ONTARIO COURT OF JUSTICE
DATE: July 28, 2022 COURT FILE No.: 21-21704
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
SAMSON RAM
Before: Justice P.K. Burstein
Heard: June 16 and 17, 2022 Reasons for Judgment released on: July 28, 2022
Counsel: M. Newell, for the Crown K. Manitius, for the Defendant
BURSTEIN J.:
Introduction
[1] More than 30 years ago, when explaining why sterner sentences were necessary to deter domestic assault, the Ontario Court of Appeal in R. v. Inwood, [1989] O.J. No. 428, felt compelled to observe that “spouses are entitled to protection from violence”. Only a year later, in R. v. Lavallee, [1990] 1 S.C.R. 852, the Supreme Court of Canada recognized the need for a “battered woman” defence due to our society’s tragic history of tolerating domestic violence against women. Decades later, interspousal violence remains a pressing social concern and, yet, criminal courts continue to hear arguments in domestic assault cases seeking to excuse an assaultive spouse from criminal liability based on claims that the victimized spouse initiated a physical altercation which led to the assaultive conduct.
[2] In this case, Mr. Samson Ram admits to assaulting his spouse, Ms Tina Ram. He does not say that Ms Ram actually expressed consent to being assaulted. Rather, Mr. Ram claims that, because Ms Ram was the first to initiate physical contact, there was implied consent to the ensuing “fight” and to the assault which he committed during that fight. Relying on the common law doctrine relating to consensual fights, Mr. Ram submits that, in the absence of proof that Ms Ram suffered bodily harm, the Crown has failed to disprove the validity of her implied consent and, thus, Mr. Ram must be acquitted of the domestic assault.
[3] The issues in this case revolve around the extent to which the common law allows for the concept of a “consensual fight” to excuse assaults in the context of domestic violence. Given the specific policy concerns involved, does the common law concept of a “consensual fight”, developed in the context of bar brawls and fist fights, apply equally in the context of domestic violence?
Summary and analysis of the evidence
[4] Mr. Ram testified at his trial on the charge of assault. He explained that he had only applied force to Ms Ram after she had already initiated a physical altercation with him and that the force he applied to her was not significant enough to cause her bodily harm.
[5] Mr. Ram and Ms Ram both testified that on February 11, 2021, Mr. Ram had been at the family’s apartment while Ms Ram was at work. He had been unemployed for a few months and was staying home to care for their two young daughters while Ms Ram was going to work. Mr. Ram and Ms Ram both acknowledged that the financial struggles resulting from Mr. Ram’s recent unemployment had created real tension in their relationship.
[6] Ms Ram returned to the apartment at about 4 p.m. An hour or so later, she and Mr. Ram began to argue about dinner. Mr. Ram had become upset that Ms Ram had not yet started preparing the family’s meal. They both began yelling at each other. Each claimed that the other was using profanity and making insulting remarks. When Ms Ram eventually presented Mr. Ram with his dinner, he threw the whole plate of food in the garbage. Cst. Nat, one of the officers who later responded to a call about the incident, confirmed that there was a plate with food in the garbage.
[7] According to Mr. Ram, he threw his food in the garbage in order to upset Ms Ram. He was already angry. After throwing his plate in the garbage, he walked over to where Ms Ram was sitting and “confronted her”. Mr. Ram testified that Ms Ram then elbowed him a few times in the groin area. He “responded” by head butting the top of her head. Ms Ram started “wailing” and “kicking” at him. Mr. Ram then grabbed her leg and arm and pulled her off the reclining chair upon which she was seated. He testified that she was swinging her arms and making contact with his legs, stomach and groin. In cross-examination, he admitted to grabbing one of her legs and one of her arms, picking her up and then slamming her back down on the floor. He did this a few times. At one point, according to him, Ms Ram tried to pull his pants down in an attempt to hit him in the groin. Mr. Ram denied that Ms Ram’s attempts to grab his pants seemed like an effort by her to gain leverage to get up from the floor. Nevertheless, Mr. Ram acknowledged that Ms Ram only got up off the floor because he let her go. By the end of the altercation, Mr Ram’s underwear was torn, and he had scratches on his neck. Cst. Nat confirmed seeing a scratch on Mr. Ram’s neck.
