R. v. Welch (J.), (1995) 86 O.A.C. 200 (CA)

• Judge: Griffiths, Galligan and Labrosse, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 02, 1995
• Jurisdiction: Ontario
• Citations: (1995), 86 O.A.C. 200 (CA)

R. v. Welch (J.) (1995), 86 O.A.C. 200 (CA)

MLB headnote and full text

Her Majesty The Queen (respondent) v. Jeffrey Welch (appellant)

(C18328)

Indexed As: R. v. Welch (J.)

Ontario Court of Appeal

Griffiths, Galligan and Labrosse, JJ.A.

October 2, 1995.

Summary:

The accused was convicted by a jury of sexual assault causing bodily harm (Criminal Code, s. 272) and unlawful confinement. The accused appealed, arguing that the trial judge erred in ruling and instructing the jury that consent was not a defence to the offence of sexual assault causing bodily harm as defined by s. 267(2) of the Criminal Code.

The Ontario Court of Appeal dismissed the appeal.

Criminal Law - Topic 666

Sexual offences - Consent - [See all Criminal Law - Topics 670.3 ].

Criminal Law - Topic 670.3

Sexual offences - Sexual assault causing bodily harm - A female complainant alleged that while she was at the accused's residence, he, without her consent tied her to his bed, beat her, sexually assaulted her and inserted an object into her rectum - She sustained bruising - The accused was charged with sexual assault causing bodily harm (Criminal Code, s. 272) - The accused admitted much of the conduct, but testified that the complainant consented - The trial judge instructed the jury that consent was not a defence to sexual assault causing bodily harm as defined by Crimi­nal Code, s. 267(2) - The accused was convicted - He appealed - The Ontario Court of Appeal dismissed the appeal holding that the trial judge correctly charged the jury.

Criminal Law - Topic 670.3

Sexual offences - Sexual assault causing bodily harm - The Ontario Court of Appeal held that consent was not a defence to the offence of sexual assault causing bodily harm (Criminal Code, ss. 267(2) and 272) - The court stated that it arrived at this result with some hesitation because of recommendations by the English and Canadian Law Reform Commissions that legislation be enacted recognizing consent as a defence to an assault except where serious injuries result, with long-term consequences - Further, the American Model Penal Code proposes consent as a defence where the harm is not serious and several legal scholars have suggested that the common law should be moulded along the same lines - See paragraph 86.

Criminal Law - Topic 670.3

Sexual offences - Sexual assault causing bodily harm - The Ontario Court of Appeal held that consent was not a defence to sexual assault causing bodily harm (Criminal Code, ss. 267(2) and 272) - The court stated that the message delivered by the Supreme Court in R. v. Jobidon (1991) is that "... the victim cannot consent to the infliction of bodily harm upon himself or herself, as defined by s. 267(2) of the Code, unless the accused is acting in the course of a generally approved social purpose when inflicting the harm. Specifi­cally, the majority in Jobidon recognized that consent may be a defence to certain activities such as rough sporting activities, medical treatment, surgical interven­tions, and 'daredevil activities' performed by stunt­men, 'in the creation of a socially valuable cultural product'. Acts of sexual violence, however, were conspicu­ously not included among these excep­tions" - See paragraph 87.

Criminal Law - Topic 670.3

Sexual offences - Sexual assault causing bodily harm - The Ontario Court of Ap­peal held that consent was not a defence to sexual assault causing bodily harm (Crim­inal Code, ss. 267(2) and 272) - The court stated that "the sadistic sexual activ­ity here involved bondage (the tying of the victim's hands and feet) and the intentional inflic­tion of injury to the body and rectum of the complainant. The consent of the com­plainant, assuming it was given, can­not detract from the inherently degrading and dehumanizing nature of the conduct. Al­though the law must recognize individ­ual freedom and autonomy, when the activity in question involves pursuing sexual grati­fication by deliberately inflict­ing pain upon another that gives rise to bodily harm, then the personal interest of the individuals involved must yield to the more compel­ling societal interests which are challenged by such behaviour" - See paragraph 88.

Criminal Law - Topic 673

Sexual offences - Jury charge - [See first Criminal Law - Topic 670.3 ].

Criminal Law - Topic 1346

Causing bodily harm - Defences - Con­sent - [See first Criminal Law - Topic 670.3 ].

Criminal Law - Topic 5868

Sentence - Unlawful confinement - [See Criminal Law - Topic 5933 ].

