm from the
    jury. The trial judge listed the physical injuries, and the complainants
    self-reported psychological symptoms of PTSD. He noted that only one of the
    alleged harms suffered must be more than transient or trifling, and need not
    necessarily be supported by medical evidence. On this basis, the trial judge
    concluded that there was evidence, if believed, that could result in a finding
    of guilt on the charge of sexual assault causing bodily harm.

[28]

The appellant
    elected not to call any evidence.

[29]

In pre-charge
    submissions, defence counsel at trial argued that the jury instructions and the
    written decision tree that was to be provided to the jury should include
    instructions on the lack of consent that is required for a conviction on sexual
    assault causing bodily harm, just as required in sexual assault
simpliciter
.
    Counsel made these submissions with reference to this courts decision in
Quashie
.
    Counsel argued that the jury should be instructed on the basis of the standard
    instructions for sexual assault, and simply add to that an instruction on
    bodily harm.

[30]

The Crown
    responded with reference to
R. v
.
Jobidon
, [1991] 2 S.C.R.
    714, and argued that the law is clear that a person cannot consent to the
    infliction of bodily harm. The Crown argued that, in any event, there was
    evidence that the appellant intended to cause bodily harm. Therefore, this case
    could be  distinguished from
Quashie
because the intention to cause
    bodily harm was present. Moreover, while the decision tree that was to be given
    to the jury did not contain a question on consent, the proposed instructions to
    the jury made reference to the requirement that they be satisfied that the appellant
    had assaulted the complainant. This included an instruction on assault being a
    wilful application of force on the complainant against her will, which includes
    the concept of a lack of consent.

[31]

The trial judge
    ruled that he would provide the jury with the decision tree from
Watts
    Manual of Criminal Jury Instructions
(Toronto: Thomson Carswell,  2005) which
    does not include a question requiring a finding of a lack of consent on the
    charge of sexual assault causing bodily harm.
[1]

[32]

In his charge to
    the jury, the trial judge explained the essential elements of sexual assault
    causing bodily harm:

Now, let me give you an explanation of what the relevant law is
    with respect to the charge of sexual assault causing bodily harm. The essentials
    are as follows: for you to find Mr. Zhao guilty of sexual assault causing bodily
    harm, Crown counsel must prove each of these essential elements, and counsel
    must prove it beyond a reasonable doubt. First, that Mr. Zhao intentionally
    applied force to [the complainant]; so the intentional application of force.
    Secondly, that the force that Mr. Zhao intentionally applied caused bodily harm
    to [the complainant]. Thirdly, that the force that Mr. Zhao intentionally
    applied took place in the circumstances of a sexual nature.

[33]

The trial judge
    also instructed the jury on the definition of assault, as it is set out in the
Criminal
    Code
, which includes the element of the absence of consent:

A person commits an assault when without the consent of another
    person he applies force intentionally to that person directly or indirectly.

[34]

Again, the trial
    judge mentioned indirectly the element of consent when he said:

The force applied may be violent or it may be gentle. To be an
    assault, however, Mr. Zhao must apply the force intentionally and
against
    [the complainant]s will
. [Emphasis added.]

[35]

The trial judge
    then proceeded to instruct the jury at greater length in relation to the three
    elements: intentional application of force, causation of bodily harm and the
    circumstances of a sexual nature. During this line of instruction, the trial
    judge did not direct the jury on the need to decide whether the Crown had
    proven a lack of consent beyond a reasonable doubt.

[36]

By contrast,
    later in his instructions, when dealing with the included offences of sexual
    assault or assault, the trial judge began his instructions in the following
    terms:

I told you there were included offences, so the offence about
    which we are talking now, sexual assault causing bodily harm; but there [are]
    two included offences. If you find the accused not guilty on that charge, nevertheless
    you could still find him guilty on assault or sexual assault.

Now with regard to the charges of assault, or sexual assault, I
    must deal with the defence, which is consent. The position of the accused is
    that the assaults, or sexual assaults, were consensual in nature. Now, let me
    explain the law with respect to consent.

[37]

The trial judge then
    gave further instructions on the issue of consent. It is important to note that
    the trial judge did receive submissions and made a pre-charge ruling that there
    was an air of reality on the issue of consent and apprehended consent, and that
    he would be giving instruction on those issues to the jury. It is also
    important to note, for the purpose of the legal analysis in this case, that the
    trial judge instructed on the foreseeability of harm in the following terms:

Now, Crown counsel does not have to prove that Mr. Zhao meant
    to cause bodily harm of this or any kind to [the complainant] by the force that
    he allegedly intentionally applied. What Crown counsel has to prove, however,
    is that a reasonable person in the circumstances would inevitably realize that
    the force he was applying would put [the complainant] at risk of suffering some
    kind of bodily harm, although not necessarily serious bodily harm or the precise
    kind of harm that she may have suffered here.

[38]

The trial judge
    made no mention of consent as an available defence until he began instructing
    the jury on sexual assault
simpliciter.

[39]

Without being
    instructed to consider whether the appellant subjectively intended to cause her
    bodily harm, the jury returned verdicts of guilty to the charge of sexual
    assault causing bodily harm.

