Does the common law allow for the defence of “consensual fight” to excuse domestic assaults? This question has concerned defence counsel contemplating potential defences to their clients’ assault charges, Crown counsel trying to prove the accused guilty of the alleged unlawful conduct, as well as trial and appellate judges considering specific policy reasons for vitiating consent in an intimate partner violence context.
The “consensual fight” defence is based on the common law doctrine of implied consent primarily developed in the context of bar fights, where a victim’s consent to fight was sufficient to excuse some assaultive conduct, including the one causing bodily harm: R. v. Jobidon, [1991] S.C.J. No. 65 (the accused exceeded the boundaries of consent by continuing to punch the victim after he became unconscious), cited in R. v. Ram, 2022 ONCJ 347, at paras. 3 and 16-28.