Jul 28, 2020

Marriage is not a rugby match

R. v Gardiner, 2018 ABCA 298 (CanLII)

A fraught legal issue bubbled up to the surface at the ABCA in Gardiner: should the common law continue to recognize the legal effectiveness of consent in the context of domestic assaults (which otherwise do not reach the Jobidon threshold, namely, of bodily harm, both intended and caused)? The majority, in allowing Mr. Gardiner’s appeal, largely ignored this “difficult policy” issue but expressed concern that “[i]f the consent was never recognized...both participants in a consensual domestic fight would be guilty of assault” (2). Madam Justice Bielby, dissenting in the result, opined that the domestic violence may be “another situation” where consent ought to be ineffective on policy grounds (30-31).

The Proceedings Below

The facts in Gardiner were messy and, perhaps, somewhat unusual. The complainant was a reluctant witness who was compelled to come to court by a material witness warrant. She testified that the fight, which began in the early morning when she had returned to the family home intoxicated, was “consensual”, but seemingly understood this term to mean “equal” not “by agreement”. During the fight she hit the appellant, he pushed her and then he “took her to a window where he grabbed her around the neck and began to choke her”. The complainant testified that she did not “like” or want to be choked (1, 11-14, 23, & 25).

In apparently brief reasons, the trial judge concluded that “it is clear that she did not consent to being choked”, observing that “it is difficult to imagine that a person would engage in a consensual fight in anticipation that they would be choked” (4 & 14). Mr. Gardiner was convicted.

On Appeal: the Majority

The majority, proceeding on the basis that consent was legally effective in the domestic context, and (unironically) relying on a case dealing with “sporting events”, held that consent “extends to those blows that might reasonably be anticipated to occur in the course of the fight” and that “[t]he consent is to the risk associated with the fight, not to each and every blow” (3). In their view, the trial judge’s conclusion “that it is difficult to imagine that a person would engage in a consensual fight in anticipation that they would be choked” effectively eliminated “the concept of consent altogether”. In short, the trial judge failed to consider whether choking “was something that both parties accepted might reasonably occur during the fight” (4-5).

Moreover, the trial judge also failed to consider “whether the intentional “choking” […] was sufficient to constitute an intent to cause non-trivial bodily harm”. The majority, assuming that choking might constitute bodily harm, declined to consider the question of intent citing a lack of detail in the record and the lack of argument on appeal (6). Furthermore, because consent is a “purely subjective concept”, the majority held that the trial judge erred by considering whether a reasonable person - not just the complainant herself - would have consented in the circumstances (7).

Comprised of Mr. Justice Costigan and Mr. Justice Slatter, the majority allowed the appeal and, purporting to rely on R v Taillefer, 2003 SCC 70, directed a stay of proceedings on account that the appellant had already served his sentence.

On Appeal: the Dissent

Madam Justice Bielby would have dismissed the appeal. For her it was open to the trial judge to reject the complainant’s evidence that the fight was “consensual”. After all, the complainant seemed to have understood that “consensual” meant “equal” not “by agreement” (23). Moreover, given the domestic context, it was reasonable to conclude that the complainant testimony was influenced by her desire “to have the father of her children acquitted of this criminal charge” (22, 24-25). Indeed, her evidence of consent could not be “divorced from the balance of her evidence about being choked”, including having “a bleeding nose and red marks on her throat” (26).

More significantly, given the complainant’s direct evidence about not wanting to be choked, it was reasonable for the trial judge to conclude that any consent “did not include consent to be choked”. In other words, “the choking was not reasonably anticipated; it changed the nature of the engagement” (34 & 38). Indeed, the trial “was not bound to infer that a consent to a physical fight between spouses included implicit consent to be choked” (27). Perhaps taking issue with the majority’s reference to “sporting events”, Justice Bielby ruefully observed that “[m]arriage is not a rugby match” (28).

Acknowledging that she was expressing obiter, Justice Bielby stated:

Domestic violence has no social value whatsoever, and so may form another situation where consent is not operative, or does not go so far as to include consent to every possible type of blow that might be landed, short of one causing grievous bodily harm. More importantly, perhaps, there are legitimate policy reasons for a strong resistance to recognizing the validity of consent to intentional applications of force in family situations, including notions of breach of trust in domestic/family relationships, preserving the sanctity/safety of one’s home, the time and money that goes into policing and prosecuting these matters, the strain on social and family services and the reality that women’s shelters are often at full capacity [and may well not exist in remote rural communities such as Janvier South]. In the words of Gonthier J in Jobidon at 765-766, there is also a heightened “instance of the criminal law’s concern that Canadian citizens treat each other humanely and with respect” (31).

Justice Bielby also questioned how specifically the act of choking in this context could be permitted on the basis of implied consent given its “potential to cause serious harm or death” (32-34). Moreover, “even if it were possible to give an operative consent to being choked by implication drawn from a consent to a physical fight between domestic partners, that consent might well be vitiated on public policy grounds” (35).