[40]

Finally, albeit
    in his sentencing decision, the trial judge found in this case:

The physical injuries were not severe on any scale of severity.
    The psychological injuries are, of course, very, very serious.



This is not a situation in which the convicted person, Mr.
    Zhao, employed gratuitous cruelty or degradation towards the victim.

(c)

Positions of the
    Parties

[41]

Essentially, the
    appellant argued only one issue in his conviction appeal: that the trial judge
    erred in failing to give the jury instructions with respect to consent on the
    charge of sexual assault causing bodily harm. He argues that while the trial
    judge relied upon
Watts

Manual of Criminal Jury Instructions
,
    those instructions were based on this courts previous decision in
R. v.
    Welch
(1995), 25 O.R. (3d) 665, which presumes that consent is not
    available as a defence to sexual assault causing bodily harm. Instead, the
    appellant submits the trial judge ought to have given instructions in
    accordance with this courts more recent decisions in
Quashie
and
R.
    v. McDonald
, 2012 ONCA 379, 95 C.R. (6th) 210, both of which have
    clarified and qualified the relevance of consent in both sexual assault causing
    bodily harm and assault, respectively.

[42]

The appellant
    submits that these authorities stand for the proposition that consent is
    available as a defence in charges of assault causing bodily harm and sexual
    assault causing bodily harm, unless the Crown proves beyond a reasonable doubt
    that:

(i)      the accused subjectively intended to cause
    bodily harm;
and

(ii)      the accused caused bodily harm.

[43]

The respondent
    takes the position that the trial judge did not err in his instructions to the
    jury and that the appeal against conviction should be dismissed.

[44]

The respondent
    argues that the trial judges instructions to the jury with respect to the
    intentional application of force actually required the jury to find as a fact
    that the complainant had not consented to the appellants intentional
    application of force.

[45]

The respondent
    concedes that the trial judge in this case did not instruct the jury in
    accordance with
Quashie
. However, the trial judge did provide the jury
    with the definition of assault, which included the absence of consent.
    Moreover, when describing the intentional application of force, the trial judge
    indicated that it must be against the will of the complainant, implicitly
    requiring them to find that it was without consent. In addition, the respondent
    also argued that, in this case, the element of consent was not explicitly
    removed from the instructions. Accordingly, this distinguishes the present
    appeal from other cases overturned on that basis. Finally, even if this court rejects
    these submissions, the respondent asks this court to consider applying the
    curative proviso in this case.


C.

Legal Analysis

(a)

Relevant Statutory Provisions

[46]

In section 265(1)
    of the
Criminal Code
, assault is defined in the following terms:

(1)     A person commits an assault when

(a)     without the consent of another person, he
    applies force intentionally to that other person, directly or indirectly;

[47]

From a plain
    reading of subsection 265(2), there is little doubt that Parliament originally
    intended all aspects of assault defined in s. 265, to apply to all forms of
    assault, including assault causing bodily harm:

(2)     This section applies to all forms of assault,
    including sexual assault, sexual assault with a weapon, threats to a third
    party or causing bodily harm and aggravated sexual assault.

(b)

Jurisprudence

[48]

I will now
    review the relevant case law, to show how courts have interpreted and applied
    the role of consent as an element to the charges of assault causing bodily harm
    and sexual assault causing bodily harm.

(i)

1991: The Supreme Court of Canadas Decision in
Jobidon

[49]

The Supreme
    Court of Canadas decision in
Jobidon
is the leading authority on the
    vitiation of consent in circumstances of an assault causing bodily harm. In
Jobidon
,
    the Supreme Court drew inspiration from an earlier holding made by the English
    Court of Appeal in
Attorney Generals Reference (No. 6 of 1980)
,
    [1981] 2 All E.R. 1057 (C.A.).

[50]

At p. 1059, the
    English Court of Appeal held that:

[I]t 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.]

[51]

However, in
Jobidon
,
    the Supreme Court chose to differ slightly from the approach taken by the
    English Court of Appeal in
Attorney Generals Reference (No. 6 of 1980)
.
    Jobidon and the victim, Haggart, engaged in a fight that began in a bar and
    continued in a parking lot. Both men had agreed to fight one another. Indeed,
    the trial judge found that neither departed intentionally from the kind of
    fight to which they had consented. During the fight, Jobidon hit Haggart in the
    head, rendering him unconscious and continued to hit him four or six more times
    before realizing what had happened. Haggart fell into a coma and died of severe
    contusions to the head due to one or more of these blows.

[52]

Jobidon was
    acquitted of the charge of manslaughter through the offence of assault, because
    the trial judge found that Haggarts consent acted as a defence. This court,
    sitting as a five-judge panel, unanimously overturned the acquittal and substituted
    a guilty verdict based on their conclusion that limits existed with respect to
    the availability of consent in the context of a consensual fight.

