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Pre-trial Advocacy: Crown Pre-trials & Judicial Pre-trials

Pre-trial advocacy is essential to moving your criminal matter forward and engaging in resolution discussions with the Crown, which is called a Crown Pre-trial (CPT). It is a confidential meeting between the Crown and defence counsel. Typically, these resolution discussions centre around finding a middle ground between the Crown’s screening position and the defence position, which may include the withdrawal of charges, guilty pleas on certain conditions and to certain charge(s), or diversion options to specialized courts and programs.

If your matter is not resolved at the CPT stage, in most circumstances, a Judicial Pre-trial (JPT) is required. It is the next step to explore resolution options, streamline the issues before trial, and case manage the proceeding. A JPT is a confidential meeting between the Crown, defence, and a judge.

CPTs and JPTs are distinct legal services provided at different times, each requiring diligent preparation by your lawyer.

Some trials may involve greater complexity. Once the trial time estimate is determined and the legal issues are identified, additional steps—such as a pre‑trial motion or application—may be required.

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Application of the ‘Consensual Fight’ Defence in the Context of Domestic Assaults

Does the common law allow for the defence of “consensual fight” to excuse domestic assaults? This question has concerned defence counsel contemplating potential defences to their clients’ assault charges, Crown counsel trying to prove the accused guilty of the alleged unlawful conduct, as well as trial and appellate judges considering specific policy reasons for vitiating consent in an intimate partner violence context…

Does the common law allow for the defence of “consensual fight” to excuse domestic assaults? This question has concerned defence counsel contemplating potential defences to their clients’ assault charges, Crown counsel trying to prove the accused guilty of the alleged unlawful conduct, as well as trial and appellate judges considering specific policy reasons for vitiating consent in an intimate partner violence context.

The “consensual fight” defence based on the common law doctrine of implied consent primarily developed in the context of bar fights, where a victim’s consent to fight was sufficient to excuse some assaultive conduct, including the one causing bodily harm: R. v. Jobidon, [1991] S.C.J. No. 65 (the accused exceeded the boundaries of consent by continuing to punch the victim after he became unconscious), cited in R. v. Ram, 2022 ONCJ 347, at paras. 3 and 16-28.

In Ram, the accused openly testified about assaulting his spouse and, through his lawyer, argued the defence of consent because his spouse initiated the physical altercation during their quarrel. In brief, Tina Ram repeatedly elbowed her husband in the groin, and Samson Ram immediately became physical in response. According to his own testimony, Mr. Ram was “angry enough to want to repeatedly body slam his wife on the floor in front of their two young children,” para. 13. The court considered the doctrine of implied consent and found that it was unlikely that Ms. Ram consented to such an altercation by operation of the rule in Jobidon. As a result, the court denounced interspousal violence and the “consensual fight” defence with it for public policy reasons. As Justice Paul Burstein wrote in Ram, at para. 27: “Were it up to me, I would be satisfied that a complete elimination of the Jobidon ‘implied consent’ doctrine in the context of domestic fights is both necessary and appropriate.”

Several cases from other provinces informed a narrower interpretation of the doctrine of implied consent in the context of interspousal violence, especially when such conduct resulted in “serious or non-trivial injuries”: R. v. Bruce, [1995] B.C.J. No. 212, at para. 8; per Justice Allan McEachern, C.J.B.C., and at para. 16, per Justice Douglas Lambert; R. v. Shand, [1997] N.S.J. No. 524, at paras. 16-17. See also the pronouncements of the Alberta Court of Appeal in R. v. Barton, 2024 ABCA 34, at para. 215, leave to appeal refused Docket No.: 41154: “Notably, courts have applied an objective threshold to vitiation of apparent consent in the context of domestic violence, another area where prevention of gendered harm is a pressing societal concern” (citations omitted).

Compare R. v. Gardiner, 2018 ABCA 298, where the Alberta Court of Appeal said, “[A] valid consent to a fight does not require a consent to each and every blow,” para. 3. However, relevant policy considerations may limit the availability of this defence on a case-by-case basis: Jobidon, at paras. 124-125; and Gardiner, at para. 30. The court in Gardiner reviewed the Jobidon rule and concluded that Bradan Lou Gardiner did not consent to being choked by the appellant. Further, the Alberta Court of Appeal went on to say, at para. 31:

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. […]

In R. v. Grizzle, 2024 ONCJ 300, the accused was charged with six offences, including three counts of assault in the context of intimate partner violence. According to Conrad Grizzle’s testimony, he did “not dispute that he took [Shaylee] Colley’s phone without her consent and technically assaulted her, as captured on the video surveillance footage,” para. 56. However, the court found Grizzle not guilty of assault when he “took the phone forcibly from her hands and that it ‘felt like a struggle’” because the trial judge was “unable to conclude with certainty that he pried the phone from her hands with sufficient force that this was a criminal assault,” para. 48. Nevertheless, the “consensual fight” and de minimis non curat lex defences did not excuse Grizzle’s final assaultive conduct. Namely, “this was far from a minor assault and was a completely unwarranted application of force,” para. 71. As Justice Brock Jones wrote, at paras. 69-70:

Patience and resort to lawful means to resolve a dispute must always be chosen over an act of intimate partner violence. While I agree with Mr. Cotton-O'Brien that the context of the offences must be considered, in my view, the societal values associated with intimate partner violence will almost always preclude the successful application of the defence of de minimis or “consent fight”: see R. v. Carson, 2004 CanLII 21365 (ONCA), at para. 25; Gosselin c. R, 2012 QCCA 1874, at para. 40; R. v. Downey, 2002 NSSC 226, at para. 37.

