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Tom Rees | Criminal Defence Lawyer Winnipeg
8
Jan

Misconception About Consent and Bodily Harm

The Supreme Court of Canada adjusted the rules with respect to consent and bodily harm in the case of R. v. Jobidon, [1991] 2 SCR 714. The Court made an exception for socially useless activities like fist fights to the general rule that you can consent to bodily harm.

Canadians have always had the right to consent to bodily harm. Surgery, tattoos, piercings, rough sports, boxing and ultimate fighting are just a few of the examples of the general rule that allows for consent to bodily harm. The Supreme Court in Jobidon, and later in Paice, decided that given that fistfights have no social value, there should be an exception to the general rule thereby limiting people’s right to consent to bodily harm.

SCC:

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. (This test entails that a minor’s apparent consent to an adult’s intentional application of force in a fight would also be negated.) This is the extent of the limit which the common law requires in the factual circumstances of this appeal. It may be that further limitations will be found to apply in other circumstances. But such limits, if any, are better developed on a case by case basis, so that the unique features of the situation may exert a rational influence on the extent of the limit and on the justification for it.

Stated in this way, the policy of the common law will not affect the validity or effectiveness of freely given consent to participate in rough sporting activities, so long as the intentional applications of force to which one consents are within the customary norms and rules of the game. Unlike fist fights, sporting activities and games usually have a significant social value; they are worthwhile. In this regard the holding of the Saskatchewan Court of Appeal in R. v. Cey, supra, is apposite.

You can consent to bodily harm. The Crown must show that the bodily harm was caused in the course of a fist fight, or some other activity that has negative social value. In cases where bodily harm is caused, the Crown must prove that the accused intended to cause bodily harm (intended consequence) beyond a reasonable doubt in order to convict the accused. Proof of bodily harm caused by the accused is not enough.