Before providing commentary, I will provide a brief summary of the law of consent from Jobidon. Justice Gonthier, writing for the majority, held that the common law limited the legal effectiveness of consent in “a weaponless fist fight between two adults”. The Supreme Court in Paice later confirmed this “appropriate restraint”, namely, that consent in this context does not extend to where bodily harm is both intended and caused. In dissent in Jobidon, Justice Sopinka declined to read-in any common law limit to “consent” into s. 265 of the Code, preferring to allow for the “careful scrutiny” of “the scope of consent” in cases of violent activity, and observing that “the more serious the assault the more difficult it should be to establish consent”.

A key feature of the majority’s approach in Jobidon is its embrace of “policy considerations” to modify the plain language of “consent” in s. 265 of the Code. Such considerations, located in the “archive” or “register” of the common law, include: the social uselessness of fist fights; their harmful potential for instigating a brawl or “a truly macabre” public spectacle; and the contrasting social and moral values in deterring this behaviour (or, more modestly, not normalizing or countenancing this behaviour). While acknowledging “some degree” of paternalism and restraint on autonomy, this was just “one instance of the criminal law's concern that Canadian citizens treat each other humanely and with respect”.


Leaving aside the unseemly reference to “sporting events” in its effort to elucidate “the ambit of consent” in a physically dynamic context, is simply hard to accept a few things stated by the majority in Gardiner. I propose to discuss two of these things, while acknowledging that there could be more.

First, like Justice Bielby, I am not convinced that two adults in a weaponless fist fight or pushing match, domestic or otherwise, would reasonably anticipate choking to occur in the course of such an altercation. While it is likely true that consent need not attach to “each and every blow”, there is an obvious difference between exchanging in punches or pushes with the compressing someone’s neck. Perhaps not quite akin to the introduction of a weapon, there does seem to be a basis to find that the scope of consent will often be exceeded in such circumstances, not unlike in the pre-Jobidon case of MacTavish, where the combatant had consented to a “fair fight” not to having his "head kicked in".

Second, given the majority’s decision to allow the appeal, I do not understand how they could not order a new trial. It seems to me that they should have ordered a new trial but strongly hinted that the Crown might not pursue a new trial given that the appellant had already served his sentence (as is done all of the time, including here and here). To stay the proceedings on the strength of paragraph 133 of Taillefer - a case involving a ‘serious infringement’ of the accused’s right to make full answer that did not rise to the level for a s. 24(1) stay but where the accused had already served his sentence - seems bizarre and, perhaps, wrong.

Although I generally agree with Justice Bielby as to the validity of the appellant’s conviction, I am not certain there is a compelling basis to draw further “protective lines” to limit consent in the domestic context generally. Some courts in Canada would set the bar lower than the Jobidon threshold. Citing the pressing need to deter family violence, Justice MacDonald (as he then was) in Shand, adopted the concurrence of Justice Lambert in Bruce, where he expressed, in obiter, “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” (italics added). A smattering of courts, particularly in Nova Scotia and most recently in Denny, have continued to apply this modified approach in the domestic context.

While “[a]utonomy is not the only value which our law seeks to protect”, it seems to me that most cases that are otherwise below the already low Jobidon threshold will be appropriately sorted out on the facts, by “careful scrutiny” of the presence and the scope of consent, having regard to context and credibility. Indeed, true consent fights may, as a matter of fact, be “really quite rare”. Moreover, I am not sure how the “time and money” associated with policing and other social services, as mentioned by Justice Bielby (para. 31), would be ‘saved’ with having both participants in a consensual domestic altercation liable to criminal charges and prosecution. It may be that such proposed changes are ‘a solution in search of problem.’

That said, as a form of weaponless assault, choking is uniquely dangerous. Moreover, some American research suggests that women have a much higher risk of homicide from choking than men, and that women who have been previously choked by an intimate partner are at a greater risk of homicide than woman who have been abused by an intimate partner but were not choked. In other words, the deterrence rationale may be compelling with respect to choking in the domestic context.

Perhaps this could be taken a step further: given the absence of any social value in choking that arises spontaneously (if not aggressively) from a fist fight or pushing match, as well as its inherent dangerousness, particularly in this context, it may be that any limits on consent need not be restricted to the domestic context. However, any limit could only be justified in narrow circumstances. After all, consenting adults should be allowed to explicitly agree to choking in other contexts, including martial arts and law enforcement training, where the conduct has social value and involves much less danger.

Ultimately, I tend to think that in any given case short of the Jobidon threshold triers of fact are well-equipped to appropriately sort out whether consent, as a factual matter, is present and, if so, whether the scope of that consent was exceeded in the circumstances. This is what the trial judge did in Gardiner, and the Saskatchewan Court of Appeal did in Keepness, and they did so without having to further modify the meaning of “consent” in s. 265 of the Code. As a practical matter, in the absence of explicit agreement to choking and even in the absence of actual harm caused, it is unlikely that choking, which arises spontaneously, if not aggressively, from a fist fight or pushing match, will ground a successful “defence of consent”.