



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. McDonald, 2012
    ONCA 379

DATE: 20120606

DOCKET: C52136

Feldman, Armstrong JJ.A and Himel J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Mackenzie McDonald

Appellant

John H. Hale and Anne Marie McElroy for the appellant

Lisa Joyal for the respondent

Heard: December 8, 2011

On appeal from the conviction entered on January 15, 2010
    by Justice Douglas M. Belch of the Superior Court, sitting with a jury.

Himel J. (
ad hoc
):

I.     Overview

[1]

The appellant appeals his conviction for
    aggravated assault and asks that it be set aside and a new trial ordered.  He
    argues that the trial judge did not properly instruct the jury on the defences
    of consent and self-defence.  For the reasons that follow, I find that the
    trial judge erred in not allowing the defence of consent to be put to the jury
    for their consideration.  Accordingly, I would allow the appeal and order a new
    trial.

II.    Background

[2]

On September 27, 2008, the appellant, who
    was 19 years old at the time, and two friends drove to Kingston from Ottawa to
    take part in the annual Homecoming weekend festivities at Queens University. 
    After spending Saturday evening with friends, the appellant went to the Subway
    restaurant to get something to eat before going to bed.  It was almost 2:00
    a.m. and the place was packed.  Darren Gibson and Gerard Traverse were in
    Kingston for the weekend doing renovations at the Canadian Tire store.  They
    also went to the Subway restaurant late that night to get something to eat.

[3]

There were approximately 30 to 40 people
    in line at the restaurant.  Mr. Gibson entered the restaurant and went to the
    front of the line, taking a position in front of some people who were ahead of
    the appellant.  The appellant, who had been waiting for approximately 30
    minutes, told Mr. Gibson to go to the back of the line but Mr. Gibson ignored
    him.  The appellant put his right hand on Mr. Gibsons left shoulder and told
    him to get to the back of the line. Mr. Gibson grabbed the appellants right
    arm with both his hands.  The appellant tried to get free but could not as Mr.
    Gibson would not release his arm.  The appellant pulled his arm back and forth
    trying to break Mr. Gibsons hold.  The two men were struggling with each
    other.  The appellant managed to pull his arm and tuck Mr. Gibsons head under
    his right arm in a chokehold while Mr. Gibson wrapped his arms around the
    appellants waist and held on.  Another patron began filming the incident with
    his cell phone just after the physical confrontation began.

[4]

The appellant rotated to face the back of
    the line and attempted to move Mr. Gibson towards the front door.  As Mr.
    Gibson began to let go, the appellant released him by lifting up the arm that
    had been around his head and neck.  Mr. Gibson fell backwards, hitting his head
    on the hard tile floor.  The appellant left the Subway restaurant immediately. 
    He heard later that Mr. Gibson had been seriously injured.

[5]

The appellant learned through his friends
    that the police were trying to identify who had injured Mr. Gibson.  The
    appellant surrendered himself and gave a lengthy videotaped statement to
    police.  He was arrested on a charge of aggravated assault.

[6]

Mr. Gibson suffered life-threatening
    injuries including a fractured skull.  He was in a coma for several days and has
    not regained normal brain functioning. His abilities to speak, read, drive a
    car, and care for his son are compromised.  He cannot work.

[7]

The jury found Mr. McDonald guilty of
    aggravated assault.  The trial judge sentenced him to a period of imprisonment of
    two years less a day, followed by three years probation.  He also made an
    order authorizing a DNA analysis and an order under s. 109 of the
Criminal
    Code
prohibiting the possession of any
    firearm for a period of 10 years.  The appellant appeals the conviction only.

III.
The Evidence at Trial

[8]

As a result of the brain injury, Mr. Gibson was unable to relate details
    of the incident.  His co-worker Gerard Traverse did not see the incident.  He
    said, it all happened so quick. I mean were talking 10 to 15 seconds.  He
    heard Mr. Gibsons head hit the ground and said the place cleared out.  He
    described the appellant as very, very aggressive, very very loudhe was
    putting on a show. Damian Hedlin, a Subway employee, saw a crowd gather and
    walked over.  He observed that the appellant had Mr. Gibson in a headlock; he
    saw the appellant release Mr. Gibson and Mr. Gibson fall to the ground.  He had
    not heard any words exchanged between the two men and did not see how the fight
    started. He said that the appellant did not push Mr. Gibson or apply any other
    force; he released him from the hold and he fell to the ground.  Mr. Hedlin
    called 911 for assistance.

