When are Consensual Fights Legal in Canada?

When are Consensual Fights Legal in Canada?

The law in Canada on consensual fights has evolved over time and has become arguably more restrictive in recent years. The Supreme Court of Canada case R. v. Jobidon, [1991] 2 SCR 714 remains the foundational law on the limits of consensual physical fights, and sets out basic rule for what forms of violence can be consented to, and what forms are sufficiently harmful that a person can be convicted of a crime regardless of whether the fights began as consensual.

The Jobidon case involved a fist fight between two men that began as a consensual fight. Mr. Jobidon landed a punch and knocked his opponent down, and then delivered several more punches to the head of the unconscious opponent/victim. The victim later died in the hospital from his injuries and Mr. Jobidon was charged with manslaughter. His acquittal at trial was overturned on appeal and conviction on the manslaughter charge was substituted. The Supreme Court of Canada upheld the conviction.

The SCC ruled that “force causing serious hurt or non-trivial bodily harm” simply cannot be consented to in Canada, legally speaking. Generally, Canadian law has paternalistic elements meant to protect people from themselves or from various forms of harm regardless of what they agree to. Sometimes individuals, particularly individuals in positions of vulnerability due to age, socioeconomic status, power disparity, or other various reasons, may agree to things that are so deeply harmful to them, and so far removed from their own best interests, that the State will claim its own role in protecting those individuals and prevent that harm by way of regulation or criminalization. Jobidon is an example of this principle in action – a person cannot legally consent to receiving serious hurt or non-trivial bodily harm during a fist fight. We also see the State’s role in limiting consensual arrangements between individuals play out in the regulation and even criminalization of lending institutions charging excessive interest rates on loans, and in the doctrine of unconscionability in contract law, to name two other examples.

The question of the State’s role in individuals’ consensual arrangements came under heavy scrutiny and public debate when the SCC was faced with the question doctor-assisted suicide, in Carter v Canada (AG), 2015 SCC 5. The SCC and the general public were faced with fundamental philosophical questions surrounding the limits of human freedom, the role of the State in preventing harm, the very definition or harm, the risks involved when the State allows some people to end the lives of others, and questions of the value of life itself and what constitutes a life worth living.

Back to consensual fights, and Jobidon: The issue of what constitutes “serious hurt” or “non-trivial” harm is complex and there have been many cases since Jobidon making determinations on that issue under various circumstances and with respect to various injuries, and the issue can never be fully resolved in law given the vast array of physical injuries and complications that a human being can potentially sustain as a result of a fight. While there will always be some grey area, there are also blacks and whites. Causing someone broken bones or permanent brain damage will almost certainly open the possibility of criminal charges, while causing some temporary light bruising probably will not. Of course, if a fight is not consensual, all of the above may result in criminal charges for the attacker, while the defender will have a self-defence claim depending on the circumstances.

The SCC also goes out of its way in Jobidon to identify and make exceptions for situations such as sanctioned boxing bouts, hockey fights, and dangerous movie stunts – the idea being to protect activities of significant cultural value. This is why we do not see hockey players or boxers being charged with assault on the grounds that, whilst obeying the rules of the sport, they caused too much injury to an opponent.

In practical terms, what does the rule in Jobidon mean for you if someone wants to start a fight with you, and you think you can win (or if you are considering challenging someone to a fight)? Suffice to say: unless you win without causing your opponent serious hurt or significant bodily harm, you are risking a criminal conviction. Indeed, Mr. Jobidon himself asserted he did not mean for his opponent to die, and the courts agreed that the fight began as consensual, but that did not prevent Mr. Jobidon from being convicted of manslaughter. Given the unpredictability of outcomes and injuries in fights, it is a very good idea to avoid them altogether rather than to take the risk of causing an unintended injury or even death, and finding oneself charged with very serious offences.

Cases:

R. v. Jobidon: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/784/index.do

R. v. Carter: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14637/index.do

Note: None of the above should be relied upon as legal advice or as an accurate account of current law. Legislation and court decisions regularly modify and overturn law in Canada.