R. v. Sullivan, 2011 NLCA 6

Date: 2011 0110 Docket: 10/06 Citation : R. v. Sullivan , 2011 NLCA 6 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : IAN SULLIVAN APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Wells, Welsh and Barry, JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador St. John’s, NL 0108A03107 Appeal Heard: September 15, 2010 Judgment Rendered: January 10, 2011 Reasons for Judgment by Welsh, J.A. Reasons for Judgment (concurring in the result) by Wells, J.A., Concurred in by Barry, J.A. Counsel for the Appellant: John Lavers and Laura Brazil Counsel for the Respondent: Stephen R. Dawson

Welsh, J.A.: [1] Ian Sullivan was convicted of assault causing bodily harm as a result of a fist fight in which the complainant suffered abroken jaw. His appeal against conviction involves consideration and application of the law regarding consensual fist fights. BACKGROUND [2] The fist fight between Mr. Sullivan and the complainant occurred just after the bars closed in the early morning hours ofMarch 17, 2008. Both men and the witnesses to the fight who testified at the trial had been drinking and, according to their testimony,were at varying levels of intoxication.

After some discussion of the evidence, the trial judge concluded that the fight began as aconsensual fist fight. This is not in dispute. [3] However, during the course of the fight, the complainant suffered a broken jaw. The parties to the fight disagreed as towhether this was a result of the complainant being struck by Mr. Sullivan’s knee or from an “uppercut” with his fist. After discussingthe evidence on point, in her oral decision the trial judge concluded: … All this evidence leads me to accept [the complainant’s] evidence that he was indeed kneed by Mr. Sullivan. … … The consensual fight was a fist fight.

It wasn’t a kneeing fight or a kicking fight or anything else, so that by the kneeing [of thecomplainant], as I have deemed that it is, [Mr. Sullivan] did indeed knee him, to change a fist fight from the kneeing is to change thenature of the fight, therefore, the consent is vitiated, consent that [the complainant] gave to that fist fight. In addition to that fact, Mr.Sullivan uppercut [the complainant] a couple of times, and do [sic] so as hard as he could, shows that Mr. Sullivan intended to inflict asmuch harm as he could on [the complainant].

Now, the mental element of intention of assault causing bodily harm is satisfied by proof that the accused was reckless, whether his actscaused bodily harm to the defendant, and that’s the case of R. v. E.A. [incorrect cite omitted]. I find that this is the case at bar. … [4] The trial judge concluded that the elements of the offence of assault causing bodily harm had been proven beyond areasonable doubt, and found Mr. Sullivan guilty.

ISSUES [5] At issue in this appeal is whether the trial judge correctly applied the law in determining whether the complainant’s consentto a fist fight was vitiated during the course of the fight. Central to this question is whether the trial judge erred in her: (1) assessment ofthe evidence and findings of fact, and (2) analysis of the requisite element of intention. ANALYSIS General Principles [6]

Section 267(

b) of the Criminal Code establishes the offence of assault causing bodily harm,

section 265 specifies whatconstitutes an assault and

section 2 defines “bodily harm”. These sections provide, in relevant parts: 267. Every one who, in committing an assault, … (

b) causes bodily harm to the complainant, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on

summaryconviction and liable to imprisonment for a term not exceeding eighteen months. 265(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; … 2. “bodily harm” means any hurt or injury to a person that interferes with the health or comfort of the person and that is more thanmerely transient or trifling in nature; … The Crown proceeded by way of indictment. [7] I note that the

definitions of what constitutes an assault and bodily harm have been adjusted when applied in the context ofconsensual fist fights since the very nature of the activity involves an assault and exposure to hurt or harm. In R. v. Paice, 2005 SCC 22, [2005] 1 S.C.R. 339, at paragraph 12, Charron J., for the majority, used the language, “serious bodily harm” rather than simply“bodily harm”, the language used in

