Anthony De Marco
Toronto Criminal Lawyer

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R. V. J.B.

Charge: Assault

The client, a retired older man with no criminal record, who identifies as homosexual, was out for a walk. He walked past 3 teenage girls. He stated something and one of the 3 girls stated that he was ignorant. He and the 3 girls stopped walking and a verbal confrontation began. A person in the area, who was alerted to the commotion, video recorded part of the encounter on a cell phone and eventually showed it to the police. The client was arrested and charged with assaulting one of the teenage girls. The recording did not include the start of the confrontation.

The Crown called the 3 teenage girls and a police officer as witnesses. The client testified in his own defence. His evidence was that he was entitled to express his views since he was of the opinion that 2 of the girls were expressing their views which he considered to be homophobic. He felt offended as a gay man.

All of the witnesses agreed that the client was the first to speak and that the encounter eventually became physical. Who made the first contact was disputed and was not depicted in the recording. In any event, I argued that what ensued was a consensual fight. The complainant testified that “it was like a 2-way fight” and that “he was putting his hands on me and I was putting my hands on him.”

The trial Judge concluded that the client’s evidence raised a reasonable doubt and concluded that the fight was consensual. Accordingly, the client was found not guilty. At common law, a consensual fight is not a crime, unless weapons are used or the fight results in bodily harm.