In general an assault is the intentional use of force against someone else without that person’s consent. A common defence to an assault charge is that the other person consented. In other words it was not an assault; it was actually a consensual fight. While the Supreme Court has put restrictions on how far one can consent in a fight, a consensual fight is still a defence to a charge of assault.
What is Consent?
Consent is purely subjective. If one party says they were not consenting and the judge or jury believe them then there is no consent. Of course the judge or jury must still believe that party when they say that they were not consenting. The judge or jury must look at all the evidence and determine if their conduct is consistent with their claim of non-consent.
Limits to Consent
There are limits to how far someone can consent to a fight. On public policy grounds, the Supreme Court of Canada has said that someone cannot consent to serious bodily harm. If someone consents to a fight, that might not mean they are consenting to having their face stomped on. Even if serious bodily harm does occur, that doesn’t necessarily mean that the other party couldn’t consent. For consent to not apply, serious bodily harm must occur but it also must be intended by the accused person.
Serious Bodily Harm
The Criminal Code defines bodily harm but does not define serious bodily harm. Bodily harm is defined as “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.”
It has been left up to the courts to determine what serious bodily harm is. The Supreme Court of Canada previously defined serious bodily harm as “hurt or injury that interferes in a grave or substantial way with the physical integrity or well-being of the person.” The judge or jury will determine if the injuries suffered are considered to be serious bodily harm.
Far too often when there is a consensual fight, the police charge one person with assault and leave it to the courts to figure out what happened. If you have been charged with assault after a consensual fight, give Drexler Law a call at (519) 804-1799 or inquire by email for a free consultation.