Application of the ‘consensual fight’ defence in the context of domestic assaults

Law360 Canada (January 9, 2026, 8:47 AM EST) --

Oksana Romanov

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 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.

In Ram, the accused openly testified about assaulting his spouse and, through his lawyer, argued the defence of consent because his spouse initiated the physical altercation during their quarrel. In brief, Tina Ram repeatedly elbowed her husband in the groin, and Samson Ram immediately became physical in response. According to his own testimony, Mr. Ram was “angry enough to want to repeatedly body slam his wife on the floor in front of their two young children,” para. 13. The court considered the doctrine of implied consent and found that it was unlikely that Ms. Ram consented to such an altercation by operation of the rule in Jobidon. As a result, the court denounced interspousal violence and the “consensual fight” defence with it for public policy reasons. As Justice Paul Burstein wrote in Ram, at para. 27: “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.”

Several cases from other provinces informed a narrower interpretation of the doctrine of implied consent in the context of interspousal violence, especially when such conduct resulted in “serious or non-trivial injuries”: R. v. Bruce, [1995] B.C.J. No. 212, at para. 8; per Justice Allan McEachern, C.J.B.C., and at para. 16, per Justice Douglas Lambert; R. v. Shand, [1997] N.S.J. No. 524, at paras. 16-17. See also the pronouncements of the Alberta Court of Appeal in R. v. Barton, 2024 ABCA 34, at para. 215, leave to appeal refused Docket No.: 41154: “Notably, courts have applied an objective threshold to vitiation of apparent consent in the context of domestic violence, another area where prevention of gendered harm is a pressing societal concern” (citations omitted).

Compare R. v. Gardiner, 2018 ABCA 298, where the Alberta Court of Appeal said, “[A] valid consent to a fight does not require a consent to each and every blow,” para. 3. However, relevant policy considerations may limit the availability of this defence on a case-by-case basis: Jobidon, at paras. 124-125; and Gardiner, at para. 30. The court in Gardiner reviewed the Jobidon rule and concluded that Bradan Lou Gardiner did not consent to being choked by the appellant. Further, the Alberta Court of Appeal went on to say, at para. 31:


In R. v. Grizzle, 2024 ONCJ 300, the accused was charged with six offences, including three counts of assault in the context of intimate partner violence. According to Conrad Grizzle’s testimony, he did “not dispute that he took [Shaylee] Colley’s phone without her consent and technically assaulted her, as captured on the video surveillance footage,” para. 56. However, the court found Grizzle not guilty of assault when he “took the phone forcibly from her hands and that it ‘felt like a struggle’” because the trial judge was “unable to conclude with certainty that he pried the phone from her hands with sufficient force that this was a criminal assault,” para. 48. Nevertheless, the “consensual fight” and de minimis non curat lex defences did not excuse Grizzle’s final assaultive conduct. Namely, “this was far from a minor assault and was a completely unwarranted application of force,” para. 71. As Justice Brock Jones wrote, at paras. 69-70:


In R. v. Avila, 2025 BCCA 5, the accused was charged with two counts of sexual assault against the complainant. They had a consensual play fight and both sustained bruising. The complainant’s mother observed some bruising on her daughter’s arm and reported the incident to the police. Although Franklin Avila was not charged with a domestic assault because the complainant reported consensual “play fighting,” she also disclosed other incidents, which led to a criminal investigation and sexual assault charges having been laid against him: at para. 10.

As case law demonstrates, given public policy reasons and societal concerns with domestic violence, a “consensual fight” defence is unlikely to excuse serious or non-trivial assaultive conduct. That said, the defence of de minimis non curat lex may be available on a case-by-case basis as demonstrated in R. v. R.M. (a wedding ring removal with trivial force case), and in part in regard to one count of assault in R. v. Grizzle (insufficient application of force to constitute a criminal assault).

Oksana Romanov, BA (Hons), MA (Comm), JD with Distinction, practises criminal law in Toronto and the GTA. She is a sole practitioner at Law Office of Oksana Romanov.

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