Canadian Judicial Council Assaults and Other Non-Fatal Offences Against the Person (Last revised June 2013)

Transcription

1 Canadian Judicial Council Assaults and Other Non-Fatal Offences Against the Person (Last revised June 2013)

2 Table of Contents Offence Discharge Firearm with Intent (s. 244)... 3 Offence Discharge Air Gun (Pistol) with Intent (s )... 8 Offence Criminal Harassment (s. 264) Offence Threatening (Death or Bodily Harm) (s (1)(a)) (Last revised June 2013) Offence Assault (ss. 265(1)(a); 266) Offence 267-A Assault With a Weapon (s. 267(a)) Offence 267-B Assault Causing Bodily Harm (s. 267(b)) (Last revised July 2012) Offence 267-C Jobidon Instruction on Consent Offence Aggravated Assault (s. 268(1)) (Last revised July 2012) Offence Unlawfully Causing Bodily Harm (s. 269) (Last revised July 2012)

3 Offence 244 Offence 244 Discharge Firearm with Intent (s. 244) 1 NOA is charged with discharging a firearm with intent (specify intent alleged in the indictment from s. 244(a), (b) or (c)). The charge reads: (read applicable parts of indictment or count) 2 You must not find NOA guilty of discharging a firearm with intent (specify intent alleged in the indictment from s. 244(a),(b) or (c)), unless the Crown has proved beyond a reasonable doubt that NOA is the person who committed the offence on the date and in the place described in the indictment. 1 Specifically, the Crown must prove each of the following essential elements beyond a reasonable doubt: 1. that the instrument was a firearm; 2. that NOA intentionally discharged a firearm at another person (or, specify NOC or NO3P); and 3. that, in discharging the firearm, NOA intended to (specify intent alleged in the indictment from s. 244(a),(b) or (c)). Unless you are satisfied beyond a reasonable doubt that the Crown has proved all these essential elements, you must find NOA not guilty of discharging a firearm with intent 2 (or, specify intent alleged). 1 Where identity is an issue, remember to include any further instructions that may be relevant (e.g. eyewitness identification, alibi, similar fact, etc.). Where date is an issue, the jury must be told that the Crown must prove that the offence occurred within the time frame indicated in the indictment. Where place is an issue, the jury must be told that the Crown must prove that some part of the offence occurred in the place indicated in the indictment. Generally, the Crown must prove the date and place specified in the indictment. However, where there is a variation between the evidence and the indictment, refer to s. 601(4.1) of the Criminal Code and the jurisprudence following R. v. B. (G), [1990] 2 S.C.R Some judges may prefer to specify the intent alleged in the indictment each time this phrase appears in the instructions. 3

4 Offence 244 If you are satisfied beyond a reasonable doubt of all these essential elements (and you have no reasonable doubt after considering the defence(s) (specify defences) about which I will instruct you) 3, you must find NOA guilty of discharging a firearm with intent (or, specify intent alleged). 3 4 To determine whether the Crown has proved these essential elements, consider the following questions. First Was the instrument a firearm? A firearm is a weapon with a barrel from which a shot, bullet or other object can be discharged, and, which is capable of killing or seriously injuring someone. (It includes any frame or receiver of a weapon with a barrel, as well as anything that can be made suitable for use as a firearm.) 4 Shotguns, rifles, pistols and revolvers are firearms. Unless you are satisfied beyond a reasonable doubt that the instrument involved was a firearm, you must find NOA not guilty. Your deliberations would be over. If you are satisfied beyond a reasonable doubt that the instrument involved was a firearm, then you must go on to the next question. 5 Second Did NOA intentionally discharge a firearm at another person (or, specify NOC or NO3P)? A person intentionally discharges a firearm at another person when he or she deliberately, as opposed to accidentally, points it in the direction of someone and fires 5. The bullet (shot or other thing) fired from the gun does not have to hit or hurt anybody Insert the bracketed words if appropriate. This instruction will have to be modified where the accused has a legal burden of proof, such as for mental disorder or non-insane automatism. Delete the bracketed words if they are not required or would be inappropriate. Where accidental or non-intentional discharge is advanced as a defence, the applicable instruction should be included here. In R. v. Foti, 2002 MBCA 122, the Court concluded that this offence requires proof of a wound (in a charge alleging an intent to wound). This decision is contrary to R. v. Jackson (2002), 58 O.R. (3d) 593 (C.A.). In Foti, the Court did not refer to Jackson. This provision was amended in 1995, and the Court in Foti refers to a body of law decided prior to the amendment. 4

5 Offence 244 To decide this question, consider all the circumstances. Use your common sense. Unless you are satisfied beyond a reasonable doubt that NOA intentionally discharged a firearm at another person (or, specify NOC or NO3P), you must find NOA not guilty of discharging a firearm with intent (or, specify intent alleged). Your deliberations would be over. If you are satisfied beyond a reasonable doubt that NOA intentionally discharged a firearm at another person (or, specify NOC or NO3P), you must go on to the next question. 6 Third In discharging the firearm, did NOA intend to wound (or, specify intent alleged) somebody (or, specify NOC or NO3P)? Where allegation is intent to wound: A person intends to wound when he or she means to injure someone in a way that breaks, cuts, pierces or tears the skin or some part of the person s body. It must be more than something trifling, fleeting or minor, such as a scratch. Where allegation is intent to maim: A person intends to maim when he or she means to cripple, mutilate or disable someone. Where allegation is intent to disfigure: A person intends to disfigure when he or she means to deform or deface someone. 5