[53]

The Supreme
    Court dismissed the appeal and held that there is a common law limitation on
    the defence of consent in the context of consensual fights where bodily harm is
    both

intended and caused. Gonthier J., writing for the majority,
    conducted a meticulous review of the English and Canadian case law on the
    subject. He concluded that this limitation qualified s. 265(1)(a) of the
Criminal
    Code,
which states that an assault occurs when, without the consent of
    another person, he applies force intentionally to that other person, directly
    or indirectly. Specifically, he found that the
Criminal Code
did not
    oust the public policy-based nullification of the defence of consent in the fight
    cases.

[54]

At pp. 720 and
    725, Justice Gonthier articulated the principal legal issue:

[W]hether absence of consent is a material element which must
    be proved by the Crown in all cases of assault or whether there are common law
    limitations which restrict or negate the legal effectiveness of consent in
    certain types of cases.

[55]

At p. 746, Gonthier
    J. observed that [l]imits on consent to assault have long been recognized by
    English and Canadian courts. Justice Gonthier found at p. 761 that, the scale
    tips rather heavily against the validity of a person's consent to the
    infliction of bodily injury in a fight.

[56]

However, at p.
    762, Gonthier J. listed a number of policy considerations that serve to
    militate against validating a persons consent to bodily harm occasioned in a
    fight. Among these, Gonthier J. highlighted the social uselessness of fights,
    the tendency of fights to lead to larger breaches of the public peace, the
    utility in deterring fights, and from a moral point of view, the sanctity of
    the human body.

[57]

Gonthier J. elaborated
    at p. 744 that policy-based limits are almost always the product of a
    balancing of individual autonomy (the freedom to choose to have force
    intentionally applied to oneself) and some larger societal interest.  That
    balancing may be better performed in the light of actual situations, rather
    than in the abstract.  At pp. 763 and 764, Gonthier J. stated that the social
    uselessness of fights was the foremost policy consideration in this context. He
    was concerned that consensual fights could lead to larger brawls and to
    serious breaches of the public peace, and determined that, even apart from
    considerations of deterrence, that it would be most unseemly from a moral
    point of view that the law would countenance, much less provide a backhanded
    sanction to the type of fight at the heart of the case before him.

[58]

The common law
    and these policy considerations led Gonthier J. to conclude, at p. 766, that:

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 is the extent of
    the limit which the common law requires in the factual circumstances of this
    appeal. [Emphasis in original.]

[59]

As is often the
    case with landmark cases,
Jobidon
has been referenced for a broad
    proposition: one cannot consent to bodily harm. However, in
Jobidon
,
    Gonthier J. emphasized, at p. 766, that:

[I]t must not be thought that by giving the green light to the
    common law, and a red light to consent to fights, this Court is thereby
    negating the role of consent in all situations or activities in which people
    willingly expose themselves to intentionally applied force. No such sweeping
    conclusion is entailed. The determination being made is much narrower in scope.



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.

[60]

At p. 767,
    Gonthier J. listed several examples of activities where consent would not be
    vitiated due to the significant social value of those activities, such as
    sporting activities, games, medical treatment and surgical interventions,
    stuntmen creating a socially valuable cultural product, and tattoos. He did not
    address whether policy considerations would operate to vitiate consent in the
    context of sexual activity that causes bodily harm.

[61]

The most salient
    point in
Jobidon
for the purpose of the present appeal is that it left
    unanswered the question of what was meant by the intent aspect of bodily
    harm intended and caused. Did the intent to cause bodily harm herald a shift
    towards a subjective test or was objective foresight still required? At p. 766,
    Gonthier J. was unclear on this front: [t]he 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 (emphasis
    added).

[62]

The bodily harm
    contemplated by the test under s. 265 is the same as that defined at s. 267(2)
    of the
Criminal Code
.

[63]

Since 1991, this
    court has addressed the application of
Jobidon
to sexual assault
    causing bodily harm in four judgments. The first of these four cases was
Welch
,
    which developed the test that the trial judge applied in the case at bar.

(ii)

1995: This Courts Decision in
Welch

[64]

In
Welch
,
    this court first dealt with the issue of whether the principle in
Jobidon
would apply in the case of a sexual assault causing bodily harm. In other
    words, the court considered whether the consent of a complainant might constitute
    a valid defence to the offence of sexual assault causing bodily harm.

[65]

In
Welch
,
    the complainant testified that the appellant had tied her to a bed, beat her
    with a belt on her breasts and buttocks. The appellant then sexually assaulted
    her by penetrating her with his penis and inserting his finger into her vagina
    and an object into her rectum. The complainant testified that the appellant did
    all this without her consent. The appellant admitted much of this conduct but
    testified that he had done so because she asked him and even encouraged him to
    do so. The trial judge ruled, in accordance with
Jobidon
, that consent
    was not a defence to the offence of sexual assault causing bodily harm and
    charged the jury accordingly. In the result, the jury found the appellant
    guilty.

[66]

It is evident
    that the trial judge in
Welch
considered the intent element of the
    offence to be defined objectively and not subjectively. In his charge to the
    jury he stated:  Because it is not in the publics interest that people should
    cause each other bodily harm for no good reason, consent is not an answer to a
    charge of sexual assault causing bodily harm, when actual bodily harm is
objectively
    foreseeable and caused
 (emphasis added).