[8] In her testimony at trial, Ms Ram acknowledged getting into an argument with Mr. Ram about dinner and that it escalated when he threw his plate in the garbage. She agreed that there had been some initial “physical contact” as she was sitting on the reclining chair, but denied having elbowed him in the groin. According to Ms Ram, the physical contact made Mr. Ram even more angry. She testified that he grabbed her by the neck as he stood over her and then pulled her to the floor. Once Ms Ram was on the floor, Mr. Ram grabbed her right hand and right leg, picked her up and then slammed her on the floor. He repeated that two or three times. As he was doing that, Ms Ram was grabbing at the waist of his jeans to try and get up off the floor. Ms Ram testified that the following day she noticed a bump to her head. However, when asked by the police shortly after the incident, Ms Ram denied suffering any injuries. Cst. Nat did not observe any injuries to Ms Ram.
[9] In the context of this case, my decision about whether the Crown has proven Mr. Ram guilty of assault does not translate into a credibility contest between him and Ms Ram. The question is not whose evidence I prefer. Unless I were to reject his exculpatory testimony, the Crown would not have met its burden of proving Mr. Ram’s guilt beyond a reasonable doubt. Even if it could be said that I preferred the testimony of Ms Ram, unless I were to accept that her evidence proves the assault charge beyond a reasonable doubt, Mr. Ram must be acquitted regardless of whether I believe him or not.
[10] I should note that, in the circumstances of this case, even were I to accept Mr. Ram’s testimony, he may still be guilty of assaulting Ms Ram. As noted above, Mr. Ram candidly admitted to assaulting his spouse on February 11, 2021. Mr. Ram claimed that, because those assaults occurred within the context of a “fight” that Ms Ram initiated, there ought to be reasonable doubt whether she implicitly consented to his subsequent assaultive conduct. However, if the doctrine of implied consent does not apply to domestic assaults, or if Mr. Ram’s actions exceeded the scope of any such implied consent, then Mr. Ram’s testimonial admission could itself support a finding of guilt.
[11] I believe that the description of events provided by Ms Ram in her testimony is probably true. However, there were several inconsistencies between her testimony-in-chief and what she had said both to the police and in cross-examination. Moreover, Ms Ram’s admission in cross-examination that she had deliberately exaggerated certain details in her examination-in-chief to make Mr. Ram look bad was enough to leave me with a reasonable doubt about the material features of her testimony. To Ms Ram’s credit, the admission itself went some way to rehabilitate my concerns about her honesty. Nevertheless, the fact that Ms Ram was willing to deliberately distort the truth for the purpose of presenting Mr. Ram in a negative light leaves me with reasonable doubt about anything she said in court that was adverse to his interests. In the circumstances, I find that it would be unsafe to convict Mr. Ram on the basis of her evidence alone.
[12] I generally accept Mr. Ram’s evidence about what happened on February 11, 2021. When testifying in both chief and cross-examination, Mr. Ram showed a willingness to readily admit things which would obviously have painted himself in a negative light, especially in a trial involving a charge of assaulting his spouse. While there were some inconsistencies between what he said in-chief and then later in cross-examination, I found those discrepancies to be inconsequential to his credibility. I am satisfied that those inconsistencies reflected an honest uncertainty about some of the minor details of an event which happened 16 months earlier. I am, however, satisfied that the inconsistencies in Mr. Ram’s evidence are a reflection of its unreliability.
[13] My concerns about the unreliability of some of Mr. Ram’s testimony led me to reject his claims about what Ms Ram was doing, or trying to do, after he had pulled her off the recliner chair and on to the floor. By his own admission, Mr Ram was very angry by that point – angry enough to want to repeatedly body slam his wife on the floor in front of their two young children. I do not believe that he accurately remembers either what she was doing at that point, nor his perception of why she was doing it. Instead, I accept Ms Ram’s evidence on this point, and when considered in light of all the other evidence, I am satisfied beyond a reasonable doubt that after being pulled to the floor, Ms Ram was only scrambling to get away. While she undoubtedly made contact with him to break free of his grasp as he repeatedly slammed her on the floor, I reject Mr. Ram’s claim that her actions made it seem like she was trying to hit him in the groin or do anything else to prolong the “fight”. Indeed, as Mr. Ram testified, as soon as he let go of her, Ms Ram got up from the ground and went to another room.