section 267(

b) of the Code. The question of what constitutes “serious” bodily harm must bedeveloped on a case-by-case basis. [8] In R. v. Jobidon, (SCC), [1991] 2 S.C.R. 714, and in R. v. Paice, supra, the Court discussed applicablegeneral principles regarding the criminal law of assault in the context of fist fights. In Jobidon the majority concluded that, while a

weaponless consensual fist fight between two adults is not an offence, the Criminal Code, for policy reasons, establishes boundarieslimiting the activity to which the parties may validly consent. Gonthier J. wrote, at page 766: The limitation demanded by s. 265 as it applies to the circumstances of this appeal is one which vitiates consent between adultsintentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl. …[Underlining in the original; bold added.] [9] Policy considerations are a fundamental component of the analysis.

In Jobidon, Gonthier J., summarizing the Canadianposition, stated, at page 761: Although there is certainly no crystal-clear position in the modern Canadian common law, still, when one takes into account thecombined English and Canadian jurisprudence, when one keeps sight of the common law’s centuries-old persistence to limit the legaleffectiveness of consent to a fist fight, and when one understands that s. 265 has always incorporated that persistence, the scale tips ratherheavily against the validity of a person’s consent to the infliction of bodily injury in a fight. [10] A distinction has been drawn by the courts between, for example, sporting activities which may involve applied force butwhich usually have a significant social value when played according to the rules of the game, and the “social uselessness” of fist fights(Jobidon, at page 762).

In Jobidon, Gonthier J. referred to other social policy considerations, at pages 763 to 764: Quite apart from the valueless nature of fist fights from the combatants’ perspective, it should also be recognized that consensual fightsmay sometimes lead to larger brawls and to serious breaches of the public peace. … Given the spontaneous, often drunken nature of many fist fights, I would not wish to push a deterrence rationale too far.

Nonetheless, itseems reasonable to think that, in some cases, common law limitations on consent might serve some degree of deterrence to these sorts ofactivities. … … … If aggressive individuals are legally permitted to get into consensual fist fights, and they take advantage of that license from time totime, it may come to pass that they eventually lose all understanding that that activity is the subject of a powerful social taboo. Theymay too readily find their fists raised against a person whose consent they forgot to ascertain with full certitude.

It is preferable thatthese sorts of omissions be strongly discouraged. [Underlining in the original.] Wholly apart from deterrence, it is most unseemly from a moral point of view that the law would countenance, much less provide abackhanded sanction to the sort of interaction displayed by the facts of this appeal.

The sanctity of the human body should militateagainst the validity of consent to bodily harm inflicted in a fight. [11] And finally, at pages 765 to 766, Gonthier stressed: … That the common law has developed a strong resistance to recognizing the validity of consent to intentional applications of force infist fights and brawls is merely one instance of the criminal law’s concern that Canadian citizens treat each other humanely and withrespect. [12] In light of the language of

section 267 of the Criminal Code, the development of the common law permitting fisticuffs betweenconsenting adults, and relevant policy considerations, the Court in Jobidon and Paice established parameters for consent. Consent willbe vitiated where serious bodily harm is both intended and caused. [13] The trial judge, in assessing the question of consent, focused on whether the nature of the fight had changed from what hadbeen reasonably contemplated in the first instance. That test, which is referenced in R. v. Schmidt, 2007 CarswellOnt 2228 (Ont. Sup. Ct.J.), relies on the decision in R. v.

MacTavish (1972), (NB CA), 8 C.C.C. (2d) 206 (NBCA). In light of the decisionsin Jobidon and Paice, I do not find that analytical approach helpful. The test to be applied when assessing whether consent has beenvitiated is whether serious bodily harm was caused and was intended. To adopt the MacTavish approach based on a change in the natureof the fight may permit citizens to consent to the types of physical altercations resulting in serious injury that, from a policy perspective,would not be acceptable under Jobidon and Paice.

Standard of Review on Appeal Against Conviction [14] An appeal against conviction is governed by

section 686 of the Criminal Code. That

section provides, in relevant parts: On the hearing of an appeal against a conviction …, the court of appeal (

a) may allow the appeal where it is of the opinion that (

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice; … [15] In determining whether the verdict is unreasonable, the test is whether the verdict is one that a properly instructed jury, actingjudicially, could reasonably have rendered.

