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The Defence of Implied Consent to Domestic Assault

The offence of assault is widely defined and can capture all kinds of contact that occur in a domestic relationship. It includes any circumstance where a person, without the consent of the other person, applies force intentionally to that person, directly or indirectly. It also includes certain situations where no actual force is applied. 

Consent and self-defence can both be defences in these kinds of cases.  However, there is also a defence of implied consent that is distinct from these other defences and can apply in certain circumstances involving relatively minor conduct.  The defence is made out if the evidence raises a reasonable doubt as to whether there was more force than the ordinary touching that takes place with implied consent in a conjugal relationship. The Ontario Court of Appeal has cited as an example a stiuation where an accused takes his wife's elbow to guide her away from people so they could have a private conversation.  Although this action technically meets the defitinon of assault, the defence would operate to alleviate the harshness of the criminal law.  

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The Defence of Implied Consent to Domestic Assault | Bayne Sellar Ertel Carter