Any lawyer who has read Jobidon could see this coming: consent to the intentional application of force turning into a three ring circus – not a boxing ring mind you as that is “within the customary norms and rules of the game” and has “significant social value.” No, the atmosphere conjured is of course as a result of the breaking news on Jian Ghomeshi and although his situation will continue to be played out in social media, the legal community is welcoming the attention. What is the status of the law on the issue of sexual activity which is intended to and does cause injury but which is entered into by consenting adults? This is where issues of consent to assaults and sexual assaults intersect and yet the law thanks to Jobidon and JA is far from providing a bright line between the two.
There is a lawyerly adage that bad facts make bad law and perhaps the Jobidon case fits that sentiment. Jules Jobidon was charged with unlawful act manslaughter as a result of a consensual barroom brawl, which Jobidon and the deceased took outside to settle. Jobidon quickly took the upper hand and within seconds the receipient of the punches lay unconscious and subsequently died. Did the deceased consent to a fistfight? Yes, but is consent a defence or phrased differently, does the Crown need to prove lack of consent as part of the actus reus of assault. On the face, s. 265(3) of the Code does not preclude consent being given under the Jobidon circumstances but underneath the Code, “illuminating” the Code as Justice Gonthier sees it in Jobidon, is the common law. It is the common law, through English authorities, most notably the 1980 House of Lords decision in Attorney General Reference, which stands for the proposition, enunciated in Jobidon, that intentional application of force, which causes bodily harm vitiates consent on public policy grounds. This “judge-made” policy is based upon, in part, the social uselessness of brawls. Society has changed from a macho flexing of muscles and no longer views physicality as a virtue, although, as Justice Gonthier points out, we still enjoy a “socially valuable cultural product” like stunts and daredevil activities. For Justice Sopinka however, Jobidon is guilty as charged, not because the common law as the archival repository of when consent can or cannot be available on an assault charge, but because Jobidon’s actions were outside the scope of the consent given by the deceased. This social utility view versus the scope of consent view will permeate the law on sexual assault as well.
The law on sexual assault developed differently. The watershed case is of course Ewanchuk, the case that launched a number of controversies both inside the legal community and outside when Justice McClung sent his letter of protest to the National Post. Leaving that aside, the Ewanchuk case is in some respects a breath of fresh air, a case dealing head on with sexual myths and stereotypes that a woman invites sexual advances through her dress and character. Famously, the case is known as the “no means no” decision, where a woman or man who does not clearly consent to sexual activity is not consenting to sexual activity. It has shades of the exchange between Elizabeth and Mr. Collins from Pride and Prejudice wherein he suggests her refusal of his marriage proposal is designed to increase his “love by suspense” as she “secretly” means to accept him. The Ewanchuk decision makes it clear, there is no implied consent in a woman’s refusal as consent must be freely and voluntarily given not assumed or implied. In this situation, public policy considerations were required to protect the vulnerable and to realign public expectations and realities.
However, at some point the unique issues surrounding sexual assaults and the common law approach to assaults would clash. In 1992, the English House of Lords in the Brown case split on the intersection of sex and harm. In that case a number of individuals were charged with assault causing bodily harm. These men belonged to a group of homosexual sado-masochists who for a long period of time regularly met in “torture” rooms, as the House of Lords described it, “for the purpose of indulging in acts of sexual violence against one another, as a means of sexual fulfilment.” No permanent injuries were sustained and no medical treatment was sought. On occasion the sessions were videotaped for their own private viewing. None of the men involved complained to the police. The police involvement resulted from an officer “who stumbled by chance” on the videotapes. Indeed, the activity was viewed as private and consensual. The House of Lords was divided in decision on the case. the majority upheld the long held view, as enunciated by Jobidon, that there is no consent to bodily harm that is intended and caused. In the majority’s view
“appetites of sadists and masochists can only be satisfied by the infliction of bodily harm and that the law should not punish the consensual achievement of sexual satisfaction. There was no evidence to support the assertion that sado-masochist activities are essential to the happiness of the appellants or any other participants but the argument would be acceptable if sado-masochism were only concerned with sex, as the appellants contend. In my opinion sado- masochism is not only concerned with sex. Sado-masochism is also concerned with violence… In principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty. The violence of sado-masochistic encounters involves the indulgence of cruelty by sadists and the degradation of victims. Such violence is injurious to the participants and unpredictably dangerous. I am not prepared to invent a defence of consent for sado-masochistic encounters which breed and glorify cruelty and result in offences under ss. 47 and 20 of the 1861 Act.”