In assessing whether this standard has been met, the court of appeal must consider theevidence, taking account of the advantageous position of the trial judge in assessing the testimony of witnesses (R. v. Biniaris, 2000 SCC15 , [2000] 1 S.C.R. 381, at paragraph 36; R. v. Beaudry, 2007 SCC 5 , [2007] 1 S.C.R. 190, at paragraphs 58 to 60; R.

v. Penney (2002), 2002 NFCA 24 , 164 C.C.C. (3d) 222 (NLCA)). [16] In Biniaris, Arbour J., for the Court, further explained: [37] … These examples demonstrate that in trials by judge alone, the court of appeal often can and should identify the defects in theanalysis that led the trier of fact to an unreasonable conclusion.

The court of appeal will therefore be justified to intervene and set aside averdict as unreasonable when the reasons of the trial judge reveal that he or she was not alive to an applicable legal principle or entered averdict inconsistent with the factual conclusions reached. … (Emphasis added.) [17] With respect to interfering with findings of fact made by the trial judge, in R. v. Clark, 2005 SCC 2 , [2005] 1 S.C.R.6, Fish J., for the Court, reiterated: [9] … But since I would in any event allow the appeal on other grounds, I find it sufficient for present purposes simply to reaffirmthe governing principles.

Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trialjudge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, beplainly identified. And it must be shown to have affected the result. “Palpable and overriding error” is a resonant and compendiousexpression of this well-established norm [authorities omitted]. [18] In R. v.

Lohrer, 2004 SCC 80 , [2004] 3 S.C.R. 732, Binnie J., for the Court, discussed the question of a miscarriage ofjustice based on an allegation of misapprehension of the evidence: [2] Morrissey [(1995), (ON CA), 97 C.C.C. (3d) 193 (ONCA)], it should be emphasized, describes a stringentstandard. The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather thanperipheral to the reasoning of the trial judge.

Once those hurdles are surmounted, there is the further hurdle (the test is expressed asconjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but“in the reasoning process resulting in a conviction”. See also: R. v. C.L.Y., 2008 SCC 2 , [2008] 1 S.C.R. 5, at paragraph 19. [19] In the appeal before this Court, Mr. Sullivan alleges both errors in law, which are subject to review on a standard of correctness,and errors of fact or mixed law and fact which engage the above principles.

Application of the Law [20] The complainant suffered a broken jaw as a result of the fight. It cannot be disputed that this constituted serious bodily harm. Accordingly, the first prong of the test, the requirement that serious bodily harm was caused, is satisfied. If it was also established thatsuch harm was intended, consent to the fist fight would be vitiated. Mr. Sullivan submitted that the trial judge erred by failing toproperly address the question of intention. [21] I begin with Mr. Sullivan’s suggestion that findings of fact must be established beyond a reasonable doubt. This propositionmust be rejected.

The trial judge makes findings and draws inferences of fact based on the evidence and uses these to determine whetherthe charge has been proven beyond a reasonable doubt. It is the elements of the offence, not the individual facts which must beestablished beyond a reasonable doubt. [22] Mr. Sullivan challenged the trial judge’s finding that he had used his knee to hit the complainant in the face during the fight. However, this Court will not interfere with a finding or inference of fact unless it was clearly wrong, unsupported by the evidence, orotherwise unreasonable.

The trial judge discussed the testimony of the various witnesses, was clearly aware of conflicts, and acceptedthe complainant’s evidence. There is no basis for concluding that she misapprehended the evidence or erred in her findings of fact. [23] Finally, Mr. Sullivan submitted that the Crown failed to establish the requisite intention to cause serious bodily harm. In R. v.Williams, 2003 SCC 41 , [2003] 2 S.C.R. 134, the Court commented on the mens rea required for aggravated assault. The samestandard applies to assault causing bodily harm.

