Le consentement à la bagarre est vicié lorsqu'une partie utilise des tactiques qui transforment la nature de la bagarre consensuelle, la faisant passer d'une activité présentant un certain risque de blessures graves à une activité présentant un risque important de telles blessures

R. v. Toth, 2024 BCCA 139

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[77]      The absence of consent to intentionally applied force is a material element of the offence of assault under s. 265 of the Criminal Code, and therefore consent acts as a defence to assault. In a manslaughter charge based on assault as the unlawful act under s. 222(5)(a), consent will indirectly act as a defence to that offence as well. The role of consent in assault in relation to a fist fight or brawl was discussed in R. v. Jobidon, 1991 CanLII 77 (SCC), [1991] 2 S.C.R. 714. Justice Gonthier, for the majority, concluded that common law principles limiting consent to assault continue to apply, but in narrow scope:

The law’s willingness to vitiate consent on policy grounds is significantly limited. Common law cases restrict the extent to which consent may be nullified; as do the relevant policy considerations. The unique situation under examination in this case, a weaponless fist fight between two adults, provides another important boundary.

The limitation demanded by s. 265 as it applies to the circumstances of this appeal is one which vitiates consent between adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl.

[Emphasis in original.]

[78]      In R. v. Paice, 2005 SCC 22, Justice Charron, for the majority, made it clear that Jobidon requires serious bodily harm be both intended and caused for consent to be vitiated: at para. 18.

[79]      This formulation has been applied in numerous cases involving fist fights between adults: see, for example, R. v. Sullivan, 2011 NLCA 6; R. v. McDonald, 2012 ONCA 379; R. v. Modeste, 2015 ONCA 398; and R. v. Zsombor, 2023 BCCA 37.

[82]      It is not certain that recklessness and the objective foreseeability of serious bodily harm is sufficient to establish the intention requirement to vitiate consent. The majority reasons in Sullivan agreed with Welsh J.A. to the extent that the recklessness standard applied to the offence of aggravated assault but noted the difficulty in applying this standard in the context of a consensual fist fight: at paras. 45–46.

[87]      Respectfully, I disagree. The defence never asserted a defence of consent, for good reason. The evidence does not support any finding of an agreement or understanding between Mr. Ocampo and Mr. Toth to engage in a fight, express or implied. Although Mr. Ocampo sought out the encounter, there was no evidence on which an inference could be drawn that Mr. Toth consented to being attacked by pepper spray and what followed was a consensual fight. R. v. Piapot, 2014 SKCA 9 at para. 32 and R. v. Mitchell, 2015 ABPC 99 at paras. 68–69, cases on which Mr. Toth relies, merely support the proposition that, in certain circumstances, consent may be found in an implied agreement to engage in a fight. In neither case did the court find there was consent to engage in a fight, and as I have explained, there is no evidence supportive of the conclusion that was the case here.

[89]      The concept that consent can be withdrawn during a fight, as noted by counsel in this passage, is consistent with the jurisprudence. As Justice Frankel held in Zsombor, consent is vitiated where one party employs tactics that change the nature of what began as a consensual fight “from an activity with some risk of serious bodily harm to one with a significant risk of such harm; i.e., tactics that were not reasonably contemplated in the first instance”: at para. 33.