[67]

Griffiths J.A.
    noted, at para. 19, that in doing so, the trial judge:

[W]as quite correctly following the directive of the Supreme
    Court of Canada in
R. v. DeSousa,
[1992] 2 S.C.R. 944 at p. 961  where
    the court held that to render the accused liable for assault causing bodily
    harm, the conduct of the accused, when viewed objectively, must be such that it
    would be likely to cause bodily harm to the victim.

[68]

Because the
    accused had admitted to most of the conduct, Griffiths J.A. observed that it
    is clear that he applied force to her under such circumstances that,
objectively
    viewed
, would inevitably cause her bodily harm (emphasis added).
    Griffiths J.A. therefore dismissed the appeal and agreed that consent was
    vitiated in accordance with
Jobidon
.

[69]

In
Welch
,
    Griffiths J.A. affirmed the trial judges removal of the defence of consent in
    respect of the charge of sexual assault causing bodily harm in the context of
    sado-masochism and deliberate infliction of pain. In my view, however, he did
    not intend to hold that consent should be automatically vitiated in all cases
    of sexual assault causing bodily harm.

[70]

Griffiths J.A.
    undertook a detailed examination of the public policy rationales articulated in
Jobidon
and in sexual assault cases across England, the United States
    and Canada, in an attempt to grapple with the question of whether any form of
    sexual activity causing bodily harm could be socially acceptable. At para. 87, Griffiths
    J.A. summarized
Jobidon
s application:

[T]he message delivered by the majority in Jobidon is that the
    victim cannot consent to the infliction of bodily harm upon himself or herself,
    as defined by s. 267(2) of the Code,
unless the accused is acting in the
    course of a generally approved social purpose when inflicting the harm
.
    Specifically, the majority in Jobidon recognized that consent may be a defence
    to certain activities such as rough sporting activities, medical treatment,
    social interventions, and "daredevil activities" performed by
    stuntmen, "in the creation of a socially liable cultural product".
    Acts of sexual violence, however, were conspicuously not included among these
    exceptions. [Emphasis added.]

[71]

At paras. 55-66,
    Griffiths J.A. reviewed the House of Lords decision in
R. v. Brown
,

[1993] 2 All E.R. 75. In that case, a group of male homosexual
    sado-masochists were arrested when police came across a video of the groups
    private and consensual activities. The men relied only on the defence of
    consent. The House of Lords concluded that the extent to which consent may be a
    defence to physical violence should be determined according to public policy. The
    Law Lords were not prepared to make an exception in favour of sado-masochistic
    conduct as it was not consistent with the public interest. At para. 88 of
Welch
,
    Griffiths J.A. applied the same reasoning to the appeal before him:

While the circumstances of this case are not as distasteful as
    the facts in the House of Lords decision of Brown, they are nonetheless
    disturbing. The sadistic sexual activity here involved bondage (the tying of
    the victim's hands and feet) and the intentional infliction of injury to the
    body and rectum of the complainant.
The consent of the complainant,
    assuming it was given, cannot detract from the inherently degrading and
    dehumanizing nature of the conduct
.  [Emphasis added.]

[72]

At para. 88, Griffiths
    J.A. concluded that the appropriate public policy is that societal interests
    and individual autonomy should be balanced in cases of sexual assault causing
    bodily harm in the following manner:

Although the law must recognize individual freedom and
    autonomy,
when the activity in question involves pursuing sexual
    gratification by deliberately inflicting pain upon another that gives rise to
    bodily harm
, then the personal interest of the individuals involved must
    yield to the more compelling societal interests which are challenged by such
    behaviour.  [Emphasis added.]

[73]

The appellant
    argues that this statement limits
Welch
s application to fact
    scenarios involving sadistic sexual activity and the intentional infliction of
    injury. However, I am mindful of Griffith J.A.s comments approving the trial
    judges use of the
DeSousa
objective test for bodily harm and the
    trial judges decision to remove the defence of consent from sexual assault
    causing bodily harm on a finding of what was then unparticularized bodily harm.

[74]

The appellant
    suggests that
Welch
imposes a high standard, including elements of
    inherently degrading and dehumanizing conduct or activity that involves
    deliberate infliction of pain, to vitiate consent and remove it as a possible
    defence to sexual assault causing bodily harm. I am not persuaded that this is the
    standard required to vitiate consent to a sexual assault causing bodily harm. I
    reach this conclusion because Griffiths J.A. in
Welch
was focused
    specifically on sado-masochistic conduct and made no comments about other
    sexualized conduct more generally.

[75]

In the present
    case there is no element of sado-masochistic conduct. The issue is chiefly the credibility
    and reliability of the complainants description of what happened. The jury may
    or may not have harboured a reasonable doubt as to the complainants consent. I
    note again that the trial judge found that there was an air of reality to
    consent or apprehended consent in this case. He charged the jury accordingly. However,
    he only charged the jury on the defences with respect to the included offences
    of assault or sexual assault. The appellants main complaint is that he was
    deprived of similar instructions with respect to the charge of sexual assault
    causing bodily harm.