The dissent cautioned against state interference into the private lives of citizens in favour of self-autonomy and "that the state should interfere with the rights of an individual to live his or her life as he or she may choose no more than is necessary to ensure a proper balance between the special interests of the individual and the general interests of the individuals who together comprise the populace at large." This caution to not extend the criminal law into areas of private choice and taste is consistent with Chief Justice McLachlin’s caution in the Mabior case that “The principal objective of the criminal law is the public identification of wrongdoing qua wrongdoing which violates public order and is so blameworthy that it deserves penal sanction.”
Interestingly, the majority of my first year criminal law class agreed with the minority and likened the case to a sporting event, wherein all of the participants were aware of the “rules” beforehand and that the practices were within those enunciated rules. Again, there appears to be a tension between social utility, public interest, and the specific facts of a particular case. In the Brown case, the right facts did not produce a satisfactory result and there is an aura in the case of the criminal law overreaching into the decision making powers of an individual. Although in Justice Gonthier’s view in Jobidon “all criminal law is paternalistic,” the law is still a reflection of who we are as a society and what we stand for and cannot possibly be distilled down to “but it’s for your own good” argument. Certainly the English Law Reform Commission in a number of Consultation Papers has raised similar concerns. For further reading on the subject, read Windsor Law professor David Tanovich’s paper entitled “Criminalizing Sex At The Margins.”
Subsequent Canadian cases, at the provincial appellate level considered the Brown case with facts involving bodily harm caused during sexual activity such as in the Ontario Court of Appeal 1995 Welch case and the 2013 Zhao case. Although those cases differ in the facts, Welch was concerned with consensual sado-masochism sexual activity and the Zhao was not, both cases, relying on Jobidon, found bodily harm in the course of a consensual sexual relationship vitiated consent. However, in discussing the Welch case at paragraph 79 of the Zhao case, Justice Tulloch stated:
“Ultimately, much of the analysis in Welch is focused on the sado-masochistic nature of the circumstances of that case. I am neither persuaded that the authorities cited by the appellant nor the conclusions reached in Welch are particularly helpful to establish a generally applicable standard or threshold by which consent is vitiated in sexual assault causing bodily harm cases. Furthermore, the social utility of intimate sexual relationships is significantly different from that of consensual bar fights, as such, the underlying policy reasons for the ruling in Jobidon cannot be generally applicable in a sexual context as suggested by the ruling in Welch.”
Justice Tulloch identifies what is wrong with Jobidon: how can the Jobidon fistfight scenario adequately provide authority in situations of consensual sexual activity that does, one would argue, produce self-satisfaction. The 2011 JA case from the Supreme Court of Canada has not clarified the law in this matter and in fact has left the door wide open. There are aspects of sexual activity resulting in bodily harm in the case but the case did not turn on this aspect but on whether an unconscious person can consent to sexual activity. Chief Justice McLachlin, relying on the two strands of authority found in Jobidon and Ewanchuk said no – consent must be of an operating mind and advance consent is not recognized in law. As for the “sleeping beauty” problem, when a spouse kisses a sleeping spouse, the law according to the chief Justice is not perfect and may result in unsatisfactory situations but there are more problems occasioned by relaxing the general rule, that there is no implied consent for sexual offences, than in permitting exceptions. Although legally we may understand the Chief Justice’s justification in reality her failure to provide a solution leaves an unsatisfactory atmosphere to the case. In many ways, Justice Fish’s dissent, which echoes Justice Sopinka in Jobidon, is attractive: it is the scope of the conduct which matters. This issue will clearly be at the forefront of a future Supreme Court of Canada decision.
Returning to Jian Ghomeshi, leaving aside the media tumult and without judging the various versions of the actual events, we should not be focusing on the conduct but on the scope of the conduct – was it beyond the scope of the consent given, not implied or assumed, but given in the context? This, I would suggest, would take us beyond the archives of the common law and into the realities of the modern age that in many respects is beyond myths and stereotypes and is a society where women, who are not in vulnerable situations, can make choices – consensual choices – to live their life on their own terms.