[14] I am also satisfied beyond a reasonable doubt that Ms Ram never said anything on February 11, 2021 to connote that she was consenting to a fight, let alone to being repeatedly slammed on the floor. To be fair, Mr. Ram never claimed Ms Ram had said anything like that. In her testimony, Ms Ram said that she did not want to be in a physical altercation with Mr. Ram that day. However, Mr. Ram argues that by having repeatedly elbowed him in the groin, Ms Ram had initiated a physical fight and therefore, had implicitly consented to his application of force during the fight which followed.
To what extent does the common law recognize the doctrine of “implied consent” in the context of domestic “fights”?
[15] The absence of consent is an essential element of the criminal offence of “assault” which the Crown must prove beyond a reasonable doubt:
265(1) A person commits an assault when (a) without the consent of another person, he applies force intentionally to that other person directly or indirectly...
Although it expressly exempts the consensual application of force from the definition of “assault”, the Code is silent about the legal implications of a consensual fight.
[16] The criminal law implications of a “consensual fight” were first considered by the Supreme Court of Canada over 30 years ago in R. v. Jobidon, [1991] S.C.J. No. 65. The case involved two men involved in a “fist fight” outside a bar. The defendant had successfully argued at trial that the victim’s consent to engage in a fist fight implied that the victim had consented to the punches thrown by the defendant in the course of that fight. A five-member panel of the Ontario Court of Appeal overturned the acquittal and held that any consent implied by a consensual fight was much narrower in scope than what the trial judge had considered: R. v. Jobidon, [1988] O.J. No. 1856. In deciding that consent to engage in a fist fight did not excuse subsequent assaults where bodily harm was intended or caused, the Court explained that:
… this interpretation accords with sound policy. The so-called consents to fight are often more apparent than real and are obtained in an atmosphere where reason, good sense and even sobriety are absent. [Emphasis added.]
[17] On further appeal, a majority of the Supreme Court of Canada affirmed the decision of the Ontario Court of Appeal. The majority reviewed the growing body of appellate authority in Canada which seemed to have held that a victim’s consent to fight was sufficient to excuse any ensuing assault, even if that assault resulted in serious bodily harm to the victim. After noting that the English common law nullified “the defence of consent in fist fight cases” where bodily harm was caused or intended, the majority in Jobidon observed that the statutory definition of assault in our Criminal Code did not oust any common law limits on the element of consent.
[18] In support of the limitations imposed by the common law on the doctrine of consensual fights, the majority in Jobidon went on to “canvass [the] policy considerations” relevant to “fist fight” cases:
(1) “[T]he social uselessness of fist fights”. (2) These events are motivated by unchecked passion… [and] often result in serious injury to the participants.” (3) “Erasing longstanding limits on consent to assault would be a regressive step, one which would retard the advance of civilized norms of conduct.” (4) “[I]n some cases, common law limitations on consent might serve some degree of deterrence to these sorts of activities.” (5) “[I]t is most unseemly from a moral point of view that the law would countenance, much less provide a backhanded sanction to the sort of interaction displayed by the facts of this appeal.”
While ultimately acknowledging that the “law’s willingness to vitiate consent on policy grounds is significantly limited”, the majority in Jobidon held that “relevant policy considerations” should nevertheless influence the boundaries of the consensual fight doctrine and, thus, that “ [i]t may be that further limitations will be found to apply in other circumstances ”: see R. v. Jobidon, supra at paras. 124-125.
[19] Based on subsequent appellate decisions, the doctrine in Jobidon is now interpreted to mean that a victim’s consent to engage in a physical fight implies consent to any assaultive force used during the course of that fight, so long as no bodily harm is intentionally caused to the victim: see R. v. Paice, 2005 SCC 22, [2005] S.C.J. No. 21. As the Alberta Court of Appeal recently observed in R. v. Gardiner, [2018] A.J. No. 1095 (C.A.), “a valid consent to a fight does not require a consent to each and every blow”. Rather, “the consent extends to those blows that might reasonably be anticipated to occur in the course of the fight”: see R. v. Gardiner, supra at para. 3.