Binnie J., for the Court, wrote: [22] The mens rea for aggravated assault is the mens rea for assault (intent to apply force intentionally or recklessly or being wilfullyblind to the fact that the victim does not consent) plus objective foresight of the risk of bodily harm: R. v. Godin, (SCC),[1994] 2 S.C.R. 484, at p. 485, and Cuerrier, [ (SCC), [1998] 2 S.C.R. 371], at para. 95. … [24] Applying this test to the case on appeal, it was not necessary for the Crown to prove that Mr. Sullivan intended to break thecomplainant’s jaw.

In the context of a consensual fist fight, in light of Paice, the necessary mens rea will be proven if it is establishedbeyond a reasonable doubt that force was applied recklessly and the risk of serious bodily harm was objectively foreseeable. [25] The facts as found by the trial judge lead to the conclusion that Mr. Sullivan acted recklessly in using his knee, particularlymaking contact with the complainant’s face. Serious bodily harm was objectively foreseeable as a result of this action. Further, Mr.Sullivan was reckless in applying what are described as “uppercuts” to the complainant’s face. Mr.

Sullivan testified that he appliedthese “as hard as I could”. While he followed this information with the comment, “At the time it wasn’t very hard because I was pretty[beat] out”, he also testified that “something had to give” when he administered those blows. In the circumstances, this action wasreckless. The risk of serious bodily harm was objectively foreseeable as a consequence. [26] The trial judge approached the question of intention from two perspectives. First, she considered that the use of Mr. Sullivan’sknee changed the nature of the fight.

As noted above, in my view, an analytical approach focusing on the nature of the fight is nothelpful. However, the trial judge went on to state that, in respect of the “uppercuts”, Mr. Sullivan struck the complainant “as hard as hecould” which, she found, “shows that Mr. Sullivan intended to inflict as much harm as he could on” the complainant. This, the judge

concluded, satisfied the mental element of intention because it constituted proof that Mr. Sullivan was reckless as to whether his actionswould cause bodily harm to the complainant, an element that must be proven to establish the offence of assault causing bodily harm. Inother words, the nature of the force used together with Mr. Sullivan’s intent were sufficient to establish that using his knee andadministering severe “uppercuts” during the fight were reckless actions. The requisite objective foresight of the risk of bodily harm isimplicit in the judge’s oral decision.

It cannot be said that the verdict is unreasonable or unsupported by the evidence. [27] It follows that the trial judge did not err in concluding that the elements of the offence of assault causing bodily harm wereproven beyond a reasonable doubt. During the course of what began as a consensual fist fight, consent was vitiated. The evidenceproved beyond a reasonable doubt both that Mr.

Sullivan caused the complainant serious bodily harm and that, by his reckless actionswhere the risk of serious bodily harm was objectively foreseeable, he intended to cause such harm. [28] Accordingly, the appeal is dismissed. ____________________________ B. G. Welsh, J.A. Wells, J.A.: [29] I have had the benefit of reading the reasons of Welsh, J.A. in this matter. She has clearly set out the relevant factual findingsand identified the issues. I agree with her proposed disposition of the appeal.

However, I do not share all of the views expressed in heranalysis of the law and its application to the facts of this case. [30] In particular, I do not share her view that the trial judge’s analysis of the issue in terms of whether the nature of the fight hadchanged from what had been reasonably contemplated in the first instance is not helpful. I am of the view that the analysis by the trialjudge is sufficient to support conviction, either on the basis that the initial consent to the fist fight was vitiated as a result of Mr.

Sullivanchanging the nature of the fight by resorting to “kneeing” the complainant, or on the basis that Mr. Sullivan administered numerous“uppercuts” with a reckless disregard as to whether they would result in serious bodily injury to the complainant. [31] Welsh J.A. analyzes and employs the discussion of the law in relation to consensual fist fights set out by Gonthier J., writingfor the majority, in R. v. Jobidon, (SCC), [1991] 2 S.C.R. 714.

