What is a consensual fight?

A consensual fight has the potential of resulting in assault charges listed under Section 265 of the Criminal Code. An assault most commonly refers to an intentional application of force to another person without their consent. This could be anything from repetitive, playful pokes to a fist fight. Consent is a key element of the offence; without it, even minor applications of force can be an assault at law.

Consensual fights involve mutual applications of force with informed consent between two parties. Whether it is siblings playfighting, a friendly spar, or even a challenge from a stranger, it is not necessarily illegal for two individuals to consent to a fight in Canada. After all, once a fight is consented to, it is generally accepted that some level of physical contact will occur.

However, there are limitations to this consent that must be explored, such as where a consensual fight results in bodily harm. So, how is consent recognized in cases involving fighting?

How is consent formed?

The first place worth looking to is the Criminal Code. Section 265 of the Criminal Code lists situations where consent has not been obtained:

– Where that consent has been obtained by force.
– Where threats or fear of the application of force have preceded the consent.
– Where it is gained by fraud.
– Where authority has exercised their power in order to obtain that consent.

These are all reasons for consent to be negated, and therefore, for the defence of consent to fail in matters relating to consensual fights. Consent has to be voluntarily given with an understanding of the involved risks. It is not something which is given carelessly or arbitrarily. Consent could be explicit, or implied, but it will always be grounded on a factual analysis of the circumstances.

Canadian law has also established that consent cannot be granted in situations which would clearly violate a social taboo. Consider Section 14 in the Criminal Code, which states that “[n]o 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.”

Expanding on this principle, several Canadian cases have found that while one can consent to a physical fight, they cannot consent to being a recipient of bodily harm. It is true, however, that some injuries are within the scope of implied consent for physical altercations – a boxer doesn’t consent to each and every individual punch, but they can consent to the fight itself and what might reasonably occur in that fight.

Therefore, consent will be negated where someone causes serious bodily harm and intended for that harm to be caused. No one can consent to a fight which, for instance, involves weapons that might result in serious bodily harm.[1] Meeting the requirements for bodily harm involves a low threshold – it must be an injury that is “more than merely transient or trifling”, according to Section 2 of the Criminal Code. In R v. McCraw[2], the Supreme Court of Canada interpreted serious bodily harm as “any hurt or injury that interferes in a grave or substantial way with the physical integrity or well-being of the complainant”.

Jobidon and Consent

One landmark Supreme Court case which provides insight is R. v. Jobidon.[3] This case involved a consensual fist fight which led to the death of a participant. After striking the victim in the head and knocking him back, the accused repeatedly struck the victim’s head despite recognizing he was unconscious. The victim was pronounced dead at the hospital. The accused was charged with manslaughter, and at his original trial, was found not guilty because the victim had consented to that fight.

In their ruling on appeal, the Supreme Court had to consider the case from the lens of consent, and found that by continuing to strike the victim past the point of incapacitation, the accused had acted beyond the bounds of what can be consented to. With the Jobidon ruling, it was formally established that consent cannot be a defence to assaults which cause serious hurt or non-trivial bodily harm.

The Supreme Court also considered the lack of social utility in fist fights as compared to fights in the context of sports. It was found that if people could consent to violence against themselves, then the perpetrator of that violence might have contempt for the law and may be more inclined to commit other violent acts. The Supreme Court recognized, however, that many fist fights are spontaneous, and so a limit was drawn: force which is intended to cause serious harm falls outside of the grounds for consent.

If the accused in this case did not hit the victim while he was incapacitated, then the consent may not have been negated. It was the escalating nature of the violence and the further harm caused which made it a crime. The accused was found guilty of manslaughter.

Consensual Fights and Sports

 Sporting events are often excluded from the general rule because they have positive social value. In boxing, the aim is very clearly to harm your opponent into submission, and this is considered permissible within limits. Another prominent Canadian example is hockey, a game which revolves around body contact. There are players who are culturally noted as ‘enforcers’, whose job it is to be physically aggressive and to goad opposing players into fights.[4] Hockey is known to lead to concussions and severe injuries. But when do these conflicts cross the line?

The courts have the unenviable position of deciding where the limitations of violence in sport may or may not exist. The issues are numerous, including the scope of liability, the implied consent that all players are bound by, and the intensity of the game leading to instinctive action. Because of the reactive nature of a sport, it is hard for the courts to tell whether or not an intent to harm specifically existed. A prosecutor must show, in the context of hockey, that the accused believed his actions were not consensual within the sport. This presents a lot of difficulty in judgment.

Hockey organizations are also liable to sanction their players’ misconduct in their own way, which can bear weight on the judgment of the courts. In 2005, Todd Bertuzzi, a Vancouver Canucks player, pled guilty to assault causing bodily harm after assaulting a Colorado Avalanche player. The victim’s injuries included long-term brain damage. But the courts decided a conditional discharge was a reasonable sentence because of the high-profile nature of the case, the accused’s previous good character, and the ramifications it had on his career.

A good rule of thumb is that excessive violence beyond the traditional norms of the sport are grounds to negate the consent of a fight and may open the door to criminal charges.

Defences to Assault

If the fist fight is consensual, it may not be an instance of assault. This is the first defence. The Crown needs to prove beyond a reasonable doubt that consent was negated in some way. In the context of consensual fist fights, it would need to be shown that an accused was acting recklessly despite the risk of bodily harm being apparent.[5] The accused in R. v. Jobidon, for instance, was reckless to the fact that the victim was already unconscious and unable to fight back.

The second defence would be in an instance where someone believes they have consent, but where this is not the case. This defence is codified in Section 265(4) of the Criminal Code:
“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 defence shall instruct the jury…to consider the presence or absence of reasonable grounds for that belief.”

The final defence is one of self-defence. Self-defence needs to have an “air of reality” (i.e. some evidence that supports it) and must be proportionate to the circumstances. In R. v. Michaud,[6] both accused had gotten in an altercation with the complainant, an imposing pub manager, who conceded that he may have pushed them first. One accused, who also had mistaken belief in the complainant’s consent to the fight, struck the complainant with his fists, but not with disproportionate force despite “getting the best of the altercation”. The other accused, fearing for the safety of his friend, struck the complainant with a bar chair, causing minor bruising. Given the complainant’s size and stature, it was his belief “that his friend would suffer serious and immediate injury unless he intervened”. The Crown failed to prove beyond a reasonable doubt that both accused were not acting in self-defence.

Taking the next step:

Are you concerned over an assault charge, but believe that the altercation was consented to? Do you think that this is a defence available to you? Lakin Afolabi LPC has over 10 years experience in defending individuals in complicated matters like assault charges. Allow us to step in and formulate a comprehensive approach to your case. Our office takes a human approach law, and we understand that people sometimes find themselves in difficult situations. Take the next step and book a consultation with one of our lawyers today.

[1] http://criminalnotebook.ca/index.php/Consent_to_Physical_Contact

[2] https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/790/index.do

[3] https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/784/index.do (R. v. Jobidon [1991] 2 SCR 714)

[4] https://www.lawnow.org/contact-in-sports-acceptable-or-criminal-assault/

[5] https://www.canlii.org/en/nl/nlca/doc/2011/2011nlca6/2011nlca6.html (R. v. Sullivan 2011 NLCA 6)

[6] [2006] A.J. No. 1246

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