[9]

Justin Patterson, who had applied first
    aid, did not see how the fight started.  He saw Mr. Gibson leaning forward
    while bent at the waist in a chokehold, which lasted about 10 to 15 seconds and
    then fall backwards.  He said, somehow the victim fell backwards and hit his
    head on the floor.

[10]

Stefan Zalesky was standing near the front of the line
    when the two men came in and cut into the line.  He said that Mr. McDonald
    objected and there was a shoving match.  He testified that the appellant was
    swearing and started a verbal confrontation and shoved first.  Mr. Zalesky
    pulled out his camera from his pocket when the shoving started and began
    filming the incident when Mr. Gibson was already in a headlock.  He described
    the headlock as a wrestling move, pretty much to choke someone out, to make
    them pass out.  The headlock lasted about 10 seconds.  He said that the
    younger man had thrown the older man to the ground; however, he also said, you
    can call it dropping too.  Mr. Zalesky said that he believed that the older
    man didnt want to fight.

[11]

Jameson Christopher Holman was in the Subway
    restaurant waiting to order food when he noticed a scuffle break out: it was
    kind of like a jostling, pushing and shoving  He said that he saw the
    appellant immobilize Mr. Gibson in a mixed martial arts type headlock before
    lifting up gently and then dropping the victim.  He did not see who started
    the pushing, but described the appellant as the aggressor as he was significantly
    more aggressive compared to the victim.  He said that the appellant had picked
    him up slightly and pushed him away, and that the fall was not violent but
    unfortunately the floor was very hard.

[12]

Scott Paulseth was standing in line at the restaurant
    with friends when he noticed that Mr. Gibson and Mr. Traverse had come in and
    were standing to the side of the line up.  The next time he turned around, he
    saw that Mr. Gibson and Mr. Traverse were standing in front of Mr. McDonald. 
    He did not see how the fight started but saw the appellant had Mr. Gibson in a
    headlock.  He said that the altercation did not appear to be unsafe, that
    neither party appeared to be a threat to the other, and that the headlock definitely
    did not appear to be dangerous.  Then he heard a thud, a loud noise.  The
    confrontation took less than 20 seconds.  Although he did not see who initiated
    contact, he believed Mr. Gibson to be the aggressor.

[13]

Detective Steven Koopman testified that police are
    prohibited from using a hold called a carotid restraint or any hold around
    the neck except when there is a threat of serious bodily harm or death.

[14]

The appellant testified that he was not looking for a
    fight that night.  He said he did not do anything deliberately to cause Mr.
    Gibson to become unconscious and was not trained in martial arts, wrestling or
    any other technique that could render someone unconscious.  When he let Mr.
    Gibson go, he did not intend for him to hit the ground.  He did not realize
    that Mr. Gibson was unconscious.  He left the Subway restaurant not knowing
    that Mr. Gibson had been injured.  He hurried out because he was afraid that Mr.
    Gibson would get up and come after him.  In his statement to Detective Koopman,
    Mr. McDonald said he thought that the falling backwards was a joke.  The
    appellants friend William Roantree testified that Mr. Gibson had started the
    fight by grabbing the appellants arm with his two hands and that nothing that
    the appellant did looked dangerous or too harmful.

[15]

The appellant is now 21 years old and a part-time
    student at Carleton University.  He had been working at Scotiabank at the time
    of the incident but was unable to continue with that job because of this
    charge.  He has no criminal record. At trial, he called good character evidence
    concerning his background.   On the issue of violence, the character evidence was
    that he had a reputation of being very balanced, even handed, and respectful
    of othersvery measured.

[16]

During the hearing of the appeal, this court viewed
    the video which Mr. Zalesky had taken of the incident and which was introduced
    as an exhibit at trial.  The portion of the incident captured lasted between
    eight to ten seconds.  It shows Mr. Gibson bent over at the waist, with his
    head faced towards the ground and his hands on Mr. McDonalds waist and
    buttocks.

IV.
The Charge to the Jury and the Issue of Consent

[17]

At trial, the appellant took the position that the
    defences of consent and self-defence should be put to the jury.  The appellant
    argued at the pre-charge conference that the defence of consent is available
    even where serious bodily harm is inflicted as long as the accused did not
    intentionally cause the bodily harm.  Counsel took the position that there was
    evidence that Mr. Gibson had consented to fight with the appellant.  After the
    appellant placed his hand on Mr. Gibsons shoulder, Mr. Gibson grabbed the
    appellants arm and would not let go.  Mr. Gibson also wrapped his arms around
    the appellants waist.  The appellant contended that Mr. Gibson had engaged
    consensually in the struggle, that there was nothing inherently dangerous in
    applying a headlock for five to ten seconds, and that the appellant had not
    intended to cause harm nor was he reckless.  On this evidence, it was
    submitted, a defence of consent should have been left with the jury.

