Fri 19 August 2016
“Hey buddy, I don’t like the cut of your jib,” an apparent Blue Jays fan taunted. “Ya, well, the Blue Jays suck! Want to take this outside?” He retorted. The two men proceeded outside where punches were exchanged. This type of bar fight or school yard brawl occurs all too frequently (though probably under less simplified and trivial circumstances) where it looks like the fight is between two consenting adults. But is this lawful? Section 265(1) of the Criminal Code of Canada states: 265 (1) A person commits an assault when (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or (c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
Application (2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault. Consent (3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of (a) the application of force to the complainant or to a person other than the complainant; (b) threats or fear of the application of force to the complainant or to a person other than the complainant; (c) fraud; or (d) the exercise of authority. Accused’s belief as to consent (4) 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, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief. An initial reading of this provision leads to an answer in the affirmative - consent provides a complete defence. However, the common law places limitations on consent which must be examined. If you require the services of a criminal lawyer, the internet is your best guide. If you are based in Brantford the search using appropriate phrases like ‘Brantford Criminal Lawyer’ to find expert lawyers near you.