6 Offence 244 Where allegation is intent to endanger life: A person intends to endanger life when he or she means to put someone in a situation or condition that could cause him or her to die. Where allegation is intent to prevent arrest or detention: A person intends to prevent arrest or detention when he or she discharges a firearm for the purpose of preventing the police (or, specify) from arresting or detaining any person. The Crown does not have to prove that an arrest or detention was actually prevented. Where more than one intent is specified: The Crown does not have to prove all (both) of these intents. Any one of them is enough. Nor do you have to agree on the same intent provided that each of you is satisfied beyond a reasonable doubt that NOA had one of them. To determine NOA s intent, you must consider all of the evidence, including anything said or done in the circumstances. You may infer, as a matter of common sense, that a person usually knows the predictable consequences of his or her actions, and means to bring them about. 7 However, you are not required to draw that inference about NOA. Indeed, you must not do so if, on the whole of the evidence, including (specify evidence of intoxication, mental disorder or other), you have a reasonable doubt whether NOA had one of the intents I have described to you. It is for you to decide. 7 This instruction is a plain-language expression of what in case law is referred to as the common sense inference that a person intends the natural and probable consequences of his or her actions. 6

7 Offence 244 In all cases: The person at whom NOA discharges the firearm does not have to be, although s/he may be, the same person (whose life (arrest or detention) NOA intended to endanger (prevent)) that NOA intended to wound (maim, or disfigure). 8 (review and relate relevant evidence to issue) Unless you are satisfied beyond a reasonable doubt that NOA intended to wound (or, specify relevant intent) (NOC, NO3P), when s/he intentionally discharged the firearm, you must find NOA not guilty of discharging a firearm with intent (or, specify intent alleged). 9 If you are satisfied beyond a reasonable doubt that NOA intended to wound (or, specify relevant intent) (NOC, NO3P) when s/he intentionally discharged the firearm, you must find NOA guilty of discharging a firearm with intent (or, specify intent alleged). 8 9 This instruction tracks the language of the Criminal Code, but need only be given when there is a factual foundation for it. There may be cases in which the accused may be convicted of a lesser offence, such as assault with a weapon. In those cases, this instruction and the second paragraph of 2 above will require modification. 7

8 Offence Offence Discharge Air 10 Gun (Pistol) with Intent (s ) 1 NOA is charged with discharging an air gun (pistol or, specify) with intent (or, specify). The charge reads: (read relevant parts of indictment or count) 2 You must not find NOA guilty of discharging an air gun (pistol or, specify) with intent (or, specify) unless the Crown has proved beyond a reasonable doubt that NOA is the person who committed the offence on the date and in the place described in the indictment. 11 Specifically, the Crown must prove each of the following essential elements beyond a reasonable doubt: 1. that the instrument was an air gun (pistol or, specify); 2. that NOA intentionally discharged an air gun (pistol or, specify) at another person (or, specify NOC or NO3P); and 3. that NOA, in discharging an air gun (pistol or, specify), intended to (specify intent alleged in the indictment) somebody (or, specify NOC or NO3P). Unless you are satisfied beyond a reasonable doubt that the Crown has proved all these essential elements, you must find NOA not guilty of discharging an air gun (pistol or, specify) with intent 12 (or, specify intent alleged) The section also applies to a compressed gas gun. Where identity is an issue, remember to include any further instructions that may be relevant (e.g. eyewitness identification, alibi, similar fact, etc.). Where date is an issue, the jury must be told that the Crown must prove that the offence occurred within the time frame indicated in the indictment. Where place is an issue, the jury must be told that the Crown must prove that some part of the offence occurred in the place indicated in the indictment. Generally, the Crown must prove the date and place specified in the indictment. However, where there is a variation between the evidence and the indictment, refer to s. 601(4.1) of the Criminal Code and the jurisprudence following R. v. B. (G), [1990] 2 S.C.R Some judges may prefer to specify the intent alleged in the indictment each time this phrase appears in the instructions. 8

9 Offence If you are satisfied beyond a reasonable doubt of all these essential elements (and you have no reasonable doubt after considering the defence(s) (specify defences) about which I will instruct you) 13, you must find NOA guilty of discharging an air gun (pistol, or specify) with intent (or, specify intent alleged). 3 4 To determine whether the Crown has proved these essential elements, consider the following questions. First Was the instrument an air gun (pistol or, specify)? An air gun (pistol or, specify) is a weapon with a barrel from which a shot, pellet or other object may be discharged by the use of compressed air or gas. The barrel may be short, like a pistol or revolver, or long, like a rifle. The barrel may be its manufactured length, or shortened. Unless you are satisfied beyond a reasonable doubt that the instrument involved was an air gun (or, specify), you must find NOA not guilty. Your deliberations would be over. If you are satisfied beyond a reasonable doubt that the instrument involved was an air gun (or, specify), then you must go on to the next question. 5 Second Did NOA intentionally discharge an air gun (pistol, or specify) at another person (or, specify NOC or NO3P)? A person intentionally discharges an air gun (pistol, or specify) at another person when he or she deliberately, as opposed to accidentally 14, points it in the direction of someone and fires it. The pellet (shot or other thing) fired from the gun does not have to hit or hurt anybody 15. To decide this question, consider all the circumstances. Use your common sense Insert the bracketed words if appropriate. This instruction will have to be modified where the accused has a legal burden of proof, such as for mental disorder or non-insane automatism. Where accidental or non-intentional discharge is advanced as a defence, the applicable instruction should be inserted here. In R. v. Foti, 2002 MBCA 122, the Court concluded that this offence requires proof of a wound (in a charge alleging an intent to wound). This decision is contrary to R. v. Jackson (2002), 58 O.R. (3d) 593 (C.A.). In Foti, the Court did not refer to Jackson. This provision was amended in 1995, and the Court in Foti refers to a body of law decided prior to the amendment. 9