[18]

The trial judge would not charge the jury on a defence
    of consent as it related to the offence of aggravated assault.  He charged the
    jury according to the law outlined by the Supreme Court of Canada in
R.
    v. Jobidon
,
[1991] 2 S.C.R 714.  In that
    case, two men were involved in a consent fist fight which resulted in the
    victim being taken to hospital in a coma.  The trial judge found that the
    accused did not intend to kill or cause serious bodily harm; however, he hit
    the victim as hard as he could.  The Supreme Court of Canada upheld the
    conviction on manslaughter imposed by the Court of Appeal.  The case discusses
    the policy reasons for drawing the line on vitiating consent for consensual
    fist fights between adults and discusses the role of consent in the criminal
    offence of assault.  The court was mindful not to overextend the application of
    the principle by criminalizing activities that were never intended to be
    captured by the assault provisions of the
Criminal Code
.

[19]

Applying
Jobidon
, the trial judge instructed the jury to disregard the
    defence of consent as he was of the view that it was not available on a charge
    of aggravated assault.  However, he said it was available as a defence on a
    charge of simple assault.  His instructions to the jury were as follows:

Now in his jury address defence counsel suggested you were
    required to consider whether Mr. Gibson consented to this bodily harm. He did
    point out that it is my instruction on the law that you must follow, and my
    instructions to you on the law is that with respect to aggravated assault you
    do not consider consent in your determination of this charge.

Consent does not apply with aggravated assault, consent does
    apply with assault ...

[20]

The trial judge also referenced the issue of consent
    in the decision tree which he handed to the members of the jury.  He then
    reiterated his instructions and said:

A couple other items that I am going to point out, I have
    already dealt with the issue of consent, that there cannot be consent to
    aggravated assault but there could be consent to assault.  Remember to keep
    that different in your consideration.

Counsel for the
    respondent agreed with the charge to the jury on the issue of consent.

[21]

On appeal, counsel for the appellant takes the position
    that
R. v. Paice
, [2005] 1S.C.R.
    339 and
R. v. Quashie,
[2005]
    O.J. No. 2694 (C.A.) have clarified that consent may be available as a defence
    on a charge of aggravated assault even where serious bodily harm is inflicted
    so long as the accused did not intentionally cause the serious bodily harm.

[22]

Counsel for the Crown relies on the case of
R.
    v. Godin
,
[1994] 2 S.C.R. 484, where the
    court held on a charge of aggravated assault that the Crown is not required to
    prove that the accused intended to cause bodily harm.  The court wrote that the
mens rea
for aggravated assault
    is objective foresight of bodily harm and that: It is not necessary that
    there be an intent to wound or maim or disfigure.  The Crown argues that the
mens
    rea
requirement means that, if vitiating
    consent requires proving that the accused had the intent to inflict serious
    bodily harm, then the
mens rea
for aggravated assault will be raised from objective to subjective, which
    cannot be correct.  Counsel for the Crown further submits that the cases of
Jobidon
and
Paice
should be interpreted in light of
Godin
and that any consent given by a complainant during
    the course of a fight will be vitiated if the Crown establishes that: (1) the
    accused intentionally applied force to the complainant; (2) the force the
    accused intentionally applied caused bodily harm to the complainant; and (3) a
    reasonable person, in the circumstances, would inevitably realize that the
    force the accused intentionally applied would put the complainant at risk of
    suffering some kind of bodily harm.

[23]

Crown counsel also takes the position that the defence
    at trial had admitted certain facts concerning the intentional application of
    force and causation but contested the issue of objective foresight.  As a
    result, the trial judge instructed that jury concerning this element of the
    offence of aggravated assault and said that they needed to decide:

Would a reasonable person, in the circumstances inevitably
    realize that the force McDonald intentionally applied put Gibson at risk of
    suffering some kind of bodily harm although not necessarily serious bodily harm
    or the precise kind of harm that Mr. Gibson suffered here?

[24]

The trial judge then instructed the jury that if they
    were not satisfied beyond a reasonable doubt that this element had been proven,
    they must then decide: ...did Gibson consent to the force that McDonald applied? 
    This is the point at which the issue of consent was considered relevant. Crown
    counsel supports the order and the manner of the instruction.

