R. v. Downey, 2002 NSSC 226
[9] The Appellant argues that the learned trial judge misdirected himself on the issue of “implied consent” as defined by s. 265(4) of the Criminal Code, which states:
(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defense, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief.
[10] In R. v. Stewart, [1996] O.J. No. 2704 (Ont. C.J. (Prov. Div.), Renaud Prov. J. discussed “implied consent” in the spousal context at paragraph 26:
Little authority is required to sustain the proposition that in modern life, one may subject to all kinds of unwanted physical contact, be it the jostling for position on the subway, the unwanted “glad-handing” of politicians on the “hustings”, et cetera. However, no persuasive argument has been advanced to sustain the submissions that a spouse consents to any form of violence in a domestic argument. Nothing in the decision in R. v. Jobidon ... or subsequent decisions interpreting it appear to countenance such an extension of the law.
[11] In R. v. Jobidon, 1991 CanLII 77 (SCC), [1991] 2 S.C.R. 714, the Supreme Court of Canada held that mutual consent in a fist-fight between adults was vitiated where there is intent to apply force causing serious or non-trivial bodily harm.
[13] In R. v. Shand (1997), 1997 CanLII 3459 (NS SC), 164 N.S.R. (2d) 252 (S.C.), application for leave to appeal refused, (1998), 1998 NSCA 65 (CanLII), 166 N.S.R. (2d) 74 (C.A.), after pleading guilty to assault, the accused’s husband encouraged her to assault him in turn. As he was getting out of his vehicle she threw rocks at him. Charged with assault, she relied upon the defense of consent. MacDonald J. (as he then was) held that the reasoning in Jobidon was not restricted to barroom brawls. On the contrary, the Court had left open the possibility that the defense of consent could be vitiated on a case-by-case basis. Justice MacDonald wrote, at paragraphs 14 and 20:
It is clear to me that the Jobidon ... principle should apply to assaults flowing from domestic violence. If there was ever a need for Canadians to treat each other humanely and with respect it is in the area of domestic disputes....
Domestic violence is just too serious a problem to allow consent to be a defense in circumstances such as these. This was a volatile situation which could easily have escalated into something much more serious than one might expect from a barroom brawl.
[14] Justice MacDonald concluded that the wife’s actions had the potential to cause severe bodily harm, and consent was vitiated. He commented at paragraph 15:
Furthermore I feel 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.
[15] With respect, I find that the learned trial judge erred in holding that there is an implied consent to physical contact during an argument between spouses. I agree with the reasoning in Stewart, supra to the effect that nothing in Jobidon, supra or subsequent case law supports the proposition that marriage automatically creates such implied consent.
[16] As to actual consent, the Criminal Code, in subsection 265(4), requires that a belief by the accused that the complainant consented can only serve as a defense if the belief is both honest and reasonable. Shand, supra suggests that consent will be vitiated between spouses where the conduct has even the “potential of creating non-trivial harm”.
[17] At trial, the evidence of the complainant was that she did not consent to the Respondent pulling on her coat, and her behaviour, as recounted in her own evidence and that of the Respondent, supports this conclusion. She stated that she repeatedly pulled away and told him she did not want to go with him, in an angry tone of voice. The learned trial judge’s findings of fact bear out this version of events, and the Respondent, on cross-examination, stated that he knew his wife was upset, that she pulled away from him and that he wanted to “calm her down”. Mr. Downey knew his wife was upset and that she did not want to go home with him. With respect, there is little or nothing in the evidence to support an honest and reasonable belief in consent. It was clear that Ms. Downey did not consent.
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