[20] Only a handful of provincial appellate courts have considered how the analysis of the implied consent doctrine in Jobidon applies in the context of domestic violence. Some, such as the Alberta Court of Appeal, have simply imported the common law’s approach to consensual bar fights to domestic violence cases: see R. v. Gardiner, supra [1]. Others, like the B.C. Court of Appeal in R. v. Bruce, [1995] B.C.J. No. 212, have expressly considered whether the “consensual fight” doctrine developed in Jobidon ought to apply equally in the context of domestic violence having regard to the policy concerns specific to that context. In deciding that differing policy concerns in the domestic violence context required a narrower approach to the “consensual fights” doctrine, McEachern C.J.B.C. in Bruce held (at para. 8):
The application of force by the appellant to the complainant constituted at least a common assault unless it was inflicted with the valid consent of the complainant. In this respect I refer to R. v. Jobidon (1991), 66 C.C.C. (3d) 454. That authority which deals generally with the question of consent to physical violence makes it clear that consent cannot be inferred in some circumstances where public policy assumes an interest in what goes on between individuals. Like Mr. Justice Wilkinson I would include cases of serious or non-trivial injuries incurred in the course of family violence within the classes of cases where public policy does not permit consent to be inferred even in circumstances such as those disclosed in the evidence in this case.
In expressing agreement with the decision of his colleague, Lambert J.A. in the same case explained why interspousal violence was inherently different and therefore demanded a much different approach to “consent fights” than was articulated in Jobidon (at para. 16):
The Jobidon case on its facts applied to the vitiation in law of apparent consent in fact where the force was intentionally applied in the course of a fist fight or brawl and the force was such as was intended to cause and did cause serious hurt or non-trivial bodily harm. Counsel for the appellant in this appeal argued the very same standard of public policy vitiation of consent as is derived from the facts of the Jobidon case should be applied in cases of family altercations. However, I do not think that the same standard that applies to brawls and fist fights between grown men should apply to domestic altercations between a man and a woman. In the public interest I think that the public policy discussed in Jobidon and which underlies the decision in that case must take a stricter view of the level of applied force which should vitiate apparent consent as a matter of law in domestic altercations than it does in brawls and fist fights. In my opinion, the intentional application of sufficient force as to be capable of causing an injury that is more than trivial should operate to vitiate apparent consent in a domestic altercation between a man and a woman. [Emphasis added.]
[21] The decision in Bruce was later adopted by the Nova Scotia Summary Conviction Appeal Court in R. v. Shand, [1997] N.S.J. No. 524. The Court in Shand found that “the need to deter family violence is so great, that the Jobidon principle should be extended so as to vitiate consent where domestic assaults have only the potential of creating non-trivial harm ” [emphasis added].
[22] Although there are no reported Ontario Court of Appeal decisions applying Jobidon to the context of domestic violence, there have been cases where the Court was asked to consider how the Jobidon doctrine should apply in a context other than bar fights. In R. v. A.E., [2000] O.J. No. 2984, the Ontario Court of Appeal was asked to define the common law limits of an infant’s implied consent to harm caused by a parent’s application of force during the child’s care. Applying the reasoning in Jobidon, the Court in A.E. held “that policy-based limits on consent are almost always the product of a balancing of individual autonomy and some larger societal interest” (at para. 28). Pointing to the vulnerable nature of infants, the Court in A.E. limited an infant’s “implied consent” (see para. 33) to a care-giver’s application of force “for the good of the child” as, otherwise, “the positive social value of deemed consent loses its rationale”. In the more recent cases of R. v. B.W., [2016] O.J. No. 538, the Ontario Court of Appeal rejected the suggestion that the broader scope of the consensual fight doctrine (requiring proof that the defendant intended to cause bodily harm) applied equally to cases involving force applied to infants during care. Citing its earlier decision in A.E., the Court in B.W. said (at para. 17):
Decisions like McDonald about adults engaged in consensual fights are fundamentally different than those involving children. As this court noted in R. v. A.E. (2000), 146 C.C.C. (3d) 449, at para. 28:
It was noted in Jobidon that policy-based limits on consent are almost always the product of a balancing of individual autonomy and some larger societal interest. In the Jobidon situation, public policy vitiates the voluntary decision of the victim to consent. In this case, there is no concern about balancing an infant's individual autonomy, or its freedom to choose to have force intentionally applied to itself. An infant is uniquely vulnerable to the quality of care and the decisions made on its behalf by its parents. The balancing exercise is therefore a different one.
