Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


R. v. Ram, 2022 ONCJ 347, July 28, 2022, at paragraphs 27 and 28:

In the context of domestic assaults, the common law’s enlightened understanding of why consent to intrusive touching must be both contemporaneous and subjective makes it difficult to accept that a spouse’s prior application of force should still be considered as legal proxy for their actual consent to subsequent retaliatory spousal assaults.  Abandonment of the common law’s consensual fight doctrine in the domestic violence context would better accord with the modern day approach to consent and would not result in an expansion of criminal liability.  The statutory definition of assault would remain unaltered.  Unless the Crown could prove beyond a reasonable doubt that a victimized spouse was not subjectively consenting to a particular application of force, an accused spouse would be acquitted of that alleged assault.  Even without a defence of “implied consent” based on the apparent consensual nature of a domestic “fight”, it would still be open to an accused spouse to argue that they honestly, but mistakenly, believed there to have been consent to any assault occurring during such a fight.  Were it up to me, I would be satisfied that a complete elimination of the Jobidon “implied consent” doctrine in the context of domestic fights is both necessary and appropriate.      

While I seriously question whether, for policy reasons, the common law should continue to afford any legal effect to the concept of a consensual fight in the domestic violence context, I am satisfied that the appellate jurisprudence in Ontario and other provinces continues to afford some anachronistic support for the doctrine in that context.  In my view, if the common law consensual fight doctrine continues to have any legitimate application in the domestic violence context, it does so only in a narrow set of circumstances, narrower than those which can legally excuse assaults occurring during the type of fist fights considered in Jobidon and Paice.  Having regard to the analytical approach outlined in Jobidon, I have considered the policy implications of applying the consensual fight doctrine in the context of a domestic violence case such as this.  I agree with the B.C. Court of Appeal in R. v. Bruce that the policy concerns specific to domestic violence cases support narrower limits to Jobidon’s consensual fight doctrine.  In the context of a consensual domestic fight, any intentional application of force “capable of causing an injury that is more than trivial” will not be sheltered from criminal liability.  If, however, the B.C. Court of Appeal’s approach in Bruce is determined to be an undue narrowing of the Jobidon/Paice doctrine, then, at a minimum, the policy concerns specific to a case like this require that the consensual fight doctrine be narrowed to exclude domestic assaults which were intended to cause bodily harm, even if no bodily harm was actually caused. 

                                                          [Judge Burstein’s emphasis]