V.
Analysis on the Issue of Consent

[25]

In
R. v. Paice
, there was a scuffle in a bar and the accused was challenged by the
    deceased to go outside and fight, which he did.  They exchanged threats and the
    deceased pushed the accused once or twice. The accused hit the deceased in the
    jaw, and the deceased fell backward and hit his head twice.  The accused then
    straddled the deceased and struck him twice more.  The deceased died as a
    result of his injuries.  The accused was charged with manslaughter.  He argued
    that the deceaseds consent to the fight vitiated criminal responsibility and
    that the trial judge used an incorrect test for determining whether consent is
    negated.  The trial judge held that the defence of consent did not apply if
    there was either intent to cause serious bodily harm or serious bodily harm was
    caused.

[26]

The Court of Appeal ordered a new trial.  The Supreme
    Court of Canada dismissed the appeal.  The court held that the trial judge
    erred in formulating the test in the alternative.  Rather, the court held at
    para. 18 that, in accordance with the
Jobidon
decision, consent cannot be nullified unless there is
    both intent to cause serious bodily harm and serious bodily harm is caused. 
    The Supreme Court re-affirmed and refined the
Jobidon

decision and held that serious harm must be both
    intended and caused for consent to be vitiated.

[27]

In
R. v. Quashie
,
the Court of Appeal considered an appeal from
    conviction of the offences of sexual assault and sexual assault causing bodily
    harm where the complainant alleged that she had been sexually assaulted and
    that she was injured during the second assault.  The appellant argued that the
    trial judge erred in failing to charge the jury on the issue of consent in
    respect of the offence of aggravated or sexual assault causing bodily harm and
    submitted that there was no suggestion that the accused deliberately inflicted
    injury or pain to the complainant.  It was argued that whatever injuries the
    complainant suffered were incidental to sexual intercourse and that consent was
    an available defence.  Justice Gillese reviewed the decision in
R.
    v. Paice
and wrote at para. 57:

Based on the authorities, in my view, it 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.

[28]

Accordingly, following

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.

VI.
The Charge to the Jury and the Issue of Self-Defence

[29]

The trial judge instructed the jury on the issue of
    self-defence with reference to s. 37 of the
Criminal Code
.

[30]

Section 37 of the
Criminal Code
provides:

37(1) Every one is justified in using force to defend himself
    or any one under his protection from assault, if he uses no more force than is
    necessary to prevent the assault or the repetition of it.

(2)  Nothing in this section shall be deemed to justify the
    wilful infliction of any hurt or mischief that is excessive, having regard to
    the nature of the assault that the force used was intended to prevent.

[31]

The trial judge instructed the jury that the first
    question to be answered is, was McDonald unlawfully assaulted?  He explained
    this instruction as follows:

... first, it is essential, however, that McDonald was actually
    assaulted. It is not enough that McDonald believed that he might or would be
    assaulted by Gibson or some other person.  If you are satisfied beyond a
    reasonable doubt that McDonald was not unlawfully assaulted, McDonald was not
    actually in lawful self-defence, your consideration of self-defence would be at
    an end....

[32]

Defence counsel objected to the charge, arguing that
    s. 37 is focused on the accuseds perceptions in that moment regardless of who
    started or regardless of whether he was or was not being unlawfully assaulted.
     The trial judge refused to re-charge the jury that s. 37 does not require that
    the accused defend himself against an
actual
assault.

VII.
Analysis on the Issue of Self-Defence

[33]

Section 37 provides that a person may use force to
    defend himself if he uses no more force than is necessary to prevent the
    assault or the repetition of it.  Section 37 does not require a finding as to
    who the aggressor was: see
R. v. Grandin
(2001), 154 C.C.C. (3d) 408 (B.C.C.A.) at para. 54.

[34]

The trial judge was correct in charging the jury only
    on s. 37 and not on s. 34 as well, as s. 37 provides a broader scope of
    justification for the use of force and was more appropriate in the
    circumstances of this case: see
R. v. Pintar
(1996), 110 C.C.C. (3d) 402 Ont. (C.A.) at 416.

[35]

The defence of self-defence under s. 37, while it does
    not stipulate that the person must first have been unlawfully assaulted, does
    require that the person be defending himself or anyone under his protection
    from assault.  An assault is the intentional application of force or the
    attempt or threat to apply force to another person without that persons
    consent.  The person must reasonably believe that he is being unlawfully
    assaulted.  In those circumstances, he will be justified in using force to defend
    himself from an assault if he uses no more force than is necessary to prevent
    the assault.

