Jay’s Story

About 3:30 p.m.

"No. I heard they're coming later tonight."

Rumors flew around Central High School. There had been a fight at a weekend dance, and one student

had been sent to the hospital with a broken jaw. Most students thought the trouble-makers came from the John J. Cully High School, their biggest football rivals. They expected the fights to carry on to the end of the football season.

Jay hated fights. He'd always been smaller than the other boys his age. In public school, he often got

beaten up. That was why his dad had signed him up for Tae Kwan Do. After he won a local championship, no one ever challenged him to a street fight.

By 3:30, everyone was crowding into the vacant lot. Sure enough, the troublemakers from the dance

were there, and the fight was on.

Jay watched from the sidelines, remembering how it felt to be too scared even to walk by a fight.

Street fights were dumb, he thought. People always got hurt. He turned and started to walk away.

"Hey, look at the runt wearing the Central jacket," hollered a voice.

"The midget's trying to run away," shouted another.

Two guys headed for Jay. One of them, the biggest, stuck out his foot to trip Jay. As he fell, Jay grabbed the guy's leg and twisted.

There was a loud crack. The big guy screamed. He lay on the ground with his leg stuck out at an awful angle.

The vacant lot was suddenly quiet. All the other fighters stopped and stared at Jay. Then they quietly disappeared. Jay left too.

An hour later, the police arrived at Jay's house to question him about the fight. His father listened and assured Jay that he had only defended himself. But the next day, the police returned with a summons. The summons said that Jay had been charged with "assault causing bodily harm", section 267(b) of the Criminal Code of Canada. There was a date on the summons for Jay to appear at Youth Court.

Assault: Questions to Think About

Suppose Jay has come to you for information. He wants to know what you think about his chances in

Youth Court. Your task is to advise him. Before you can do this you need to analyze the Crown's case (Part I) and the defense's case (Part II).

Part I: Did Jay commit an assault causing bodily harm?

The Crown will be trying to prove that Jay committed an assault causing bodily harm. Review the story facts and "the law" to help you answer the questions in the following checklist. Each question relates

to an important element of the offence.

1. Did Jay apply force to the "big guy"? What facts from the story support your conclusion?

2. Did Jay intend to apply this force? How did you arrive at this conclusion? How have you applied the law to the facts?

3. Did the "big guy" consent to this action by Jay? How did you arrive at this conclusion? How have

you applied the law to the facts?

4. Was the "big guy" seriously hurt as a result of what Jay did? What facts from the story support your conclusion?

5. What do you think? Did Jay commit an assault causing bodily harm?

Part II: Does Jay have a defense to this charge?

If you answered "No" to the first question, you have already identified issues in dispute and possible defenses. Review the story facts and the law to help you answer the questions in this checklist.

1. What did Jay intend when he twisted the "big guy's" leg? What facts from the story support your conclusion?

2. Did Jay actually think the "big guy" was consenting to a fight? How did you arrive at this conclusion? How have you applied the law to the fact

3. Was Jay acting in self-defense? How did you arrive at this conclusion? How have you applied the

law to the facts?

4. Was it necessary for Jay to use that amount of force to defend himself? How did you arrive at this conclusion? How have you applied the law to the facts?

5. What do you think? Does Jay have a defense to this charge?

Assault: the Legal Perspective

The offence: an assault is an unwelcome interference with a person. It is a form of violence.

Question: How does the law define an assault where the victim is hurt?

Answer: This definition sets out the elements of the offence.

Assault causing bodily harm occurs when...

a person intentionally uses force of any sort against another person this is done without the victim's consent or agreement

the victim is injured and the injury is something more serious and long-term than a scratch or small bruise.

o Source: sections 265 and 267 of the Criminal Code

Question: What does the word intentionally mean?

Answer: This is what two courts have said about intention:

A reflex action lacks the necessary intent to constitute an assault. o Case source: R. v. Wolfe (1974), 20 C.C.C. (2d) 382 (Ontario Court of Appeal)

An accused does not have to intend to cause bodily harm. What is necessary is that a

reasonable person would be able to predict that his or her actions posed a risk of bodily harm. o Case source: R. v. DeSousa (1992), 76 C.C.C. (3d) 124 (Supreme Court of Canada)

Question: How does the court decide if a victim has given consent?

Answer: This is what two courts have said about consent.

A person cannot consent to being injured in a serious way. o Case source: Jobidon v. The Queen (1991), 6 C.C.C. (3d) 454 (Supreme Court of Canada)

If the victim provokes the assault, the courts have said that the victim consented to the assault. o Case source: R. v. Oppal (1984), 43 C.R. (3d) 365 (B.C. Provincial Court)

Note: All elements of the offence need to be proved by the Crown in order to convict a person of this

offence. Those elements that are in doubt, in question, become legal issues. For example, whether or not the victim "consented" is often a legal issue in cases of assault.

The defense: people have the right to defend themselves from attack.

Question: What does the law say about acting in self-defense?

Answer: Here is how the defense is defined:

Self-defense occurs when...

a person attacks you when you have done nothing to provoke or cause the attack o Source: section 34 of the Criminal Code

you defend yourself but only with as much force as is necessary. o Source: section 34 of the Criminal Code

Question: What kinds of behaviour could be considered as provocation for an attack?

Answer: Provocation includes provocation by blows, words or gestures.

Source: section 36 of the Criminal Code

Question: How can a judge know how much force was necessary in the circumstances?

Answer: This is a difficult decision to make and it cannot be made without looking at all the facts. However the following interpretation by a court suggests the court does not demand a completely rational reaction:

A person under attack is not expected to stop to weigh or measure his or her reactions

perfectly or precisely. o Case source: R. v. Baxter (1975), 33 C.R.N.S. 22

Note: The legal defense of self-defense is not available unless these conditions are met. An accused person who is successful in arguing self-defense will be acquitted of the charge. Another defense, always open to an accused person, is that the elements of the offence have not been proven. If there

is a reasonable doubt about the legal issues in dispute, the accused person should be acquitt ed.

*****The actual wording of the law has been simplified in this handout.*****