[76]

At this point I
    also wish to address the respondents position with respect to
Welch
.
    The respondent submits that
Welch
is a seminal case dealing with the
    role of consent in sexual assault causing bodily harm cases and that a general
    rule can, in fact, be derived from the reasons of Griffiths J.A. The respondent
    argues that para. 88, in particular, does not contain the binding authority in
    sexual assault causing bodily harm cases. Rather, this concluding paragraph
    merely contains an articulation of the extent to which the case exceeds the
    threshold for the vitiation of consent in sexual assault causing bodily harm
    cases. The respondent argues that the threshold at which the issue of consent
    is vitiated was established by this court in
Welch
at an earlier point
    in Griffiths J.A.s reasons.

[77]

At paras. 17 and
    18 of
Welch
, Griffiths J.A. described the trial judges ruling and subsequent
    instructions to the jury with respect to his explicit removal of lack of
    consent with respect to the charge of sexual assault causing bodily harm. The
    respondent submitted that para. 19 was an approval of this approach:

When the trial judge spoke of causing bodily harm when actual
    bodily harm is objectively foreseeable and caused, he was quite correctly
    following the directive of the Supreme Court of Canada in
R. v. DeSousa
,
    [1992] 2 S.C.R. 944 at p. 961, 76 C.C.C. (3d) 124 at p. 137, where the court
    held that to render the accused liable for assault causing bodily harm, the
    conduct of the accused, when viewed objectively, must be such that it would be
    likely to cause bodily harm to the victim.  In this case, regardless of whether
    one accepts the version of events given by the appellant or the complainant, it
    is clear that he applied force to her under such circumstances that,
    objectively viewed, would inevitably cause her bodily harm.

[78]

Respectfully, I
    do not read para. 19 as an approval of the trial judges removal of consent as
    a defence. On the contrary, when viewed in the context of the next two paragraphs
    and the remainder of the decision, it is clear that Justice Griffiths conducted
    a full analysis of the central issue of the decision, which he articulated at para.
    21 that [t]he question then of
whether
consent to the conduct could
    be a
valid defence
to a sexual assault causing bodily harm became the
    central issue (emphasis added).

[79]

Ultimately, much
    of the analysis in
Welch
is focused on the sado-masochistic nature of
    the circumstances of that case. I am neither persuaded that the authorities
    cited by the appellant nor the conclusions reached in
Welch
are
    particularly helpful to establish a generally applicable standard or threshold by
    which consent is vitiated in sexual assault causing bodily harm cases. Furthermore,
    the social utility of intimate sexual relationships is significantly different
    from that of consensual bar fights, as such, the underlying policy reasons for
    the ruling in
Jobidon
cannot be generally applicable in a sexual
    context as suggested by the ruling in Welch.

(iii)

1998
    and 2001: This Courts Subsequent Application of
Welch

[80]

This court applied
Welch
in two other similar cases. From these two cases it appears the
    court was of the view that consent remains a defence to a charge of sexual
    assault causing bodily harm unless the accused has subjective intent to cause
    bodily harm to the complainant. The first of these two cases is the case of
R.
    v. Amos,
[1998] O.J. No. 3047 (C.A.).

[81]

In
Amos
,
    the accused was convicted of sexual assault causing bodily harm due to injuries
    that were caused as a result of anal intercourse. The trial judge concluded
    that, due to the resulting bodily harm, consent was irrelevant in this case. In
    a brief endorsement, this court found that the trial judge erred in concluding
    that consent was irrelevant.  This court held, at para. 3, that the policy
    considerations informing
Jobidon
and
Welch
did not apply to
    this case, as anal intercourse did not constitute socially unacceptable conduct
    and therefore did not outweigh individual freedom:

There is no suggestion in the evidence that the appellant
deliberately
inflicted injury or pain to the complainant. Moreover, it cannot be said that
    anal intercourse is inherently degrading and dehumanizing or that it
    constitutes socially unacceptable conduct, particularly in view of s. 159(2) of
    the
Criminal Code
which excepts from criminal liability anal
    intercourse between consenting adults in private. [Emphasis added.]

[82]

Therefore, given
    the trial judges finding that the Crown had failed to prove lack of consent
    beyond a reasonable doubt, this court set aside the trial judges conviction
    and acquitted the accused.

[83]

Again, in the
    case of
R. v. Robinson
(2001), 53 O.R. (3d) 448, Rosenberg J.A.
    addressed the role of consent in a case of sexual assault causing bodily harm.
    This case concerned three incidents of sexual violence. The appellant had admitted
    that a few of the sexual acts had occurred, but argued that they were
    consensual. These acts included gagging the complainant and tying her up,
    forced anal intercourse, penetrating her vagina with a cucumber, and most
    notably for the charge of sexual assault causing bodily harm, kissing her with
    such force that his goatee caused a circular abrasion leaving her skin raw and
    oozing.

