R. v. Terrence (1983) SCC
This case involved a stolen car. Terrence was invited to go for a ride in the car, which he thought belonged to the brother and law of the person who had stolen the car. During the ride, they were chased by the OPP and Terrence jumped out of the car and attempted to flee. Terrence was charged with constructive possession of a stolen vehicle under CC3.4.b. The SCC found that an important element of possession under this CC section is a measure of control, which an unwitting passenger would not have.
Re Chambers and the Queen (1985) Ont. CA
Boyfriend was staying a girlfriend’s apartment where drugs were found. The occupancy of the room by the girlfriend was not necessarily evidence of possession. CC3.4 states that “where one of to or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody or possession of each and all of them.” Consent in the meaning of this section requires a measure of control. She was found guilty because she had the power to either consent or withhold her consent to her room being used to store cocaine and had knowledge of her boyfriend’s use of her room.
Consent
R. v. Jobidon (1991) SCC
A bar room fight culminated in the death of one party, after Jobidon delivered a flurry of blows to the head of the then unconscious victim. The accused was charged under CC265, which states that “a person commits an assault when without the consent of another person, he applies force intentionally to that other person.” The trial judge found that both parties had consented to a fair fight, no intention to kill or cause serious bodily harm existed and the accused did not intentionally exceed the consent he was given because the final blows were struck under the reasonable but mistaken belief that the victim was still capable of returning to the fight. Gonthier J. found that under CC14, no-one can consent to death and that the common law has always recognized limits on consent to assault. In the Attorney Generals Reference (1980) Eng CA, it was found that “consent is no answer to a charge of assault when serious hurt or non-trivial harm is intended or caused.” The SCC found that public policy supports this position and that it has the jurisdiction to impose policy based limits on the defense of consent. Why? Although CC9 states that all criminal defenses are defined in the CC, CC8.3 states that common law defenses have been preserved. The SCC determined that “where adults intentionally apply force that causes serious harm or non-trivial bodily harm to each other in the course of a fist fight or brawl, consent is vitiated.” Canadian courts have been divided on the issue of fights. Man., NS, Ont. and Sask. are all of the view that consent to intentionally inflicted harm in a fight nullifies consent, while NB and Alta. support the opposite view. Sopinka J. dissented on the basis that there is no evidence in the clear language of CC265 that Parliament intended to eliminate consensual fights. Therefore, the majority had, in effect, created an offence, thus intruding in the affairs of Parliament. Exceptions to the application of Jobidon include that the common law rules don’t effect freely given consent to rough sporting, as long as the application of force is within the rules of the game (important social value) and don’t apply to regular schoolyard scuffles.
Vitiation of Consent by Fraud
Bolduc and Bird v. R. (1967) SCC
Bolduc was a doctor and allowed Bird, a nightclub musician, to enter the examination room with him, posing as a medical intern. Bolduc first obtained the consent of the lady they would be examining by intimating to her that Bird was a medical intern. At no time did Bird touch the patient. Her consent was indeed vitiated by the fraudulent manner in which it was obtained. Hall J. found that the actions of the parties did not amount to indecent assault under CC141.1 because she got the medical treatment that she had expected all along. Bird was a “peeping tom” but this act was not prohibited under the CC because this section focused on loitering rather than peeping. Fraud was not to the nature and quality of the act but rather to the identity of the medical intern. It is a matter of common sense that consent obtained via fraudulent means is vitiated.
Vitiation of Consent by Fraud
R. v. Currier (1998) SCC
Currier was HIV positive and advised to use condoms when engaging in sexual activity and to inform all prospective sexual partners of his condition. He didn’t listen and engaged in consensual unprotected sex with the complainant, who claimed that she would not have consented had she been informed. Cory J. found that fraud can include non-disclosure of important facts. In this context, without disclosure there is no true consent. The common law recognizes that deception as to sexually transmitted disease carrying a high risk of infection, constituted fraud vitiating consent to sexual intercourse. In this case, consent was vitiated because it related to the nature of the act and identity of the partner. The laws must change to adapt to the changing moraes of society.
OMISSIONS
There is a principle at common law that criminal responsibility for omissions is limited to cases where there is a legal, not merely a moral duty to act. The Good Samaritan illustrates the moral principle. Some statutes impose a duty to act and courts often expect people to take reasonable steps to undo potential harms caused by their own actions. The French Penal Code and the Quebec Civil Code both impose a moral duty to help someone in need. An omission or failure to act will generally only form the actus reus of a criminal offence when an individual has a specific legal duty to act.
Fagan v. Commissioner of Metropolitan Police (1968) Eng. CA
The driver of a car accidentally parked his vehicle on top of the foot of a policeman and left it there. The wheel coming to rest on the foot of the officer happened without there being a mens rea and there was no act thereafter that could be considered an actus reus. Fagan’s omission in not removing the car as quickly as requested did not constitute an assault; however, he knowingly allowed the vehicle to remain on the officer’s foot for awhile, which was sufficient to constitute the continuing actus reus of the assault. It was defined as one long continuous act that, at some point, involved the actus reus and mens rea.
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