Consent to Physical Contact

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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]

Consent to Harm

The ability to consent to some form of assault ends once the culprit intends and causes bodily harm.^[2]

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.^[3]

Nullifying Consent

Consent to a fight cannot be nullified unless there is intent to cause serious bodily harm and serious bodily harm is caused.^[4]

Deemed Absence of Consent

Under s. 265(3), all forms of assault, including sexual assault under s. 271, 272, and 273^[5] 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.
believe on reasonable grounds that force is being used against them or another person 34

[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

Note up: 265 (3)

Section 265(3)(d) requires that there be a “coercive use of authority to overcome resistance to a consent”^[6]

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

Note up: 14

↑ R v Ewanchuk, 1999 CanLII 711 (CanLII), per Major J
↑ Jobidon
Attorney General’s Reference (No. 6 of 1980) , [1981] 2 All E.R. 1057 (C.A.) (UK)
↑ R v McDonald, 2012 ONCA 379 (CanLII), per Himel J, at para 21
↑ R v McDonald, ONCA 379 (CanLII) {{{3}}}, 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...")
↑ this is by function of s. 273.1
↑ R v Lutoslawski, 2010 ONCA 207 (CanLII), 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]

↑ R v AE, 2000 CanLII 16823 (ON CA), per Weiler JA, at para 33
↑ 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 (Sask. C.A.), per Gerwing JA, at page 490
↑ Bennett
Cey
↑ 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 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]

↑ R v Jobidon, 1991 CanLII 77 (CanLII), per Gonthier J
↑ R v Paice, 2005 SCC 22 (CanLII), per Charron J
R v WG, 1994 CanLII 3442 (ONCA), , 90 CCC (3d) 139 (Ont.C.A.), per Doherty JA
Jobidon, supra, at pp. 22, 23
See R v Crosby, 2005 PESCAD 1 (CanLII), , (2005), 27 CR (6th) 39, 192 CCC (3d) 23 (PEI Ct. of App.), per Mitchell JA during a fist fight, consent is not vitiated unless accused intended to inflict bodily harm
↑ R v Sullivan, 2011 NLCA 6 (CanLII), 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.")
↑ 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.")

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]

↑ R v Jobidon, 1991 CanLII 77 (CanLII), per Gonthier J
↑ R v Leclerc, 1991 CanLII 7389 (ON CA), , 67 CCC (3d) 563, per Lacourciere JA
↑ R v TNB, 2009 BCPC 117 (CanLII), per Frame J, at para 17
↑ TNB

Consent in Domestic Assaults