[84]

The trial judge
    directed the jury that if they found that the appellant had caused bodily harm,
    as defined in s. 267(2), then consent was no defence.  Rosenberg J.A. examined
Welch
,
    and on that basis, made one conclusion and one recommendation. At para. 62,
    Rosenberg J.A. concluded that the trial judge was correct in his instruction to
    the jury.  However, he recommended that it would have been better if the trial
    judge had qualified his instruction in the following manner:

In view of the decision in
Welch
, I am of the view
    that the trial judge was right to instruct the jury that consent could not be a
    defence to certain forms of bodily harm. However, it would have been preferable
    had the trial judge made it clear
that consent was no defence only if the
    appellant deliberately inflicted pain upon the complainant
causing bodily
    harm as he had defined it. [Emphasis added.]

[85]

Therefore, apart
    from brief statements made by this court in
Amos
and
Robinson
,
    the availability of consent as a defence in sexual assault causing bodily harm was
    not set out with great precision. The test as articulated in the trial judges
    charge posited that consent was vitiated if an accused applied force that could
    be reasonably apprehended to cause bodily harm and caused bodily harm in a
    sexual context. This is an objective test. In my view, the jurisprudence has
    signalled a shift toward a subjective standard to vitiate consent in the event
    bodily harm is occasioned. That is, consent will be vitiated only where the
    accused deliberately inflicted bodily harm or pain on the complainant.

(iv)

2005:
    The Supreme Court of Canadas Decision in
Paice

[86]

In 2005, the Supreme
    Court of Canada addressed the matter of consent as a defence to an assault
    causing bodily harm in
R. v. Paice
, 2005 SCC 22, [2005] 1 S.C.R. 339.
    In doing so, the Supreme Court clarified its ruling in
Jobidon
.

[87]

The facts of
Paice
were similar to those in
Jobidon
. The incident began when the deceased
    challenged the accused to a fight. The two men went outside, exchanged threats
    and the deceased pushed the accused once or twice. The accused hit the deceased
    hard on the jaw, the deceased fell backwards and hit his head on the pavement,
    and the accused struck the decea
se
d two more times. Subsequently, the
    deceased died from his injuries. Just as in
Jobidon
, Paice was accused
    of manslaughter through the unlawful act of assault.  However, the trial judge
    misapprehended the test in
Jobidon
holding that the defence of consent
    was not available if bodily harm were either intended
or
caused.

[88]

Charron J.
    clarified, at para. 12, that bodily harm must both be intended
and
caused
    in order for consent to be vitiated. She held that, otherwise, the result would
    be absurd. It appears from Charron J.s language that the element of the test
    relating to the intent to cause bodily harm should be assessed subjectively rather
    than objectively:

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
.
    [Emphasis added.]

[89]

Charron J.s
    outline of when consent is and is not available as a defence, at para. 18, is
    illustrative:

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. [Emphasis added.]

[90]

However,
Paice
still did not explicitly state whether the element of intent in the
    context of vitiating the defence of consent should be assessed on a subjective
    or an objective basis. The Supreme Court has not ruled further on this matter. I
    must therefore turn to
Quashie
, the leading authority on the role of
    consent in sexual assault causing bodily harm in Ontario.

(v)

2005: This Courts Decision in
Quashie

[91]

This courts
    decision in
Quashie
provided a different interpretation from
Welch
.
    Gillese J.A., writing for the court, propounded a decision tree for use in jury
    trials where an accused is charged with sexual assault causing bodily harm.

[92]

Quashie
involved
    two incidents occurring within two days of one another. The complainant was a
    19-year-old university student who adhered to traditional Nigerian cultural
    values and was a virgin at the time of the first assault. The accused agreed
    that the two encounters had occurred but argued they were both consensual. In
    the first incident, the accused engineered his way into the complainants
    dormitory at the beginning of a date, held her down on the bed and attempted to
    vaginally penetrate her. The second incident occurred under the pretext of
    apologizing for the first incident. At his apartment, he again pinned her on
    the bed and forcefully penetrated her vagina, causing her a great deal of pain.
    He had used a condom but it had broken during the forced penetration. Subsequently,
    he informed her that he was HIV-positive. She suffered a great deal of
    psychological harm from this episode. A friend took her to seek medical
    treatment, where it was determined she had suffered several injuries in her
    labia, hymen and cervix. She also suffered side effects from the HIV
    prophylactic medication.

[93]

In
Quashie
,
    the trial judge charged the jury that it need not consider the issue of consent
    with respect to aggravated assault or sexual assault causing bodily harm, as
    long as the Crown proved that her injuries were of the requisite degree of
    harm. Quashie was convicted by a jury of sexual assault for the first incident,
    and of sexual assault causing bodily harm for the second incident. On appeal,
    Quashie argued that the trial judge erred in removing the defence of consent
    from the jury in respect of those offences.

[94]

Gillese J.A. noted
    that the trial judge in this case had made the same mistake as the judge in
Paice
.
    That is, he had required that the jury find that bodily harm was caused, but
    had not instructed them that they must also find that the resulting harm was intended.
    At para. 57, Gillese J.A. held that

[I]t was an error for the trial judge to fail to instruct 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
. [Emphasis added.]

