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Criminal - Consent. R. v. Trowbridge
In R. v. Trowbridge (Ont CA, 2026) the Ontario Court of Appeal (five judge panel) allowed a Crown criminal appeal, here brought against an "acquittal for first degree murder in relation to the death of his common law spouse".
Here the court, in modifying the Zhao test for vitiating criminal consent, interestingly considers the basics of consent in criminal law (wrt all of homicide, assault and sex):a. Legal limits on consent
[127] The law places both statutory and common law limits on consent beyond which the criminal law may intervene. These are largely public and social policy decisions, ones that, for the most part, Parliament makes on behalf of society, as it plays a leading role in creating the substantive criminal law.
[128] There are numerous statutory limits on consent. For instance:. As a matter of good public policy, s. 14 of the Criminal Code precludes a person from consenting to being killed: “No person is entitled to consent to have death inflicted on them, and such consent does not affect the criminal responsibility of any person who inflicts death on the person who gave consent.”
. For purposes of assault, s. 265(3) of the Criminal Code provides that “no consent is obtained where the complainant submits or does not resist” the touching by virtue of “threats or fear”, “fraud” or the “exercise of authority”.[8]
. Consent for purposes of sexual activity is limited by s. 273.1(2)(c) of the Criminal Code, which provides that no consent to sexual activity is “obtained” if the accused “induces the complainant to engage in the activity by abusing a position of trust, power or authority”. [129] These are just a few examples of when a complainant’s consent is rendered legally ineffective by statute, in essence, neutralizing the insistence on the complainant’s non-consent as an essential element of the crime, and turning a “yes” by the complainant into a “no” at law.
[130] Although the Criminal Code sets out many situations where consent is vitiated or rendered legally irrelevant, the common law also fills some important gaps. This gap-filling is recognized in s. 273.1(3) of the Criminal Code, which recognizes that there is no exhaustive list of circumstances in which consent to sexual activity will be vitiated: “Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.”
[131] Turning to the common law, R. v. Jobidon, 1991 CanLII 77 (SCC), [1991] 2 S.C.R. 714, is the first case in which the Supreme Court clearly articulated a common law rule for vitiated consent, albeit not in the sexual assault context.
[132] The facts of Jobidon are well known. Two men were engaged in an ostensibly consensual fist fight outside of a bar. One fell to the ground and died. Mr. Jobidon was prosecuted for unlawful act manslaughter, the alleged unlawful act being an assault. To prove the unlawful act of assault, the Crown had to prove that Mr. Jobidon intentionally applied force to the deceased and that the deceased did not consent to that application of force.
[133] However, Mr. Jobidon said that there was consent to the application of force because the fist fight was entirely consensual. He said that meant that there had been no unlawful act because the Crown was unable to establish the deceased’s non-consent, an essential element of assault.
[134] The Supreme Court took the opportunity to discuss when consent to bodily harm is vitiated at common law. Drawing on what was essentially described as good public policy, the majority concluded that “consent between adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl” (emphasis omitted) will have no legal force: at p. 766. The Supreme Court thereby developed the common law to define the limits on legally effective consent, finding little social utility in allowing people to consent to seriously harming one another in this type of activity. Therefore, consent is vitiated at common law in a fist fight or brawl where “serious harm [is] both intended and caused”: R. v. Paice, 2005 SCC 22, [2005] 1 S.C.R. 339, at para. 18.
[135] The Jobidon majority signalled the need for a cautious approach to vitiating consent at common law. As the majority observed, there are numerous circumstances where consent to bodily harm is socially acceptable and, in fact, can add to the social good. Rough sporting activities are one example, even if they result in significant bodily harm, provided that the players causing bodily harm are operating “within the customary norms and rules of the game”: Jobidon, at pp. 766-67. Unlike fist fights, rough sporting activities can have “significant social value; they are worthwhile”: Jobidon, at p. 767. Therefore, consent to bodily harm will not be vitiated unless the accused acted outside the customary norms and rules of the sport.
[136] Jobidon notes other examples of consensual bodily harm where consent is not vitiated because of social utility, including “stuntmen who agree in advance to perform risky sparring or daredevil activities”: at p. 767.
[137] Beyond those examples, one can think of other consented-to activities that involve “bodily harm” that are not seen as criminal – for example, getting tattooed or pierced. In fact, even activities that may result in serious injuries may, as a matter of law, be consented to. For instance, mixed martial arts contests are legal under specified conditions: see s. 83 of the Criminal Code.[9] This consented-to activity may result in such severe injuries that medical practitioners and paramedics are required to be on standby at ringside: Rules for Combative Sports Regulation, O. Reg. 565/24, s. 1.
[138] This all begs the question: why do we allow people to consent to the infliction of some bodily harm, even very serious bodily harm in some circumstances, yet not when it comes to sexual activity? This question was posited by the trial judge in Pearson, a case involving alleged BDSM practices.
[139] In Pearson, the court heard expert evidence respecting BDSM activity, including that approximately five percent of the population engages in it “to the point of recognizing and naming it as such” and that the “value of BDSM” includes, but is not limited to, mental health benefits, personal growth, self-actualization, connection with partners and community, and so on: at paras. 86-87.
[140] Although Pearson ultimately turned on a different point, Carter J. took the opportunity to posit the following thoughts, at paras. 89-90:[O]ne wonders why the much more extreme violence found in mixed martial arts (MMA) is not sanctioned. As pointed out by the Defence, in MMA, extremely serious injuries are intentionally caused to win a fight. Noses break. Bones break. It is not criminal assault if both parties consent to the activity. The vast majority of Canadians, surely, do not engage in this practice.… Many will not understand how a fan watching such violence could be entertained. But some people derive some value from it.
In light of the evidence of both the Crown and Defence expert in this case, a similar argument could be made for BDSM. A majority of Canadians do not engage in it.… Many will not understand why anyone would want to engage in it. But again, some people [derive] some value from it. [141] As this passage highlights, drawing lines using the doctrine of vitiation is a policy-driven exercise, one that moves into the realm of developing substantive criminal law. Typically, of course, it is Parliament that leads the way in creating the substantive criminal law, with the courts taking a “supporting role”, primarily by way of interpreting and applying the statutory law: Michael Plaxton, Sovereignty, Restraint and Guidance: Canadian Criminal Law in the 21st Century (Toronto: Irwin Law, 2019), at p. 370. Seen from that perspective, there is good reason to heed Jobidon’s caution that courts should exercise restraint when creating rules about the vitiation of consent, rules that limit an individual’s ability to consent to certain uses of their body.
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