10 Offence Unless you are satisfied beyond a reasonable doubt that NOA intentionally discharged an air gun (pistol, or specify) at another person (or, specify NOC or NO3P), you must find NOA not guilty of discharging an air gun (pistol, or specify) with intent (or, specify intent alleged). Your deliberations would be over. If you are satisfied beyond a reasonable doubt that NOA intentionally discharged an air gun (pistol, or specify) at another person (or, specify NOC or NO3P), you must go on to the next question. 6 Third In discharging an air gun (pistol, or specify), did NOA intend to wound (or, specify intent alleged) somebody (or, specify NOC or NO3P)? Where allegation is intent to wound: A person intends to wound when he or she means to injure someone in a way that breaks, cuts, pierces or tears the skin or some part of the person s body. It must be more than something trifling, fleeting or minor, such as a scratch. Where allegation is intent to maim: A person intends to maim when he or she means to cripple, mutilate or disable someone. Where allegation is intent to disfigure: A person intends to disfigure when he or she means to deform or deface someone. 10

11 Offence Where allegation is intent to endanger life: A person intends to endanger life when he or she means to put someone in a situation or condition that could cause him or her to die. Where allegation is intent to prevent arrest or detention: A person intends to prevent arrest or detention when s/he discharges an air gun (pistol) in order to prevent the police (or, specify) from arresting or detaining any person. The Crown does not have to prove that an arrest or detention was actually prevented. Where more than one intent is specified: The Crown does not have to prove all (both) of these intents. Any one of them is enough. Nor do you have to agree on the same intent provided that each of you is satisfied beyond a reasonable doubt that NOA had one of them. To determine NOA s intent, you must consider all of the evidence, including anything said or done in the circumstances. You may infer, as a matter of common sense, that a person usually knows the predictable consequences of his or her actions, and means to bring them about. 16 However, you are not required to draw that inference about NOA. Indeed, you must not do so if, on the whole of the evidence, including (specify evidence of intoxication, mental disorder or other), you have a reasonable doubt whether NOA had one of the intents I have described to you. It is for you to decide. 16 This instruction is a plain-language expression of what in case law is referred to as the common sense inference that a person intends the natural and probable consequences of his or her actions. 11

12 Offence In all cases: The person at whom NOA discharges the air gun (pistol, or specify) does not have to be, although s/he may be, the same person (whose life (arrest or detention) NOA intended to endanger (prevent)) that NOA intended to wound (maim or disfigure). 17 Unless you are satisfied beyond a reasonable doubt that NOA intended to wound (or, specify relevant intent) (NOC, NO3P), when s/he intentionally discharged the air gun (pistol, or specify), you must find NOA not guilty of discharging an air gun (pistol, or specify) with intent (or, specify intent alleged). 18 If you are satisfied beyond a reasonable doubt that NOA intended to wound (or, specify relevant intent) (NOC, NO3P) when s/he intentionally discharged the firearm, you must find NOA guilty of discharging an air gun (pistol, or specify) with intent (or, specify intent alleged) This instruction tracks the language of the Criminal Code, but need only be given when there is a factual foundation for it. There may be cases in which the accused may be convicted of a lesser offence, such as assault with a weapon. In those cases, this instruction and the second paragraph of 2 above will require modification. 12

13 Offence 264 Offence 264 Criminal Harassment (s. 264) 1 NOA is charged with criminal harassment. The charge reads: (read relevant parts of indictment or count) 2 You must not find NOA guilty of criminal harassment unless the Crown has proved beyond a reasonable doubt that NOA is the person who committed the offence on the date and in the place described in the indictment. 19 Specifically, the Crown must prove each of the following essential elements beyond a reasonable doubt: 1. that NOA (specify conduct) 20 NOC, NO3P 21 ; [1a. that NOA had no lawful authority to do what s/he did 22 ] 2. that NOA s conduct harassed NOC; 3. that NOA was aware that his/her conduct harassed NOC; 4. that NOA s conduct caused NOC to fear for his/her (or NO3P s) 23 safety; and 5. that NOC s fear was reasonable in the circumstances Where identity is an issue, remember to include any further instructions that may be relevant (e.g. eyewitness identification, alibi, similar fact, etc.). Where date is an issue, the jury must be told that the Crown must prove that the offence occurred within the time frame indicated in the indictment. Where place is an issue, the jury must be told that the Crown must prove that some part of the offence occurred in the place indicated in the indictment. Generally, the Crown must prove the date and place specified in the indictment. However, where there is a variation between the evidence and the indictment, refer to s. 601(4.1) of the Criminal Code and the jurisprudence following R. v. B. (G), [1990] 2 S.C.R. 3. This description should be in statutory terms, according to the wording in the indictment, such as repeatedly followed NOC or NO3P from place to place. According to s. 264(2)(a), (b) and (c), the alleged conduct must have been carried out in relation to another person or anyone known to them. According to s. 264(2)(d) (threatening), the threat must be directed to another person or any member of their family. It will be necessary to include this element only where there is some evidence of lawful authority. See paragraph [5] below. According to s. 264(1), the accused s conduct must cause another person to fear for their safety or the safety of anyone known to them. 13