[95]

Gillese J.A.s
    review of the preceding case law examined what was meant by the intent to
    cause bodily harm in the context of sexual assault causing bodily harm.  Her
    analysis suggests strongly that intent should be construed subjectively. At
    para. 53, she took guidance from
Welch
that public policy
    considerations vitiate the defence of consent to a charge of sexual assault
    causing bodily harm in circumstances involving sado-masochism and the
    deliberate infliction of pain.  At para. 54, she indicated that
Amos
and
Robinson
confirmed the rule that consent was not a defence to a
    charge of sexual assault causing bodily harm in circumstances
where the
    accused has deliberately inflicted pain or injury upon a person
that gave
    rise to bodily harm (emphasis added). Gillese J.A. pointed to
Amos
,
    where there was no suggestion that the appellant had deliberately inflicted
    pain or injury in the course of causing bodily harm, and where this court had
    held that consent therefore remained an essential element of the offence in
    that case.

[96]

As mentioned
    earlier in these reasons, the appellants main argument is that the trial judge
    did not instruct the jury in accordance with this courts decision in
Quashie
.

[97]

As also
    mentioned, the respondent concedes that the trial judge did not instruct the
    jury in accordance with this decision. However, the Crown argues that
Welch
is the seminal case dealing with the issue of consent in sexual assault
    causing bodily harm cases, whereas the
Quashie
decision should be read
    as applying to the particular facts and circumstances of the case, which were
    distinct from the present case.

[98]

I disagree. In
    light of how the law has developed, it is doubtful that
Welch
remains
    good law even in cases involving sado-masochism. In my view,
Quashie
is a more typical or neutral sexual assault causing bodily harm case,
    remarkably similar in many ways to the facts in the present case, except
    perhaps that it is marginally less forceful. Other distinctions between
Quashie
and the present case, such as the influence of alcohol or the previous sexual
    assault reported by the complainant in the present case, are of no import to
    the issue in this appeal.


(vi)

2012:
    This Courts Decision in
McDonald

[99]

Although it does
    not influence my reasons, I find further support for the result I reach in this
    case from the recent decision of this court in
McDonald
which was
    decided after the jury rendered its verdict in the appellants trial.

[100]

While
McDonald
is a case
    that involved a charge of aggravated assault, similar principles apply.

[101]

In the
McDonald
case, the
    accused, McDonald had been in line at a busy Subway restaurant for 30 minutes
    at 2 a.m. Gibson, the victim, jumped the line.  McDonald told Gibson to move
    back, Gibson ignored McDonald, and McDonald put his hand on Gibsons shoulder.
    Gibson grabbed McDonalds hand and refused to let go.  McDonald managed to get
    Gibson into a chokehold position while Gibson held onto his waist. As Gibson
    began to let go of McDonald, McDonald released his grip.  Gibson fell backwards
    and hit his head on the tile floor. He sustained a brain injury and fractured
    skull that caused him to fall into a coma for several days and sustain brain
    damage from which he did not recover.

[102]

The trial judge charged the jury
    that consent was not available as a defence on the offence of aggravated
    assault.  In fact, he specifically included consent within the objective
    foresight element of aggravated assault, instructing that if the jury was
    satisfied beyond a reasonable doubt that a reasonable person would realize that
    the force McDonald applied put Gibson at risk of bodily harm, then consent was
    not available as a defence.  McDonald was then convicted of aggravated
    assault.

[103]

He appealed on the basis that the
    offence of aggravated assault and the required elements for vitiating consent
    are different, and therefore consent may be available as a defence in some cases
    of aggravated assault.  This court agreed, and held at para. 28:

[F]ollowing
Paice
and
Quashie
, consent is
    vitiated only when the accused intended to cause serious bodily harm and the
    accused caused serious bodily harm.
The defence of consent may, if the
    facts support it, be available in the context of a charge of aggravated
    assault.
In the case at bar, in my view, the trial judge erred by removing
    the defence of consent from the jury for its consideration on the charge of
    aggravated assault. [Emphasis added.]

[104]

The Supreme Court of Canada subsequently
    dismissed leave to appeal from this courts decision in
McDonald
.

(c)

The Proper Jury
    Instruction for Sexual Assault Causing Bodily Harm

[105]

Applying the above principles to
    the facts of this case, I conclude that the trial judge did not instruct the
    jury correctly.

[106]

Rather, the trial judge should
    have provided the instruction outlined in
Quashie
, as the reasons of
    Gillese J.A. contain this courts guidance for the role of consent in sexual
    assault causing bodily harm. At para. 58, she stated:

First
, the jury had to be satisfied beyond a
    reasonable doubt that the appellant assaulted the complainant.
Second
,
    the jury had to be satisfied that the assault took place in circumstances of a
    sexual nature such as to violate the complainant's sexual integrity.
Third
,
    the jury had to be satisfied that the sexual assault caused bodily harm.
Fourth
,
    the jury had to be satisfied that the appellant intended to inflict bodily harm
    upon the complainant.
If
the jury found that the appellant had
    intended to inflict bodily harm upon the complainant and that the complainant
    suffered bodily harm, the defence of consent was irrelevant.
However, if
the jury was not satisfied beyond a reasonable doubt that the appellant
    intended to, and did, cause the complainant bodily harm, then it was necessary
    for the jury to decide whether they were satisfied beyond a reasonable doubt
    that the complainant had not consented. [Emphasis added.]

