(Read applicable parts of indictment or count.)
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.
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][3] , you must find (NOA) guilty of assault.
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.
(Review relevant evidence and relate to issue.)
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.
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.
(Review relevant evidence and relate to issue.)
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.
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[4] , to let the physical contact occur.
Where there is evidence that the scope of the consent may have been exceeded, give the following instruction:[5]
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.
(Review relevant evidence and relate to issue.)
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.
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 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.
(Review relevant evidence and relate to issue.)
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)[6] 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)[7] to the physical contact in question, you must find (NOA) guilty of assault.
[1] 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).
[2] 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. 3.
[3] 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.
[4] 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 273.1.
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 1717.
[5] 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, 766-67.
[6] Insert the bracketed words if the jury has been instructed on mistaken belief in consent.
[7] Insert the bracketed words if the jury has been instructed on mistaken belief in consent.