[23] There is one reported Ontario appellate decision since Jobidon which has commented on the common law limitations to the consensual fight doctrine in the context of domestic violence. In R. v. Tschudi, [2012] O.J. No. 5578 (S.C.J.) [2], the accused had testified that he had shoved his wife out of the bedroom after she had woken him and sprayed hand lotion on him. Although the appeal was allowed on the basis that the trial judge had misapprehended the defendant’s evidence about whether he had put his hand on his wife’s throat during the altercation (see paras. 69-71), Mitrow J. declined to adopt the B.C. Court of Appeal decision in R. v. Bruce, supra, as being the correct test for when consent may be vitiated in domestic altercations:
The respondent relies on a 1995 British Columbia Court of Appeal decision in R. v. Bruce for the principle that a different standard applies to vitiate consent in domestic altercations. The test articulated in R. v. Bruce is that the intentional application of sufficient force as to be capable of causing an injury that is more than trivial should operate to vitiate apparent consent in a domestic altercation between a man and a woman.
R. v. Bruce was decided prior to the Supreme Court of Canada decision in R. v. Paice, and the Court of Appeal for Ontario decisions, referred to earlier in these reasons, as to when consent is vitiated. These authorities did not articulate a modified test to vitiate consent in a domestic altercation where an accused is charged with assault. The respondent did not provide any appellate authority adopting R. v. Bruce that would be binding on this court, and I find that the proper test to vitiate consent (if consent is found to exist) is as described above in R. v. Paice and the Court of Appeal for Ontario.
Apart from his comments being obiter dicta, the decision of Mitrow J. is entirely silent on any of the “policy considerations” which the Supreme Court said would be relevant to the scope of consent in contexts other than the fist fight cases (like Jobidon and Paice). Indeed, Mitrow J.’s decision in Tschudi seems to entirely ignore the Ontario Court of Appeal’s decision in A.E. recognizing the importance of examining such policy concerns when determining how the Jobidon/Paice implied consent doctrine applies in contexts other than fist fights: see R. v. A.E., supra.
[24] As with interfamily violence against children, the policy concerns raised by cases of interfamily violence against a spouse compel a narrowing of the limits to the implied consent doctrine articulated in Jobidon and Paice. The five policy concerns expressed in Jobidon (as set out above at paragraph 18) are far more pronounced in the context of domestic violence than in cases of bar brawls and fist fights. According to a recent Government of Canada fact sheet [3], the World Health Organization continues to identify domestic violence as a major global public health concern. It affects millions of people and can result in immediate and long-lasting health, social and economic consequences, especially to children who are often exposed to it. Significantly, in 1995, Parliament expressly reminded courts that assaults committed in the domestic context must be treated as inherently more serious than any other assault: see s. 718.2 (a)(ii) of the Code, enacted by S.C. 1995, c. 22, s. 6. Although domestic violence affects a wide array of people, women account for the vast majority of people who experience domestic violence, and men are the ones who most often perpetrate it. In other words, it is far less likely that a consensual fight in the domestic context will be a “fair fight” – an essential historical feature of the common law’s consensual fight doctrine [4]: see R. v. Jobidon, supra. The type of domestic violence that was at issue in Mr. Ram’s case is profoundly different than the bar brawls that were discussed in Jobidon. In light of the policy concerns specific to domestic violence, the common law must do more to deter heated interspousal arguments from escalating into abusive conduct.
[25] In addition to the compelling policy reasons for narrowing the doctrine of consensual fights in the domestic context, unlike contact sports (and, to a lesser extent, fist fights), there is no policy rationale in favour of tolerating “consensual fights” in the domestic context. Unlike what appellate courts have said about contact sports or fist fights, domestic violence has no social value. I disagree with the concerns expressed by the B.C. Court of Appeal in R. v. Casey, [1998], B.C.J. No. 2352 at para. 4, that if consent is not a valid defence to the use of force during a consensual domestic fight, both parties involved in the fight could be found guilty of assault. While that may be true, the real policy question is whether that potential legal outcome would be “wrong” from a societal perspective. It is difficult to understand why it would be contrary to the public interest to have both spouses found guilty of assault if there was a mutually physical domestic altercation. Regardless of whether convictions need to be registered against one or both spouses, at a minimum, the court would then be empowered to impose conditions of probation aimed at protecting both spouses from the risk of harm from any future altercation. In cases where charging one or both of the spouses would seem unnecessary or inappropriate, it would always be open to the Crown to exercise its discretion and withdraw a charge that is not in the public interest. In cases where the mutual assaults are sufficiently minor, the court could exercise its discretion and dismiss the charge against one or both spouses on the basis of the de minimis principle: see R v Ferreira, 2014 ONCJ 21, [2014] OJ No 189 (C.J.) (where the trial judge applied the de minimis principle to excuse a minor application of force in the domestic context).