14 Offence 264 Unless you are satisfied beyond a reasonable doubt that the Crown has proved all these essential elements, you must find NOA not guilty of criminal harassment. If you are satisfied beyond a reasonable doubt of all these essential elements [and you have no reasonable doubt 24 after considering the defence(s) (specify defences) about which I will instruct you], you must find NOA guilty of criminal harassment. 3 4 To determine whether the Crown has proved these essential elements, consider the following questions. First Did NOA (specify conduct) NOC, NO3P? Where allegation is repeated following : To follow someone repeatedly from place to place means to follow him or her more than once 25 from one place to another. It might, but does not have to be, to or from the same place each time. Where allegation is repeated communication : To communicate repeatedly with another person means to communicate with him or her more than once 26. The communication may be direct, or it may be indirect. It might, but does not have to be, in the same words or by the same means each time Insert the bracketed words if appropriate. This instruction will have to be modified where the accused has a legal burden of proof, such as for mental disorder or non-insane automatism. In R. v. Ryback (1996), 105 C.C.C. (3d) 24 (B.C.C.A.), the Court found that three episodes of communication amounted to repeatedly communicating. Whether more than once will suffice for conduct to be repeated will depend on the circumstances and evidence in each case. In R. v. Ohenhen, [2005] O.J. No (C.A.) the Ontario Court of Appeal warned that trial judges should be cautious in using the phrase more than once in all cases. The Court noted at paragraph 33: In some cases, the jury will have to consider the context in which the communications were made, the intent of the accused and possibly other factors to determine whether the communications were repeatedly made or were innocuous or accidental. Perhaps a more appropriate instruction would be to advise the jury that communication that occurs more than once can constitute repeated communications depending on the context and circumstances in which they were made. 26 See footnote

15 Offence 264 Where allegation is watching or besetting : To watch a place means to observe it with continuous attention. To beset a place means to be present at or near it in a troubling way. The place may be where another person lives or works or where that person carries on business or just happens to be. Where allegation is threatening : To engage in threatening conduct means to do or say something that, in all the circumstances, including the relationship between NOA and NOC, would cause a reasonable person to be intimidated. In all cases: Unless you are satisfied beyond a reasonable doubt that NOA (specify relevant conduct) NOC, you must find NOA not guilty of criminal harassment. Your deliberations would be over. If you are satisfied beyond a reasonable doubt that NOA (specify relevant conduct) NOC, you must go on to the next question. 15

16 5 [1a. - Did NOA have any lawful authority to do what s/he did?] 27 Offence Instructions Offence 264 To have lawful authority to do something means that the law specifically allows a person to do what NOA did in the circumstances in which he or she did it. In this case (describe alleged lawful authority). Unless you are satisfied beyond a reasonable doubt that NOA had no lawful authority to do as he or she did in the circumstances, you must find NOA not guilty of criminal harassment. Your deliberations would be over. If you are satisfied beyond a reasonable doubt that NOA had no lawful authority to do as he or she did in the circumstances, then you must go on to the next question. [6] Second, did NOA s conduct harass NOC? To prove that NOA harassed NOC, the Crown must prove beyond a reasonable doubt that NOA s conduct distressed, tormented or troubled NOC. Unless you are satisfied beyond a reasonable doubt that NOA s conduct harassed NOC, you must find NOA not guilty of criminal harassment. Your deliberations would be over. If you are satisfied beyond a reasonable doubt that NOA s conduct harassed NOC, you must go on to the next question. [7] Third Was NOA aware that his/her conduct harassed NOC? The Crown must prove beyond a reasonable doubt that NOA was aware that his/her conduct harassed NOC. To prove that NOA was aware that his/her conduct harassed NOC, the Crown must prove one of the following: 1. that NOA actually knew that his/her conduct harassed NOC; 2. that NOA knew there was a risk that his/her conduct harassed NOC and that NOA proceeded in the face of that risk; 27 It will be necessary to include this element only where there is some evidence of lawful authority. 16