In that case Gonthier J. stated clearly that his purposewas to clarify the law relating to the limits of consent in fist fighting, in light of the mixed record across provincial courts of appeal. Subsequent decisions would indicate there is still some uncertainty in this area. That uncertainty appears to derive, in the main, fromconflict between reasonable inferences, as to intention, that Jobidon would require be drawn from the conduct of the parties and the factthat

section 265 of the Criminal Code specifically requires proof of absence of consent in order to convict. As Sopinka J. wrote, inconcurring with Gonthier J. in the result but disagreeing as to the reasons, Parliament “made the absence of consent a specificrequirement and provided that this applied to all assaults without exception”.

He then expressed the view that “the absence of consentcannot be swept away by a robust application of judge-made policy”. [32] In seeking to apply Jobidon in a manner consistent with Parliament’s requirement that absence of consent be shown, judgesusually look to the record for evidence to indicate whether consent, expressed or implied, was ever given and, if it were, whether it waslawfully given or may have been subsequently vitiated. There are a variety of possibilities.

The evidence may indicate express orimplied agreement to a fight on a “no holds barred” basis or on the basis of accepting any serious bodily injury that might result from afist fight. The principles expressed in Jobidon would clearly reject such consent for purposes of

section 265. The evidence may,however, indicate agreement for a fight that is of a sparring nature, where concession would result from the insult of blows being landedrather than from any physical damage done. I can find nothing in Jobidon that would, in such a circumstance, preclude reliance on theevidence to establish that the force was applied with consent. In fact, Gonthier J. specifically recognizes in Jobidon at page 767, that hisformulation “avoids nullification of consent to intentional application of force which cause only minor hurt or trivial bodily harm”.

Theevidence may also show that a fight, expressly or impliedly agreed to involve only trivial or insulting injury, was changed during itscourse by one or both of the participants resorting to tactics intended to cause serious bodily injury, clearly vitiating the consentoriginally given. [33] In my view, the circumstances of this case are such that it is unnecessary to consider the social policy analysis at issue inJobidon in order to dispose of this appeal.

It is sufficient to analyze whether the trial judge erred in concluding that “the elements of theoffence of assault causing bodily harm in this case”, including absence of consent, have been proven beyond a reasonable doubt, for oneor other of the two reasons that she expressed as follows: ● The consensual fight was a fist-fight. It wasn’t a kneeing fight or a kicking fight or anything else, so that by the kneeing by Mr.Sullivan , as I have deemed that it is, he did indeed knee him, to change a fist-fight from the kneeing is to change the nature of the fight,therefore, the consent is vitiated, consent that Mr.

Bowen gave to that fist-fight. ● In addition to that fact, Mr. Sullivan uppercut Mr. Bowen a couple of times, and do[sic] so as hard as he could, shows that Mr.Sullivan intended to inflict as much harm as he could on Mr. Bowen. Now, the mental element of intention of assault causing bodily harm is satisfied by proof that the accused was reckless, whether his actscaused bodily harm to the defendant, and that’s the case of R v. E.A. [incorrect citation omitted]. I find that this is the case at bar.

The First Reason: Changed Nature Vitiating Consent [34] Whether consent to a fist fight is explicit or implied, it must be taken to have been given in the expectation that what follows

will be a fist fight, carrying with it some risk of serious bodily harm. It is difficult to imagine a fist fight that will not have some risk,however minimal, of serious bodily harm. Employing tactics which will change the nature of a consensual fist fight from an activityhaving some risk of serious bodily harm to an activity with a significant risk of serious bodily harm makes the fight essentially a fraud. As was recently decided in R. v. Mabior, 2010 MBCA 93, at paragraph 57, in the course of discussing the view expressed by Cory J. inR. v.

Cuerrier, (SCC), [1998] 2 S.C.R. 371: The criminal law definition of commercial fraud applied by Cory J. to sexual assault vitiates consent whenever there is a deceptionresulting in deprivation. The element of deception is satisfied by failure to disclose. The element of deprivation is satisfied by exposureto a significant risk of serious bodily harm. [35] The same can be said to occur when two parties consent to resolve their differences by a fist fight but during the course of thefight one resorts to more forceful means.

