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What are the laws around street fights?

Businessman fighting

In an earlier blog, post we explored different types of assault. But what about street fights? If the other person consents to a fight can you expect to be treated any differently? If someone is hurt or killed in the process, is this different from an unprovoked attack in the eyes of the law?

As we know from the earlier blog, a key element of the offence of assault is an absence of consent. In other words, it must be proven that the assault was committed without the consent of the other person in order to secure a conviction.

However, this does not mean that if there is consent, such as a street fight situation, the accused will always escape punsihment. Consent may be used as a defence but only extends so far.

Consent in violent offences

If you enter into a fist fight, it could be argued that in doing so you acknowledge there is an inherent risk. A risk that either you or the other person could be hurt. If you follow this line of thought, a person cannot really be blamed for any harm resulting from a fist fight. A street fight by its very nature is dangerous. If two people consent to a street fight, do they effectively excuse each other from any culpability in the event someone is hurt?

In Canada, you can consent to a fist fight. You cannot consent to bodily harm. In the eyes of Canadian law, a consensual fight is not an assault because both parties accept there will be some physical contact. Consent, however, does not extend to any intentional bodily harm. If someone causes someone else bodily harm in a street fight and they intended to do it, there can be no consent.

The landmark Supreme Court of Canda ruling R. v. Jobidon offers an example of where the line is drawn when it comes to consent in violent offences.  

The accused had been arguing with another man in a bar in Ontario. The accused was challenged by the other man to a fight in the bar but it was broken up. They both agreed to continue the fight outside.

After waiting outside in the parking lot, the accused punched the other man in the head, knocking him backwards onto the hood of a car. The accused carried on and, in a “brief flurry”, struck the victim repeatedly on the head, even after realizing he was unconscious. The victim rolled off the hood and lay limp. He was taken to the hospital where he later died.

The accused was charged with manslaughter and at the original trial, he was found not guilty. The trial judge held that the victim’s consent to a “fair fight” negated an assault.

The trial judge’s decision was overturned by the Court of Appeal which instead found the accused guilty of manslaughter. The Court of Appeal decision was then appealed at the Supreme Court which was tasked with deciding whether the absence of consent is an element that must be proved by the Crown in assault cases or whether limitations could be placed on consent in certain circumstances.

The Supreme Court ruled “there are limitations on the extent of harmful conduct to which one may validly consent and thereby bar conviction for assault.” The appeal was dismissed and the manslaughter charge was upheld.

The judges found: “The accused, by continuing to pummel the victim after he knew the victim was unconscious, knowingly acted beyond the ambit of the victim’s consent.” This ruling established that consent could not be used as a defence for causing serious or “non-trivial” bodily harm.

So while you can consent to a fist fight, once a person has lost the fight or the fight continues beyond the point of non-trivial physical contact, it is pursuant on the winner to stop the fight. So if a person has been knocked out or in any way decides to stop the fight, any further violence is considered a crime.

What does the Crown need to prove?

The burden of proof in assault cases is on the Crown. This means the prosecution must prove beyond a reasonable doubt that there was an absence of consent on the part of the victim. In this case,  an accused became involved in a fight during which he swung a hammer, and hit another man, eventually causing his death. The Crown failed to prove the deceased man had not consented to the fight and that the accused had not been acting in self-defence. He was, therefore, found not guilty of assault with a weapon or simple assault.

What about unintentional bodily harm?

We have seen how you cannot rely on the defence of consent in the event of someone intentionally causing another person serious or non-trivial bodily harm? But what someone gets hurt accidentally in a fist fight, ie. where there is an absence of intent?

In January, a Windsor man was avoided prison after unintentionally killing his younger brother in a back-yard wrestling fight. According to media reports, the accused put his brother in a choke hold, exacerbating a pre-existing medical condition, causing his death.  The accused pleaded guilty to aggravated assault but he received a non-custodial penalty due to the exceptional circumstances of the case. If the bodily harm was unintentional, it would therefore appear that Courts view this as a lesser offence.

Fighting in sports

Fights happen frequently in sports. In hockey, they are arguably part of the game. Jobidon established that “Unlike fist fights, sporting activities and games usually have a significant social value; they are worthwhile.” There is a degree of consent which participants agree to when they play a sport. The judges found that this consent applies, “so long as the intentional applications of force to which one consents are within the customary norms and rules of the game.”

When intentional physical contact is applied in a game, it may be protected by the implied consent so long as it falls within the scope of the game. Body-checking someone in hockey or punching someone with their guard up in boxing, while an example of intentional force without the consent of the other person, is not assault because it exists within the scope of the rules of the sport.

That is not to say that anything goes when it comes to sports. Excessive violence which extends beyond the rules of the game might negate the implied consent. An example of this is the infamous “Donald Brashear-Marty McSorley Incident”. During an NHL game, Marty McSorley slashed Donald Brashear across the side of his head with his hockey stick. Brashear fell, hitting his head on the ice and suffered a serious concussion. McSorley was later convicted of Assault with a Weapon and given an 18-month suspended sentence.

Accused of assault? We can help

As we have seen the offence of assault is not always clear-cut. The Crown must prove the assault was intentional and was committed without the consent of the alleged victim.

Assault is serious and depending on the type of assault, it can result in a lengthy prison sentence. It is highly recommended you hire a lawyer to defend your case. YYC Criminal Defence Lawyers Kaitlyn Perrin and Michelle Parhar have experience in dealing with all kinds of assault charges. They will work to ensure you get the right result.

Contact YYC Criminal Defence today to start your defence.


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