17 Offence that NOA was aware of indications that his or her conduct harassed NOC, but deliberately chose to ignore them because NOA did not want to know the truth. Any one of these is sufficient to establish that NOA was aware that his or her conduct harassed NOC. You do not all have to agree on the same one. If each of you is satisfied about any one of them beyond a reasonable doubt, the Crown will have proved the element of awareness and you would have to go on to the next question. To determine whether NOA was aware that his/her conduct harassed NOC, you must consider all the evidence including anything said or done in the circumstances. You may infer, as a matter of common sense, that a person usually knows the predictable consequences of his or her actions, and means to bring them about. 28 However, you are not required to draw that inference about NOA. Indeed, you must not do so if, on the whole of the evidence, including (specify evidence of intoxication, mental disorder or other), you have a reasonable doubt whether NOA was aware that his or her conduct harassed NOC. It is for you to decide. Unless you are satisfied beyond a reasonable doubt that NOA was aware that his/her conduct harassed NOC, you must find NOA not guilty of criminal harassment. Your deliberations would be over. If you are satisfied beyond a reasonable doubt that NOA was aware that his or her conduct harassed NOC, you must go on to the next question. 8 Fourth Did NOA s conduct cause NOC to fear for his/her own (or NO3P s) safety? The Crown must prove beyond a reasonable doubt that what NOA did or said caused NOC to fear for his/her own (or NO3P s) 29 safety. In deciding whether this essential element has been proved, consider all the evidence This instruction is a plain-language expression of what in case law is referred to as the common sense inference that a person intends the natural and probable consequences of his or her actions. The French version of section 264(1) indicates clearly that NO3P must be someone personally known to NOC. 17

18 Offence 264 Unless you are satisfied beyond a reasonable doubt that NOA s conduct caused NOC to fear for his/her own safety, you must find NOA not guilty of criminal harassment. Your deliberations would be over. If you are satisfied beyond a reasonable doubt that NOA s conduct caused NOC to fear for his/her own safety, you must go on to the next question. 9 Fifth Was NOC s fear reasonable in all the circumstances? You must consider whether NOC s fear for his/her own (or NO3P s) safety because of NOA s conduct was reasonable in all the circumstances. Ask yourselves whether a reasonable person in the same circumstances as NOC would fear for his or her own (or NO3P s) safety as a result of what NOA did. 30 Unless you are satisfied beyond a reasonable doubt that NOC s fear for his/her own safety was reasonable in all the circumstances, you must find NOA not guilty of criminal harassment. If you are satisfied beyond a reasonable doubt that NOC s fear for his/her own safety was reasonable in all the circumstances, you must find NOA guilty of criminal harassment. 30 In R.v. Sillipp (1997), 120 C.C.C. (3d) 384 (Alta. C.A.), the Court said that a jury could also be instructed on the particular vulnerabilities of the complainant. 18

19 Offence Offence Threatening (Death or Bodily Harm) (s (1)(a)) (Last revised June 2013) 1 NOA is charged with threatening (specify threat). The charge reads: (read applicable parts of indictment or count) 2 You must not find NOA guilty of threatening, unless the Crown has proved beyond a reasonable doubt that NOA is the person who committed the offence on the date and in the place described in the indictment. 31 Specifically, the Crown must prove each of the following essential elements beyond a reasonable doubt: 1. that NOA made a threat to cause NOC s (or, NO3P s) death or to cause NOC (or, NO3P) bodily harm; and 2. that NOA made the threat knowingly. Unless you are satisfied beyond a reasonable doubt that the Crown has proved both of these essential elements, you must find NOA not guilty of threatening. If you are satisfied beyond a reasonable doubt of both of these essential elements (and you have no reasonable doubt after considering the defence(s) (specify defences) about which I will instruct you) 32, you must find NOA guilty of threatening. 3 To determine whether the Crown has proved these essential elements, consider the following questions. [4] First Did NOA make a threat to cause NOC s (or, NO3P s) death or to cause NOC (or, NO3P) bodily harm? 31 Where identity is an issue, remember to include any further instructions that may be relevant (e.g. eyewitness identification, alibi, similar fact, etc.). Where date is an issue, the jury must be told that the Crown must prove that the offence occurred within the time frame indicated in the indictment. Where place is an issue, the jury must be told that the Crown must prove that some part of the offence occurred in the place indicated in the indictment. Generally, the Crown must prove the date and place specified in the indictment. However, where there is a variation between the evidence and the indictment, refer to s. 601(4.1) of the Criminal Code and the jurisprudence following R. v. B. (G), [1990] 2 S.C.R Insert the bracketed words if appropriate. This instruction will have to be modified where the accused has a legal burden of proof, such as for mental disorder or non-insane automatism. 19

20 Offence The Crown must prove beyond a reasonable doubt that NOA made a threat to cause NOC s (or, NO3P s) death or to cause NOC (or, NO3P) bodily harm. A threat may be made by words or gestures or in some other way. It may be made by speaking, writing, or in some other manner intending to make it known to another person. 33 A threat to cause death to another person is a threat to kill him or her. A threat to cause bodily harm to another person is a threat to cause that person something more than just a slight injury or brief pain. Bodily harm is any hurt or injury, including psychological harm 34, that interferes with a person s health or comfort and is more than brief or fleeting, or minor in nature. To decide whether NOA s conduct amounted to a threat to cause death or bodily harm, ask yourselves whether a reasonable person, in all the circumstances, would consider that NOA s conduct amounted to a threat to cause death or serious bodily harm. For example, there is no threat where a reasonable person, in the circumstances, would understand that the words were spoken or written, or the gestures were made, in jest or in such a way that they could not be taken seriously. Take into account: the circumstances in which the words or gestures were used the manner in which the words or gestures were communicated the person to whom they were addressed the nature of any prior or existing relationship between the parties Unless you are satisfied beyond a reasonable doubt that NOA made a threat to cause NOC s (or, NO3P s) death or to cause NOC (or, NO3P) bodily harm, you must find NOA not guilty of threatening. Your deliberations would be over. If you are satisfied beyond a reasonable doubt that NOA made a threat to cause death or bodily harm, then you must go on to the next question When the threat is uttered to a third person, the following instruction should be added: The threat may be expressed to someone other than the person threatened. In fact, the person threatened may not even be aware of the threat. Delete including psychological harm where there is no evidence on this issue. 20

