Consent to Physical Contact

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2016. (Rev. # 95295)

General Principles

See also: Common Assault (Offence)

Assaultive offences require an absence of consent before they are criminal. In some offences the absence of consent is presumed.

The absence of consent is determined on a subjective standard at the time the physical contact occurs. It is a question of fact determined by the trier-of-fact based on the entirety of the circumstances and the credibility of the alleged victim.[1]

When One Cannot Consent to Harm

The ability to consent to an assault ends once the culprit intends and causes "serious bodily harm."[2] Once there is requisite intent and the consequence, s. 265(3) does not apply.[3] Under the Jobidon principle, consent is said to be "nullified."[4]

Serious Bodily Harm

The requirement for "serious bodily harm" is distinct from "bodily harm". Serious bodily harm means any "hurt or injury, whether physical or psychological, that interferes in a substantial way with the physical or psychological health or well-being of the complainant."[5]

Types of Offences

The defence of consent is potentially available for a charge of aggravated assault so long as there is evidence that the accused did not intentionally cause serious bodily harm.[6] It also remains available in a case of sexual assault causing bodily harm.[7]

Nullifying Consent

Consent to a fight cannot be nullified unless there is intent to cause serious bodily harm and serious bodily harm is caused.[8]

Deemed Absence of Consent

Under s. 265(3), all forms of assault, including sexual assault under s. 271, 272, and 273[9] cannot be consented to when the following exists:

s. 265
[omitted (1) and (2)]

Consent

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.

[omitted (4)]
R.S., c. C-34, s. 244; 1974-75-76, c. 93, s. 21; 1980-81-82-83, c. 125, s. 19.

– CCC (CanLII), (DOJ)

Note up: 265(3)

Section 265(3)(d) requires that there be a “coercive use of authority to overcome resistance to a consent”[10]

Cannot Consent to Infliction of Death

In a more extreme situations, it is not possible to consent to death:

Consent to death

14. No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given.
R.S., c. C-34, s. 14.

– CCC (CanLII), (DOJ)

Note up: 14

"serious bodily harm"

see Definition of Bodily Harm

  1. ↑ R v Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330, per Major J
  2. ↑ R v Jobidon, 1991 CanLII 77 (SCC), [1991] 2 SCR 714, 66 CCC (3d) 454(V), per Gonthier J
    R v McDonald, 2012 ONCA 379 (CanLII), 284 CCC (3d) 470, per Himel J, at para 26
    Attorney General’s Reference (No. 6 of 1980) [1981] 2 All E.R. 1057 (CA) (UK)
  3. ↑ Jobidon, supra
  4. ↑ Jobidon, supra
    R v Paice, 2005 SCC 22 (CanLII), [2005] 1 SCR 339, per Charron J
  5. ↑ R v McCraw, 1991 CanLII 29 (SCC), [1991] 3 SCR 72, per Cory J
    R v Azevedo, 2012 ONSC 6052 (CanLII), per Ray J, at para 9 ("...in accordance with the Jobidon decision, consent cannot be nullified unless there is both intent to cause serious bodily harm and serious bodily harm is caused. The Supreme Court [in Paice] re-affirmed and refined the Jobidon decision and held that serious harm must be both intended and caused for consent to be vitiated.")
  6. ↑ R v McDonald, 2012 ONCA 379 (CanLII), 284 CCC (3d) 470, per Himel J, at para 21
  7. ↑ R v Quashie, 2005 CanLII 23208 (ON CA), 198 CCC (3d) 337, per Gillese JA
  8. ↑ McDonald, ibid., per Himel J, at para 26
    R v Paice, 2005 SCC 22 (CanLII), [2005] 1 SCR 339, per Charron J, at para 18 ("... Jobidon requires serious harm both intended and caused for consent to be vitiated...")
  9. ↑ this is by function of s. 273.1
  10. ↑ R v Lutoslawski, 2010 ONCA 207 (CanLII), 258 CCC (3d) 1, per Doherty JA

Implied Consent

The doctrine of implied consent is based on the public policy interest to not over-criminalize certain actions. It must be "strictly limited to conduct which is consistent with the purpose and rationale underlying the policy basis."[1]

Any touching protected by implied consent must consist of conduct that "our customary norms of social interaction deem to be consensual." [2] This is determined on an objective basis.[3]

Implied consent is not applicable to sexual assault.[4]

  1. ↑ R v AE, 2000 CanLII 16823 (ON CA), 146 CCC (3d) 449, per Weiler JA, at para 33
  2. ↑ R v Bennett, 2006 CanLII 31012 (NL PC), per Gorman J, at paras 41 to 45
    R v Cey, 1989 CanLII 283 (SK CA), 48 CCC (3d) 480, per Gerwing JA, at page 490
  3. ↑ Bennett
    Cey
  4. ↑ R v Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330, per Major J
    See Consent in Sexual Offences

Consensual Fight

A consensual fight is not necessarily an assault as the parties are consenting to the physical contact. [1] Consent can be negated or vitiated where the force causes bodily harm and was intended to be caused.[2] Thus, where serious bodily harm was intended and caused, there can be no consent.[3]

In the context of a fist fight, the necessary mens rea requires that the force be applied recklessly and the risk of bodily harm was objectively foreseeable.[4]

Honest but mistaken belief in consent can be used as a defence.[5]

With Weapons

No one can consent to a fight with weapons that result serious bodily harm.[6]

