R v Gardiner, 2018 Alberta Court of Appeal – Conviction Overturned As Complainant Testified She “Consented” To A Fight Which Included Choking


Defence appeal from assault conviction. Domestic context. At trial, complainant testified the fight was consensual but she did not want to be choked.

Held: Appeal allowed.

“The proper question was not whether the complainant consented to each and every application of force during the course of the fight, or whether she ‘wanted’ to be choked or hit. The proper question was whether choking was something that both parties accepted might reasonably occur during the fight.” Trial decision was “also flawed because it overlooks the rule that consent is a ‘purely subjective’ concept: R v Ewanchuk, 1999 CanLII 711 (SCC)…. If the complainant testified that she consented, it is no answer to say that a reasonable person would not have consented in the circumstances, or that viewed objectively it did not appear that she had consented.”

Graham Johnson – Defence Counsel