21 Offence Second Did NOA make the threat knowingly? The Crown must prove beyond a reasonable doubt that NOA made the threat knowingly. A person makes a threat knowingly when he or she means it to intimidate or to be taken seriously by someone. 35 The Crown does not have to prove that NOC, (or NO3P) felt threatened or frightened 36. Nor does the Crown have to prove that NOA meant to carry out the threat. To decide whether NOA made the threat knowingly, you should take into account all of the evidence, including: the words or gestures used the context in which the words or gestures were used NOA s mental state 37 at the time the words or gestures were used You may infer, as a matter of common sense, that a person usually knows the predictable consequences of his or her actions, and means to bring them about. 38 However, you are not required to draw that inference about NOA. Indeed you must not do so if, on the whole of the evidence, including (specify evidence of intoxication, mental disorder or other) you have a reasonable doubt whether NOA made the threat knowingly. It is for you to decide. Unless you are satisfied beyond a reasonable doubt that NOA uttered the threat knowingly, you must find NOA not guilty of threatening death or bodily harm This instruction conforms with R. v. O Brien, 2013 SCC 2. When the threat has been uttered to a third person, the following instruction should be added: The Crown does not have to prove that NOA threatened NOC directly, or that the threat was passed along to NOC. Where there is evidence that puts in issue the accused s mental state, for example, intoxication or diminished capacity, the appropriate instruction should be inserted here. This instruction is a plain-language expression of what in case law is referred to as the common sense inference that a person intends the natural and probable consequences of his or her actions. 21

22 Offence If you are satisfied beyond a reasonable doubt that NOA uttered the threat knowingly, you must find NOA guilty of threatening death or bodily harm. 22

23 Offence 266 Offence 266 Assault (ss. 265(1)(a); 266) 39 1 NOA is charged with assault. The charge reads: (read applicable parts of indictment or count) 2 You must find NOA not guilty of assault unless the Crown has proved beyond a reasonable doubt that NOA is the person who committed the offence on the date and in the place described in the indictment. 40 Specifically, the Crown must prove each of the following essential elements of the offence beyond a reasonable doubt: 1. that NOA applied force to NOC; 2. that NOA intentionally applied the force; 3. that NOC did not consent to the force that NOA applied; and 4. that NOA knew that NOC did not consent to the force that NOA applied. Unless you are satisfied beyond a reasonable doubt that the Crown has proved all these essential elements, you must find NOA not guilty of assault This instruction only covers assault as defined by s. 265(1)(a). It is not appropriate to use this instruction for s. 265(1)(b) (threatening assault) or s. 265(1)(c) (wearing or carrying a weapon while impeding or begging). Where the identity is an issue, remember to include any further instructions that may be relevant (e.g., eyewitness identification, alibi, similar fact, etc.). Where date is an issue, the jury must be told that the Crown must prove that the offence occurred within the time frame indicated in the indictment. Where place is an issue, the jury must be told that the Crown must prove that some part of the offence occurred in the place indicated in the indictment. Generally, the Crown must prove the date and place specified in the indictment. However, where there is a variation between the evidence and the indictment, refer to s. 601(4.1) of the Criminal Code and the jurisprudence following R. v. B. (G), [1990] 2 S.C.R

24 Offence 266 If you are satisfied beyond a reasonable doubt of all of these essential elements (and you have no reasonable doubt after considering the defence(s) (specify defences) about which I will instruct you) 41, you must find NOA guilty of assault. 3 4 To determine whether the Crown has proved these essential elements, consider the following questions. First Did NOA apply force to NOC? Force includes any physical contact with another person, even a gentle touch. The contact may be direct, for example, touching a person with a hand or other part of the body, or indirect, for example, touching a person with an object. So, whenever I refer to the application of force, I mean any physical contact. Unless you are satisfied beyond a reasonable doubt that NOA applied force to NOC, you must find NOA not guilty. Your deliberations would be over. If you are satisfied beyond a reasonable doubt that NOA applied force to NOC, you must go on to the next question. [5] Second Did NOA intentionally apply the force? The physical contact must be intentional, as opposed to accidental. To decide whether NOA applied force intentionally, you will have to consider all the evidence, including anything said or done in the circumstances. Unless you are satisfied beyond a reasonable doubt that NOA intentionally applied force to NOC, you must find NOA not guilty. Your deliberations would be over. If you are satisfied beyond a reasonable doubt that NOA intentionally applied force to NOC, you must go on to the next question. 41 Insert the bracketed words if appropriate. This instruction will have to be modified where the accused has a legal burden of proof, such as for mental disorder or non-insane automatism. 24