  1. ↑ R v Jobidon, 1991 CanLII 77 (SCC), [1991] 2 SCR 714, 66 CCC (3d) 454, per Gonthier J
  2. ↑ R v Paice, 2005 SCC 22 (CanLII), [2005] 1 SCR 339, per Charron J
    R v WG, 1994 CanLII 3442 (ON CA), 90 CCC (3d) 139, per Doherty JA ("The combination of an intention to do serious harm, the use of force obviously capable of producing that result, and the actual infliction of bodily harm bring this fact situation squarely within the policy considerations enunciated in Jobidon. The victim’s consent cannot negate culpability even where the accused is a young person.")
    Jobidon, supra, at pp. 22, 23
    See R v Crosby, 2005 PESCAD 1 (CanLII), CR (6th) 39, 192 CCC (3d) 23, per Mitchell JA during a fist fight, consent is not vitiated unless accused intended to inflict bodily harm
  3. ↑ R v Sullivan, 2011 NLCA 6 (CanLII), 270 CCC (3d) 93, per Welsh JA, at para 13 ("The test to be applied when assessing whether consent has been vitiated is whether serious bodily harm was caused and was intended.")
  4. ↑ Sullivan, ibid., at para 24 ("In the context of a consensual fist fight, in light of Paice, the necessary mens rea will be proven if it is established beyond a reasonable doubt that force was applied recklessly and the risk of serious bodily harm was objectively foreseeable.")
  5. ↑ WG, supra
    R v TNB, 2009 BCPC 117 (CanLII), 65 CR (6th) 170, per Frame J, at para 7
  6. ↑ Jobidon, supra at p. 765-768 (SCR)

Consent in Sports

While normally a person cannot consent to an assault that intends to cause bodily harm, there is an exception to this for sports where the conduct is part of the norms of the particular sport.[1] Thus sports players may consent to some bodily harm necessarily incidental to the sport. However, conduct that is deliberately for the purpose of inflicting injury will not be protected.[2]

The limits of implied consent are determined by an "amalgam of written rules, unwritten code of conduct and guidelines set by a referee in a particular game."[3] Unwritten code can include "legitimate strategy of intimidation" that involves violence.[4]

Consent will expand to include force outside of the rules but within the range of acceptable standards in which the game is played.[5]

Given the permissiveness of certain sports and the willingness of players to undertake the risks associated with the game, it is difficult to envision an ability to convict on common assault.[6]

Where the use of force is unreasonable and falls outside the parameters of the sport, there can be no consent.[7]

Factors

Where the sport is recreational or has no-contact rules, the tolerance for use of force will be lower.[8]

The court should consider whether the conduct is "closely related to the play."[9]

  1. ↑ R v Jobidon, 1991 CanLII 77 (SCC), [1991] 2 SCR 714, 66 CCC (3d) 454, per Gonthier J
  2. ↑ R v Leclerc, 1991 CanLII 7389 (ON CA), 67 CCC (3d) 563, per Lacourciere JA
  3. ↑ R v TNB, 2009 BCPC 117 (CanLII), 65 CR (6th) 170, per Frame J, at para 17
  4. ↑ TNB
  5. ↑ R v CC, [2009] OJ No 2216 (consent "will be implied for contact and force that comes within the rules of the game. Consent will also be implied with respect to force that is outside the rules but within the scope of the accepted standards by which the game is played") R v Cey, 1989 CanLII 283 (SK CA), 48 CCC (3d) 480, per Gerwing JA
  6. ↑ R v Green, 1970 CanLII 973 (ON CJ), 16 DLR (3d) 137, per Fitzpatrick J
    see also R v Maki, 1970 CanLII 569 (ON CJ), 1 CCC (2d) 333, per Carter J - one of first cases in Canada relating to professional hockey
  7. ↑ e.g. R v Krzysztofik (G.), 1992 CanLII 13029 (MB QB), 79 Man R (2d) 234, per Darichuk J - conviction for aggravated assault in hockey game
  8. ↑ Krzysztofik (G.), ibid. at paras 11 to 13
  9. ↑ R v Leyte, 1973 CanLII 1449 (ON CJ), 13 CCC (2d) 458, per Perkins J Krzysztofik, supra at para 10

Consent in Domestic Assaults

See also: Common Assault (Offence)

There is a degree of implied consent in certain social interactions such as domestic partnerships.[1] Courts have been highly resistant to recognizing consent to an assault between partners.[2] Any force intended to cause bodily harm will automatically negate any consent.[3]

  1. ↑ R v Menkarios, 2010 ONSC 5478 (CanLII), per R Smith J, at para 38
  2. ↑ R v Downey, 2002 NSSC 226 (CanLII), [2002] NSJ No 442 (NSSC), per Leblanc J
    R v Lewis, [2004] OJ No 3059 (Ont. C.J.) (*no CanLII links)
    R v Swaine, [1999] OJ No 3457 (Ont. C.J.) (*no CanLII links)
    R v Tierney, [1994] PEIJ No 118 (PEISCTD) (*no CanLII links)
    R v Allum, [1996] AJ No 360 (Alta.P.C.) (*no CanLII links)
    R v Stewart, [1996] OJ No 2704 (Ont.C.J.) (*no CanLII links)
    R v Abraham, 1974 CanLII 1592 (QC CA), 30 CCC (2d) 332 (Que.C.A.), per Crete JA
    R v Bruce, 1995 CanLII 2442 (BC CA), [1995] BCJ No 212 (BCCA), per McEachern CJ
    R v CMC, [1996] BCJ No 2545 (BCPC) (*no CanLII links)
  3. ↑ R v Shand, 1998 CanLII 4686 (NS CA), 166 NSR (2d) 74 (NSCA), per Pugsley JA

General Consent for Sexual Offences

See Also

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