The element of deception is satisfied by failure to disclose a willingness to resort to applicationof force by a means more hazardous than normal punching with a fist. The element of deprivation is satisfied by exposure to asignificant risk of serious bodily harm. [36] I do not read Jobidon as requiring, or even supporting, a view that it is not helpful to consider that consent may have beenvitiated by the nature of the fight being changed as a result of one party employing tactics that had not been reasonably contemplated inthe first instance.

At pages 766 to 767, Gonthier J. wrote: How, and to what extent is consent limited? The law's willingness to vitiate consent on policy grounds is significantly limited. Common law cases restrict the extent to whichconsent may be nullified; as do the relevant policy considerations. The unique situation under examination in this case, a weaponless fistfight between two adults, provides another important boundary.

The limitation demanded by s. 265 as it applies to the circumstances of this appeal is one which vitiates consent between adultsintentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl. (This testentails that a minor's apparent consent to an adult's intentional application of force in a fight would also be negated.) This is the extent ofthe limit which the common law requires in the factual circumstances of this appeal. It may be that further limitations will be found toapply in other circumstances.

But such limits, if any, are better developed on a case by case basis, so that the unique features of thesituation may exert a rational influence on the extent of the limit and on the justification for it. Stated in this way, the policy of the common law will not affect the validity or effectiveness of freely given consent to participate inrough sporting activities, so long as the intentional applications of force to which one consents are within the customary norms and rulesof the game. Unlike fist-fights, sporting activities and games usually have a significant social value; they are worthwhile.

In this regardthe holding of the Saskatchewan Court of Appeal in R. v. Cey, supra, is apposite. The court's majority determined that some forms of intentionally applied force will clearly fall within the scope of the rules of the game,and will therefore readily ground a finding of implied consent, to which effect should be given.

On the other hand, very violent forms offorce which clearly extend beyond the ordinary norms of conduct will not be recognized as legitimate conduct to which one can validlyconsent. (Emphasis added.) [37] Clearly, Gonthier J. is saying that the application of common law principles to the proof of absence of consent, required bysection 265, would permit vitiation of consent on policy grounds only in limited circumstances.

One of those, he writes, is “consentbetween adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight orbrawl”. [38] Gonthier J. also says that “it may be that further limitations will be found to apply in other circumstances”. I suggest that onesuch circumstance occurs where consent is vitiated by reason of one party employing hazardous tactics that change the nature of theconsensual fight. I would also note that a change in the nature of a consensual fist fight is a circumstance that in many instances can bemore readily proven.

Thus, analysis of evidence indicating changed circumstances may be very helpful. The comments that Gonthier J.made about one of the decisions he considered, without criticism of the point, would support these views. At page 750 he wrote: In 1972, the Appeal Division of the New Brunswick Supreme Court rendered its decision in R. v. MacTavish (1972), (NB CA), 8 C.C.C. (2d) 206, a case in which two boys got in a schoolyard fight that ended when one boy sustained a broken nose fromkicks landed by the other.

The court simply assumed that consent was an operative defence to a charge of assault under (then) s. 244 ofthe Code -- the onus being on the Crown to prove absence of consent beyond a reasonable doubt. However, in strict terms that view wasobiter because, on the facts, while the injured boy had consented to a "fair fight", he had not consented to having his "head kicked in". He had not agreed to having that kind of force inflicted on him, nor had he agreed to that particular form of activity.

The court upheldthe conviction on that basis, not on the ground that the defence of consent must in all situations be legally effective. [39] Here, the trial judge having found, as a fact, that “the consensual fight was a fist fight … [not] a kneeing fight or a kickingfight…” and that Mr. Sullivan employed his knee to impact the complainant’s head, was clearly justified in concluding that the nature ofthe fight was changed and, as a result, consent was vitiated. The complainant’s jaw having been broken as a result of force intentionallyapplied by Mr.