25 Offence Third Did NOC consent to the force that NOA applied? To decide whether NOC consented to the physical contact, you must consider NOC s state of mind. Consider all the evidence, including the circumstances surrounding NOA s physical contact with NOC, to decide whether NOC consented to it. Take into account any words or gestures, whether by NOA or NOC, and any other indication of NOC s state of mind at the time. Just because NOC submitted or did not resist does not mean that NOC consented to what NOA did. Consent requires NOC s voluntary agreement, without the influence of force, threats, fear, fraud or abuse of authority 42, to let the physical contact occur. Where there is evidence that the scope of the consent may have been exceeded, give the following instruction: 43 When a person consents to physical contact, that consent covers only a certain amount of force. It does not cover force that goes beyond what NOC consented to. Unless you are satisfied beyond a reasonable doubt that NOC did not consent to the application of force, you must find NOA not guilty. Your deliberations would be over. If you are satisfied beyond a reasonable doubt that NOC did not consent to the application of force, you must go on to the next question. 42 If these issues arise on the evidence, it will be necessary to identify them and to review the relevant evidence. Note, however, that the ways in which consent can be vitiated are not limited, although some are identified expressly in Criminal Code, ss. 265(3) and Further, the forms of incapacity to consent are not limited. For example, incapacity might arise from intoxication by alcohol or other drugs or from mental disability. Whenever this issue arises on the evidence, an appropriate instruction will have to be given. Some guidance may be derived from R. v. M.A.P., [2004] N.S.J. No. 55 (C.A.), 2004 NSCA 27; and R. v. Siddiqui, 2004 BCSC Where the charge arises from a sporting activity, an instruction should be added along the lines that consent is valid as long as the intentional application of force to which one consents is within the customary norms and rules of the game. See R. v. Jobidon, [1991] 2 S.C.R. 714,

26 Offence Fourth Did NOA know that NOC did not consent to the force in question? The Crown must prove beyond a reasonable doubt that NOA was aware that NOC did not consent to the physical contact in question. To prove that NOA was aware of NOC s lack of consent, the Crown must prove any one of the following: 1. that NOA actually knew that NOC did not consent; 2. that NOA knew there was a risk that NOC did not consent and that NOA proceeded in the face of that risk; 3. that NOA was aware of indications that NOC did not consent, but deliberately chose to ignore them because NOA did not want to know the truth. Any one of these would be sufficient to establish NOA s awareness of NOC s lack of consent. You do not all have to agree on the same one. If each of you is satisfied about any one of them beyond a reasonable doubt, the Crown will have proved the essential element of knowledge and you would have to go on to the next question. If the person charged advances a defence of honest but mistaken belief in consent, add this instruction: NOA s position is that s/he was unaware that NOC did not consent. In fact, it is his/her position that s/he honestly believed that NOC consented to the physical contact in question. A belief is a state of mind, in this case, NOA s state of mind. To determine whether NOA honestly believed that NOC consented to the physical contact in question, you should consider all the circumstances surrounding that activity. Take into account any words or gestures, whether by NOA or NOC, and any other indication of NOA s state of mind at the time. NOA s belief that NOC consented to the physical contact must be an honest belief, but it does not have to be reasonable. However, you must consider whether there were reasonable grounds for NOA s belief; the presence or absence of reasonable grounds may 26

27 Offence 266 help you decide whether NOA s belief was honest. Look at all the circumstances in deciding this issue. Do not focus on only one and ignore the rest. You must consider all the evidence, including anything said or done in the circumstances. Use common sense. NOA does not have to prove that s/he honestly believed that NOC consented to the physical contact. Rather, the Crown must prove beyond a reasonable doubt that NOA had no such belief. In all cases: Unless you are satisfied beyond a reasonable doubt that NOA knew that NOC did not consent (or, that NOA did not honestly believe that NOC consented) 44 to the physical contact in question, you must find NOA not guilty. If you are satisfied beyond a reasonable doubt that NOA knew that NOC did not consent (or, that NOA did not honestly believe that NOC consented) 45 to the physical contact in question, you must find NOA guilty of assault Insert the bracketed words if the jury has been instructed on mistaken belief in consent. Insert the bracketed words if the jury has been instructed on mistaken belief in consent. 27

28 Offence 267-A Offence 267-A Assault With a Weapon (s. 267(a)) 46 1 NOA is charged with assault with a weapon. The charge reads: (read applicable parts of indictment or count) 2 You must find NOA not guilty of assault with a weapon unless the Crown has proved beyond a reasonable doubt that NOA is the person who committed the offence on the date and in the place described in the indictment. 47 Specifically, the Crown must prove each of the following essential elements of the offence beyond a reasonable doubt: 1. that NOA applied force to NOC; 2. that NOA intentionally applied the force; 3. that NOC did not consent to the force that NOA applied; 4. that NOA knew that NOC did not consent to the force that NOA applied; and 5. that NOA (carried, used, threatened to use) a weapon (or, imitation weapon). 48 Unless you are satisfied beyond a reasonable doubt that the Crown has proved all these essential elements, you must find NOA not guilty of assault with a weapon This instruction only covers assault as defined by s. 265(1)(a). It is not appropriate to use this instruction for s. 265(1)(b) (threatening assault) or s. 265(1)(c) (wearing or carrying a weapon while impeding or begging). Where the identity is an issue, remember to include any further instructions that may be relevant (e.g., eyewitness identification, alibi, similar fact, etc.). Where date is an issue, the jury must be told that the Crown must prove that the offence occurred within the time frame indicated in the indictment. Where place is an issue, the jury must be told that the Crown must prove that some part of the offence occurred in the place indicated in the indictment. Generally, the Crown must prove the date and place specified in the indictment. However, where there is a variation between the evidence and the indictment, refer to s. 601(4.1) of the Criminal Code and the jurisprudence following R. v. B. (G), [1990] 2 S.C.R The parenthetical reference to or, imitation weapon, and all later similar references, should only be inserted where there is evidence that an imitation weapon was involved. 28

