I want to talk to you today a little bit about mutual physical fights. That is where two people agree to engage in fisticuffs or a wrestling match or a fight of some sort and this sometimes can occur between husband and wife of course and clients of mine will get charged, whether it’s the man or the woman that’s accusing them of assaulting them and they will say look it is a mutual fight. We consented. We were slapping each other or grabbing or punching each other. We both started at the same time and it was both consented to or two people on the street for example or two people at a bar and the client says “is that a valid defence?” It’s not self-defence because it was agreed to. You’re not defending yourself. The short answer to this question is sometimes it’s a defence and sometimes it’s not. It is a defence if you didn’t cause any injuries to the other person. They didn’t suffer any bodily harm, for example. You are allowed to engage in a mutual fight if there’s no bodily harm and that’s a case called Jobidon, R. v. Jobidon which is a higher court decision in Canada.
Now if there is bodily harm and bodily harm by the way unfortunately has been defined at a very low level. I’ve seen bruises be defined as bodily harm even minor bruises. Some Judges will even bend over backwards if they’re really minor to say that’s not bodily harm but I’ve seen it. Certainly anything beyond bruises is clearly bodily harm. So the bottom line it’s not a defence if you’re causing injuries in that regard defined as bodily harm under the Criminal Code.
So it’s not like the mutual fight, one assault cancels out the other either. It’s not like it’s just going to go away. So the way to defend that type of charge is not necessarily by mutual. It wasn’t mutual or consented it if was bodily harm. We have to plead guilty. The only way to defend that type of charge is if it was truly acting in self-defence.
So that’s the law of consent and bodily harm when it comes to mutual fights. Whether it’s a husband and wife, intimate partners or strangers in a bar for example and that can be troubling for some people because a lot of people are under the impression that you can engage in a fight. It’s a mutual fight, cause a black eye and just walk away. Well not if the guy, person, man or woman calls the police. You’re going to be charged with an assault under our Canadian Criminal Code and you would likely be convicted unless it was in self-defence.