[26] Since Jobidon, other developments in the common law’s approach to “consent” in s. 265 of the Criminal Code lend support to a narrowing of the consensual fight doctrine in the context of intimate relationships. In R. v. Ewanchuk, [1999] 1 S.C.R. 330 at para. 26, the Supreme Court of Canada made clear that the issue of whether or not a person has consented to being touched is to be determined by reference to that person’s subjective view towards the touching and not to any factors which might somehow objectively imply consent. If a court accepts that a complainant did not consent to being touched, “no matter how strongly her conduct may contradict that claim, the absence of consent is established”: R. v. Ewanchuk, supra at para. 31. More recently, in R. v. J.A., 2011 SCC 28, [2011] S.C.J. No. 28, the Supreme Court of Canada has firmly rejected any suggestion that “advance consent” can validly serve as consent for the purposes of s. 265.
[27] 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.
[28] 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.
Application of the common law doctrine to this case
[29] The evidence at trial satisfies me that, when he was slamming Ms Ram on the floor, Mr. Ram was intentionally applying force which was “ capable of causing an injury that is more than trivial ”. Following the reasoning in R. v. Bruce, the degree of force used by Mr. Ram during the “fight” vitiated any implied consent arising from Ms Ram’s initiation of physical contact.
[30] I also have no doubt that, when he was slamming her on the floor, Mr. Ram’s intention was to cause Ms Ram more than trivial bodily harm. It is a common-sense inference that repeatedly slamming someone down on the floor carries an obvious risk of fracturing a bone or causing a concussion. The fact that Ms Ram was fortunate enough to have avoided suffering bodily harm does not dissuade me from being satisfied beyond a reasonable doubt that Mr. Ram was trying to cause it. Mr. Ram admitted that he was very angry when he pulled Ms Ram off the chair and on to the floor. Despite having her at a physical disadvantage as he stood over her, he picked her up from the floor and slammed her down not once, but several times. Rather than expressing regret about having done that, he told Ms Ram that he enjoyed it. He did what he had wanted to do. He wanted to hurt her.
[31] Alternatively, I would have equally been satisfied that the violent and aggressive nature of the force Mr. Ram applied when slamming Ms Ram on the floor exceeded the reasonable scope of any consent afforded by her initiation of the “fight”: see R. v. Gardiner, supra at para. 3. Elbowing him in the groin area while she was seated and he was standing over her may reasonably have contemplated some singular retaliation, such as a blow or a kick. Indeed, Mr. Ram did physically respond to the initial elbowing by head-butting Ms Ram. Had matters ended there, I would have likely acceded to the submission that Mr. Ram’s assault fell within the scope of the implied consent. Regrettably, he escalated the attack and proceeded to repeatedly bounce Ms Ram off the floor. In view of the risk of harm associated with that assault, it was clearly disproportionate to the nature of any physical altercation initiated by Ms Ram.
[32] I am satisfied beyond a reasonable doubt that Mr. Ram intentionally applied force to Ms Ram and that nothing she said, or did, amounted to valid “consent” within the meaning of s. 265 of the Code. Indeed, I am satisfied that Ms Ram did not consent to being slammed on the floor by Mr. Ram. Mr. Ram is found guilty of assault.
Released: July 28, 2022 Signed: Justice P.K. Burstein
[1] However, in dissent, Bielby J.A. (at para. 30) did suggest that the comments in Jobidon about policy considerations supported narrowing the scope of the common law consensual fight doctrine in cases of “marital violence”. Given Bielby J.A.’s view that the trial judge found as a fact that the complainant had not consented to being choked as part of any “fight”, it was unnecessary to decide that issue.
[2] There are no reported decisions from the Ontario Court of Appeal on this issue.
[3] Government of Canada, Fact sheet: Intimate partner violence - Women and Gender Equality Canada, https://women-gender-equality.canada.ca/en/gender-based-violence-knowledge-centre/intimate-partner-violence.html
[4] By contrast, contact sports are generally restricted to players of the same gender. So, unlike violence inherent to a contact sport, few domestic “fights” involve two parties who see themselves as being physical equals to the violent conduct which follows any initial physical contact. As the Supreme Court of Canada noted in R. v. Audet, [1996] S.C.J. No. 61 at para. 20: “ The relative positions of the parties have always been relevant to the validity of consent under Canadian criminal law. The common law has long recognized that exploitation by one person of another person's vulnerability towards him or her can have an impact on the validity of consent.”