That is not to say the defence could never succeed in a case of intimate partner violence. In R. v. R.M., 2024 ONCJ 272, the accused was charged with assault. He removed his wife’s wedding ring from her finger without her consent. He caused her no pain and only had to resort to minimal force: see para. 20. Justice Campitelli viewed this as “trivial in nature” and dismissed the charge: see para. 22.

In R. v. Avila, 2025 BCCA 5, the accused was charged with two counts of sexual assault against the complainant. They had a consensual play fight and both sustained bruising. The complainant’s mother observed some bruising on her daughter’s arm and reported the incident to the police. Although Franklin Avila was not charged with a domestic assault because the complainant reported consensual “play fighting,” she also disclosed other incidents, which led to a criminal investigation and sexual assault charges having been laid against him: at para. 10.

As case law demonstrates, given public policy reasons and societal concerns with domestic violence, a “consensual fight” defence is unlikely to excuse serious or non-trivial assaultive conduct. That said, the defence of de minimis non curat lex may be available on a case-by-case basis as demonstrated in R. v. R.M. (a wedding ring removal with trivial force case), and in part in regard to one count of assault in R. v. Grizzle (insufficient application of force to constitute a criminal assault).

Disclaimer: This was originally published by Law360 Canada (www.law360.ca), a division of LexisNexis Canada.

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Section 117.05 Firearms Hearing: A Challenge to Firearm Possession in Dupree

If a gun owner faces criminal charges and is released on bail with conditions — such as a prohibition on possessing any weapons, including firearms — or experiences a mental health crisis or struggles with addiction, the chief firearms officer typically issues a Notice of Revocation of a Possession and Acquisition Licence (PAL). The PAL holder is then required to surrender his licence, firearms and ammunition. Next, the firearms are seized by the police. Last, the Crown applies for the disposition of the firearms under s. 117.05(1) of the Criminal Code of Canada, R.S.C., 1985, c. C-46. […] The test for disposition of firearms pursuant to an application under s. 117.05(1) of the Code was recently clarified in R. v. Dupree, 2025 ONCJ 18…

Canadians may be interested in owning firearms for different reasons, including hunting, recreational or sport shooting, collecting or maintaining family traditions if they live in remote or rural areas of the country. Before anyone can own a firearm, they must go through rigorous training and successfully complete background checks.

If a gun owner faces criminal charges and is released on bail with conditions — such as a prohibition on possessing any weapons, including firearms — or experiences a mental health crisis or struggles with addiction, the chief firearms officer typically issues a Notice of Revocation of a Possession and Acquisition Licence (PAL). The PAL holder is then required to surrender his licence, firearms and ammunition. Next, the firearms are seized by the police. Last, the Crown applies for the disposition of the firearms under s. 117.05(1) of the Criminal Code of Canada, R.S.C., 1985, c. C-46. Each of these steps requires its own detailed explanation. This article, however, neither constitutes legal advice nor expresses an opinion about gun ownership. The goal is to explore the legal test used when the Crown mounts a challenge to firearm possession.

Section 117.05(4) of the Code focuses on the safety of the public, including the gun owner, who is the respondent on the firearms hearing. It states, “it is not desirable in the interests of the safety of the person from whom the thing was seized or of any other person that the person should possess any weapon, prohibited device, firearm part, ammunition, prohibited ammunition and explosive substance, or any such thing.”

The test for disposition of firearms pursuant to an application under s. 117.05(1) of the Code was recently clarified in R. v. Dupree, 2025 ONCJ 18. In Dupree, the respondent owned four long guns. Melissa Dupree was a former member of the Canadian Armed Forces who was diagnosed with post-traumatic stress disorder due to witnessing traumatic events during her service. She had some passive suicidal thoughts. Dupree acknowledged her mental condition and was undergoing therapy. However, she stopped taking her medication because of some side effects. The guns were proactively seized by the police after a call from her doctor. Dupree had no criminal record. According to her husband, who testified at the hearing, he knew about her suicidal ideation but believed she did not pose any threat to herself or her family members. The court found no basis for keeping her firearms. The Crown’s application was denied as was the related request for a prohibition order.

In Dupree, at para. 28, the court said that the application judge should review the evidence in its totality to determine whether there are legitimate concerns, on a balance of probabilities, indicating that the respondent currently lacks the responsibility and discipline required of a gun owner. At para. 29, the court went on to say that “the appropriate test is whether there are legitimate concerns the person lacks the responsibility and discipline the law requires of gun owners,” as articulated by Justice Bruce Durno in R. v. Day, [2006] O.J. No. 3187, at para. 36. See also R. v. Laxson, 2015 ONCJ 268, at para. 40.

To determine what it means for a person to lack the responsibility and discipline the law requires of gun owners, the application judge may consider the Hurrell factors, reflecting the regulatory criteria in ss. 5(1) and (2) of the Firearms Act, S.C. 1995, c. 39, applicable to the risk-assessment analysis inherent in the Crown’s application. These factors include “the interests of the safety of that or any other person”; whether the person has been convicted or discharged under s. 730 of the Code; whether the person has been treated for mental illness or confined to a hospital or institution for conduct associated with violence or threatened or attempted violence; or whether the person has a history of violent behaviour. See R. v. Hurrell, [2002] O.J. No. 2819, at para. 48.

Firearms safety is public safety; it goes beyond personal gun ownership and personal responsibility. If a gun owner experiences mental health or addiction-related issues or faces criminal charges, they might need to seek assistance and legal advice.

 

Disclaimer: This was originally published by Law360 Canada (www.law360.ca), a division of LexisNexis Canada.

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