[107]

I do recognize that the
    articulation in the above guidance uses the term "assault" in the
    first three steps.  In my view, Gillese J.A.s decision tree must be read as a
    whole.  That is, the term "assault", viewed in context, must be taken
    to mean nothing more than an intentional application of force. It cannot
    logically mean absence of consent, given the nature of the other steps to be
    followed.  To suggest otherwise is to misconstrue what Gillese J.A. intended. With
    this clarification, the test can be broken down as follows:

1.      The
    jury must be satisfied beyond a reasonable doubt that the accused intentionally
    applied force to the complainant.

2.      The
    jury must be satisfied beyond a reasonable doubt that the intentional application
    of force to the complainant took place in circumstances of a
sexual nature
such as to violate the complainant's sexual integrity.

3.      The
    jury must be satisfied beyond a reasonable doubt that the intentional application
    of force in circumstances of a sexual nature
caused
bodily harm.

4.      If in
    addition to the above three criteria, the jury is satisfied beyond a reasonable
    doubt that the accused intended to inflict bodily harm upon the complainant (a
    subjective criterion), then consent is irrelevant, and the accused would be
    found guilty of sexual assault causing bodily harm.

5.       If
    the jury is not satisfied beyond a reasonable doubt that the accused intended
    to cause the complainant bodily harm, then they would need to go on to consider
    whether they are satisfied beyond a reasonable doubt that the complainant did
    not consent to the intentional application of force by the accused.

[108]

The test from
Quashie
, as
    clarified above, demonstrates that consent is not vitiated in all circumstances
    of sexual assault causing bodily harm, but instead only in those circumstances
    where bodily harm was intended
and
in fact caused.  Where the accused
    did not intend to cause bodily harm, consent is available as a defence, if
    bodily harm is inadvertently caused.

[109]

In addition, these instructions
    are only relevant when considering the offence of sexual assault causing bodily
    harm, and cannot be used as a pathway for the jury to make findings with
    respect to the included offences of either sexual assault
simpliciter
or assault
simpliciter
. In the event, based on the evidence, if sexual
    assault
simpliciter
and/or assault
simpliciter
are to be
    considered by the jury, then an appropriate charge for those offences would
    have to be given.

[110]

As indicated earlier, in his
    charge to the jury, the trial judge made no mention of consent as an available
    defence until he began instructing the jury on sexual assault
simpliciter
.
    Based on the charge, the jury convicted the appellant of sexual assault causing
    bodily harm without being instructed to consider whether the appellant subjectively
    intended to cause the complainant bodily harm. Under the
Quashie
test,
    the consideration of whether the accused intended to inflict bodily harm is the
    third element in the jury instruction. Since the jury did not consider this
    element, this court would be unable to conclude that the Crown proved beyond a
    reasonable doubt that the appellant intended to inflict bodily harm to the
    complainant. Therefore, according to the
Quashie
test, with the third
    element in doubt, the defence of consent was still available.

[111]

Finally, the respondent asked this
    court to consider the curative proviso in section 686(1)(b)(iii) of the
Criminal
    Code
. In the circumstances, I accept the appellants submission that the
    jury may have harboured reasonable doubt about the complainants consent or the
    appellants belief in consent. However, in accordance with the trial judges
    instructions, the jury was not given the opportunity it ought to have been
    given to acquit on that basis.

[112]

With such discrepancies between
    the jury instructions, and without the appellants testimony, it is my view
    that a new trial should be ordered.  In
Quashie
, Gillese J.A. found it
    appropriate to apply the curative proviso for two reasons. First, the jury had
    found him guilty of sexual assault
simpliciter
in respect of a
    previous incident. Accordingly, this indicated that the jury had found the
    complainant had not consented to the first act. Second, Quashie had admitted to
    the impugned conduct. These aspects are absent from the case before me.

[113]

Furthermore, the trial judge did
    make a positive finding that there was an air of reality to the defence of
    consent with respect to assault and sexual assault
simpliciter
. On
    this basis, I cannot find that there was no substantial wrong or miscarriage of
    justice occasioned by the trial judges failure to instruct the jury on consent
    on the charge of sexual assault causing bodily harm in accordance with
Quashie
.
    I would therefore not apply the curative proviso.

D.

disposition

[114]

In the result, I would set aside
    the conviction and order a new trial. Although I would grant leave to appeal
    sentence, it is unnecessary to decide the sentence appeal.

Released: JL May 3, 2013

M.
    Tulloch J.A.

I
    agree J.I. Laskin J.A.

I
    agree R.G. Juriansz J.A.





[1]
It would appear the authors of
Watts
    Manual of Criminal Jury Instructions
did not have the benefit of the
    decision in
Quashie
when the model
    instructions were prepared.