Sullivan, in circumstances where consent was vitiated, the elements of the offence are readily established. That, alone, issufficient to require dismissal of the appeal. The Second Reason: Intention to Inflict Serious Injury [40] The second reason that the trial judge expressed to support her conclusion that the offence of assault causing bodily harm hadbeen proven beyond a reasonable doubt is that the two elements identified in Jobidon – intention to cause serious bodily harm andactually causing serious bodily harm – had been proven. She concluded that by delivering upper cuts to the complainant and doing so

“as hard as he could”, Mr. Sullivan was reckless as to whether his acts caused bodily harm to the complainant. [41] After Jobidan, it is very difficult to see how intention to cause serious bodily harm will ever be in question, in a consensual fistfight, since in virtually every fist fight between adults each is trying to inflict discomfort or bodily harm, even if only a knockout (aconcussion), that will be sufficiently serious to cause the opponent to concede.

Perhaps the emphasis should be on the stage at which theconduct moves into the realm of, in the words of Gonthier J., “very violent forms of force which clearly extend beyond the ordinarynorms of conduct”. Thus, an intention to cause a black eye or broken nose, or even a knockout, using only fists would be acceptablewhile an intention to cause more serious harm would not. [42] In reality, parties would not be that nuanced in the degree of force to be employed.

The probable result is that, in the case oflimitation by public policy, parties would have to accept the risk of criminal sanctions in every fight, since serious bodily harm could becaused and a court applying policy considerations could conclude that, in the circumstances, it was intended. [43] Limitation of consent as a result of public policy considerations need only become an issue where consent has not, on theevidence, been otherwise vitiated.

In this case, the trial judge correctly decided the complainant’s consent was vitiated as a result ofSullivan changing the nature of the fight when he chose to apply his knee to the complainant’s head. As noted above, that is, in itself,sufficient to allow this Court to dismiss the appeal. [44] Nevertheless, as the second reason was also relied upon by the trial judge, and accepted by Welsh J.A., it is appropriate tocomment on it. The trial judge cited R. v.

A.E., (2000) (ON CA), 35 C.R. (5th) 386, 146 C.C.C. (3d) 449 as authorityfor the proposition that “the mental element of intention of assault causing bodily harm is satisfied by proof that the accused wasreckless, whether his acts caused bodily harm to the defendant…”. In that case the Ontario Court of Appeal decided that “the Crownneed only prove that in acting as he did, the appellant was reckless whether or not his act caused harm to the baby for the mental elementto be established”. [45] In her draft reasons Welsh J.A. cites the decision in R. v.

Williams, 2003 SCC 41 , [2003] 2 S.C.R. 134, whichdetermined the mens rea required for aggravated assault and concluded that the same standard applies to assault causing bodily harm. Iagree. As a result I also agree with Welsh J.A. that, “it was not necessary for the Crown to prove that Mr. Sullivan intended to break thecomplainant’s jaw… the necessary mens rea will be proven if it is established beyond a reasonable doubt that force was appliedrecklessly and the risk of serious bodily harm was objectively foreseeable”. [46] There may, however, be some difficulty concluding, as Welsh J.A. does, that Mr.

Sullivan applying upper cuts as hard as hecould demonstrates intention to cause serious bodily harm, in the context of a consensual fist fight. In the ordinary course, coming to thatconclusion may require some evidence that such uppercuts would likely or, at the very least, could, break a jaw. It is not, however,necessary to resolve that in the circumstances of this case. On direct examination, in the course of Mr. Sullivan describing the mannerin which he was delivering “five or six” uppercuts to the complainant, the following exchange occurs: Q.

So do you feel that when you hit him with the upper cut that that may be was when his jaw was broken? A. Well, there was no other way like really coming up something had to give. Clearly, as Welsh J.A. concludes, Mr. Sullivan was reckless as to whether his actions would cause bodily harm to the complainant. Hisrecognition that something had to give puts that beyond reasonable doubt. I agree with her that that is sufficient to establish the mentalelement of the offence charged.

Accordingly, this appeal can be dismissed on that basis as well. [47] For the foregoing reasons, I agree with Welsh J.A. that this appeal must be dismissed. C. K. Wells I concur with Wells J.A.: L. D. Barry