Criminal Law - Topic 5933

Sentence - Sexual assault causing bodily harm - A female complainant alleged that while she was at the accused's residence, he, without her consent, tied her arms and legs to his bed, beat her, sexually assaulted her and inserted an object into her rectum - She sustained bruising - The accused was convicted of sexual assault causing bodily harm and unlawful con­finement - Minor criminal record - Good character references and favourable presentence report - He was sentenced to 34 months for sexual assault causing bod­ily harm and six months con­current for unlawful con­finement - The Ontario Court of Appeal affirmed the sentence - See paragraph 93.

Cases Noticed:

R. v. DeSousa, [1992] 2 S.C.R. 944; 142 N.R. 1; 56 O.A.C. 109; 76 C.C.C.(3d) 124; 15 C.R.(4th) 66, refd to. [para. 19].

R. v. Park (D.G.) (1995), 183 N.R. 81; 169 A.R. 241; 97 W.A.C. 241; 99 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 23].

R. v. Jobidon, [1991] 2 S.C.R. 714; 128 N.R. 321; 49 O.A.C. 83; 7 C.R.(4th) 233; 66 C.C.C.(3d) 454, folld. [para. 25 et seq.].

R. v. Carrière (1987), 76 A.R. 151; 35 C.C.C.(3d) 276 (C.A.), refd to. [para. 31].

R. v. Donovan, [1934] 2 K.B. 498 (C.A.), consd. [para. 44 et seq.].

R. v. Boyea (1992), 156 J.P. 505 (C.A.), consd. [para. 52].

Attorney General's Reference (No. 6 of 1980), [1981] Q.B. 715 (C.A.), consd. [para. 53].

R. v. Brown et al., [1993] 2 All E.R. 75; 151 N.R. 321 (H.L.), consd. [para. 55].

Commonwealth v. Appleby (1980), 402 N.E.2d 1051 (Mass. S.J.C.), refd to. [para. 67].

People v. Alfaro (1976), 132 Cal. Rptr. 356 (Cal. C.A.), refd to. [para. 67].

Commonwealth v. Farrell (1948), 78 N.E.2d 697 (Mass. S.J.C.), refd to. [para. 67].

Ogletree v. State (1994), 440 S.E.2d 732 (Ga. App.), refd to. [para. 67].

State v. Brown (1976), 364 A.2d 27 (N.J.S.C.), consd. [para. 67 et seq.].

State v. Collier (1985), 372 N.W.2d 303 (Iowa App.), consd. [para. 67 et seq.].

R. v. S.M. (1995), 80 O.A.C. 35; 22 O.R.(3d) 605 (C.A.), refd to. [para. 83].

R. v. T.B.B. (1994), 124 Nfld. & P.E.I.R. 328; 384 A.P.R. 328; 93 C.C.C.(3d) 191 (P.E.I.C.A.), refd to. [para. 83].

R. v. Spencer (1991), 10 C.R.(4th) 26 (Man. Prov. Ct.), refd to. [para. 84].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 265(1)(a), sect. 265(2), sect. 265(3) [para. 27]; sect. 267(2) [para. 1 et seq.]; sect. 272(c) [para. 26]; sect. 273.1 [para. 28]; sect. 686(1)(a)(iii) [para. 35].

United States, American Model Penal Code (1985), generally [paras. 72, 86].

Authors and Works Noticed:

Canada, Law Reform Commission, Work­ing Paper No. 38 (Assault) (1984), pp. 24 [para. 77]; 29 [para. 49]; 50, 51 [para. 79].

England, Law Reform Commission, Con­sent and Offences Against the Person (1994), Consultation Paper No. 134, paras. 11.21 [para. 74]; 14.2 [para. 73]; 18.3 [para. 76].

Hughes, G., Consent in Sexual Offences (1962), 25 M.L.R. 672, p. 685 [para. 86].

Leigh, L.H., Sado-masochism, Consent and the Reform of Criminal Law (1976), 39 M.L.R. 130, p. 139 [para. 86].

Stephen, Digest of Criminal Law (4th Ed. 1887), pp. 148, 149 [para. 86].

Stuart, Canadian Criminal Law (1982), pp. 459, 460, 461 [para. 86].

Wharton's Criminal Law (15th Ed. 1993), pp. 304, 305 [para. 71].

Williams, Glanville, Consent and Public Policy, [1962] Crim. L.R. 154, p. 159 [para. 86].

Wilson, William, Is Hurting People Wrong?, The Journal of Social Welfare & Family Law (1992), pp. 388, 395 [para. 89].

Counsel:

Irwin A. Koziebrocki, for the appellant;

Jamie C. Klukach, for the respondent.

This appeal was heard on July 27 and 28, 1995, before Griffiths, Galligan and La­brosse, JJ.A., of the Ontario Court of Appeal. The decision of the court was delivered by Griffiths, J.A., and released on October 2, 1995.