29 Offence 267-A If you are satisfied beyond a reasonable doubt of each of these essential elements (and you have no reasonable doubt after considering the defence(s) (specify defences) about which I will instruct you) 49, you must find NOA guilty of assault with a weapon. 3 4 To determine whether the Crown has proved these essential elements, consider the following questions carefully: First Did NOA apply force to NOC? Force includes any physical contact with another person, even a gentle touch. The contact may be direct, for example, touching a person with a hand or other part of the body, or indirect, for example, touching a person with an object. So, whenever I refer to the application of force, I mean any physical contact. Unless you are satisfied beyond a reasonable doubt that NOA applied force to NOC, you must find NOA not guilty. Your deliberations would be over. If you are satisfied beyond a reasonable doubt that NOA applied force to NOC, you must go on to the next question. [5] Second Did NOA intentionally apply the force? The physical contact must be intentional, as opposed to accidental. To decide whether NOA applied force intentionally, you will have to consider all the evidence, including anything said or done in the circumstances. Unless you are satisfied beyond a reasonable doubt that NOA intentionally applied force to NOC, you must find NOA not guilty. Your deliberations would be over. If you are satisfied beyond a reasonable doubt that NOA intentionally applied force to NOC, you must go on to the next question. 49 Insert the bracketed words if appropriate. This instruction will have to be modified where the accused has a legal burden of proof, such as for mental disorder or non-insane automatism. 29

30 Offence 267-A 6 Third Did NOC consent to the physical contact that NOA made? To decide whether NOC consented to the physical contact, you must consider NOC s state of mind. Consider all the evidence, including the circumstances surrounding NOA s physical contact with NOC, to decide whether NOC consented to it. Take into account any words or gestures, whether by NOA or NOC, and any other indication of NOC s state of mind at the time. Just because NOC submitted or did not resist does not mean that NOC consented to what NOA did. Consent requires NOC s voluntary agreement, without the influence of force, threats, fear, fraud or abuse of authority 50, to let the physical contact occur. Where there is evidence that the scope of the consent may have been exceeded, give the following instruction: 51 When a person consents to physical contact, that consent covers only a certain amount of force. It does not cover force that goes beyond what NOC consented to. Unless you are satisfied beyond a reasonable doubt that NOC did not consent to the application of force, you must find NOA not guilty. Your deliberations would be over. If you are satisfied beyond a reasonable doubt that NOC did not consent to the application of force, you must go on to the next question. 50 If these issues arise on the evidence, it will be necessary to identify them and to review the relevant evidence. Note, however, that the ways in which consent can be vitiated are not limited, although some are identified expressly in Criminal Code, ss. 265(3) and Further, the forms of incapacity to consent are not limited. For example, incapacity might arise from intoxication by alcohol or other drugs or from mental disability. Whenever this issue arises on the evidence, an appropriate instruction will have to be given. Some guidance may be derived from R. v. M.A.P., [2004] N.S.J. No. 55 (C.A.), 2004 NSCA 27; and R. v. Siddiqui, 2004 BCSC Where the charge arises from a sporting activity, an instruction should be added along the lines that consent is valid as long as the intentional application of force to which one consents is within the customary norms and rules of the game. See R. v. Jobidon, [1991] 2 S.C.R. 714,

31 Offence 267-A 7 Fourth Did NOA know that NOC did not consent to the force in question? The Crown must prove beyond a reasonable doubt that NOA was aware that NOC did not consent to the physical contact in question. To prove that NOA was aware of NOC s lack of consent, the Crown must prove any one of the following: 1. that NOA actually knew that NOC did not consent; 2. that NOA knew there was a risk that NOC did not consent and that NOA proceeded in the face of that risk; 3. that NOA was aware of indications that NOC did not consent, but deliberately chose to ignore them because NOA did not want to know the truth. Any one of these would be sufficient to establish NOA s awareness of NOC s lack of consent. You do not all have to agree on the same one. If each of you is satisfied about any one of them beyond a reasonable doubt, the Crown will have proved the essential element of knowledge. If the person charged advances a defence of honest but mistaken belief in consent, add this instruction: NOA s position is that s/he was unaware that NOC did not consent. In fact, it is his/her position that s/he honestly believed that NOC consented to the physical contact in question. A belief is a state of mind, in this case, NOA s state of mind. To determine whether NOA honestly believed that NOC consented to the physical contact in question, you should consider all the circumstances surrounding that activity. Take into account any words or gestures, whether by NOA or NOC, and any other indication of NOA s state of mind at the time. NOA s belief that NOC consented to the physical contact must be an honest belief, but it does not have to be reasonable. However, you must consider whether there were reasonable grounds for NOA s belief; the presence or absence of reasonable grounds may 31