[36]

When instructing the jury, the trial judge stated that
    the jury had to consider three issues.  First, they had to determine whether
    the appellant was unlawfully assaulted; without an unlawful assault, the
    defence of self-defence cannot be used.  Second, the jury was told to determine
    whether the appellant used force to defend himself.  Third, the jury was asked
    to determine whether this force was proportionate and necessary in relation to
    the threat, on a reasonable person standard.  When describing what constituted
    an unlawful assault for the purposes of the first prong of the test, the judge
    stated that, An unlawful assault is the intentional application of force by
    any means to the body of another person, here McDonald, without the other
    persons consent.  Later, in this portion of the charge, the judge reiterated
    that consent was not to be considered in the aggravated assault context.

[37]

The trial judge erred in setting out the issues for
    the jury to decide when he said that the jury had to consider whether the
    appellant had been unlawfully assaulted.  He said: first it is essential,
    however, that McDonald was actually assaulted...  The trial judge erred in
    failing to define assault to include the intentional application of force or
    the attempt or threat to apply force to another person without that persons
    consent.  The jury might well have believed that an
actual
touching was
    required, which would have been in error.

[38]

During deliberations, the jury asked the third
    question: What constitutes a persons consent to an unlawful assault?.  In
    responding, the trial judge re-read s.37 of the
Criminal Code
and outlined three essential ingredients of self
    defence as:

... first of all, that the accused used force.  I do not
    believe the jury will have any difficulty with that.  Secondly, that the force
    used was to defend himself from assault, which means not only physical contact
    but the attempt or threat of physical contact or application of force. Finally,
    thirdly, that the force used was no more than necessary to prevent the assault
    or the repetition of it.

[39]

In
    re-charging the jury in this fashion, the trial judge corrected the original
    error on the self-defence to assault instruction.  Furthermore, it was not
    really in issue that the complainant grabbed the appellants arm and that is
    what caused the appellant to put him in a headlock.  The original error was
    corrected and was not of any real significance in the circumstances of this
    case.  The Supreme Court has said on a number of occasions that, while the
    trial judges charge to the jury was not perfect, it is adequate if it fulfills
    the function of instructions to explain the relevant law and so relate it to
    the evidence so that the jury may appreciate the issues or questions they must
    pass upon in order to render a verdict of guilty or not guilty: see
R. v.
    MacKay,
[2005] 3 S.C.R. 607 at para. 1 citing
Azoulay v. The Queen,
[1952] 2 S.C.R. 495, at p. 503; see also
R. v. Cooper
, [1993] 1 S.C.R.
    146 where Cory J. wrote at para. 43:

It has been said before but it bears repeating that it would be
    difficult if not impossible to find a perfect charge.  Directions to the jury
    need not, as a general rule, be endlessly dissected and subjected to minute
    scrutiny and criticism.  Rather the charge must be read as a whole.  The
    directions to the jury must, of course, set out the position of the Crown and
    defence, the legal issues involved and the evidence that may be applied in resolving
    the legal issues and ultimately in determining the guilt or innocence of the
    accused.  At the end of the day, the questions must be whether an appellate
    court is satisfied that the jurors would adequately understand the issues
    involved, the law relating to the charge the accused is facing, and the
    evidence they should consider in resolving the issues.  I am satisfied that in
    this case the charge meets all these basic requirements. Particularly, the law
    pertaining to the legal issues was correctly placed before the jury. Any errors
    were immediately and repeatedly corrected.

[40]

The
    appellate court is to consider the charge as a whole.  In
R. v. Layton,
[2009] 2 S.C.R. 540 the court said at para. 40:

The standard that a trial judges instructions are to be held
    is not perfection.  The accused is entitled to a properly instructed jury, not
    a perfectly instructed jury: see Jacquard, at para. 2.  It is the overall
    effect of the charge that matters.

[41]

While the overall charge on self-defence was not
    perfect, it was adequate in this case.  The issue of consent being available as
    a defence to assault as opposed to aggravated assault may have caused some
    confusion in the context of the judges charge on the issue of self-defence as
    the reason for the difference was not explained.  This arises from the jurys
    final question which was, What constitutes a persons consent to unlawful
    assault?  The verdict came in immediately after the answer was provided.

[42]

While the trial judge did not err in the charge to the
    jury on self-defence, the error on the defence of consent may have caused
    confusion in the minds of the jury on the self-defence issue as well.

VIII.   Conclusion

[43]

The failure to leave the defence of consent with the
    jury in the circumstances of this case was a fundamental error that went to the
    heart of the defence.  Accordingly, I would allow the appeal from conviction,
    set aside the verdict and order a new trial.

S. Himel J.

I agree K. Feldman
    J.A.

I agree R.P. Armstrong
    J.A.

Released: June 6, 2012


