Bar Fights, legal or not?
If you are currently sitting in a bar and are fuming over another patron who just looked at your girlfriend or boyfriend or who bumped into you and spilled your drink, you may want to finish reading this before you start throwing any punches.
Bar fights are something that we think of as being common occurrences; we see them portrayed in movies and television all the time; perhaps the most famous example comes from our hometown of Calgary and the particularly entertaining brawl that happened in the film Cool Runnings at the late and great Ranchman’s country bar.
However, before you jump into the fray, the most critical question is: is this legal? And more importantly, is it worth the risk? The law on consensual fighting is straightforward when it comes to sporting events. For example, when two boxers get into the ring or two hockey players drop the gloves, there is no question that what they are doing is legal (unless they bite an ear off or try to use their skates), when it comes to bar fights however the law is much murkier.
The Supreme Court of Canada first weighed in on the question of consensual fist fights between two individuals in the seminal case of R v Jobidon, 1991 CarswellOnt 1023. In this case, Mr. Jobidon, described by the court as a young, fit, and powerful man, got into a fistfight with a man called Rodney Haggart in a hotel bar. Haggart, who had prior training as a boxer, was getting the better of the fight when the hotel staff intervened. They then decided to “take it outside,” as they said. Mr. Jobidon waited for Mr. Haggart in the parking lot, and when Haggart exited the hotel, they got face to face. Mr. Jobidon punched Mr. Haggart in the face and knocked him out; after that, he continued forward and struck him four to six further times in the head.
The tragic result of this story is that Mr. Haggart died because of the punches he received from Mr. Jobidon. Mr. Jobidon was then charged, and the courts were left to consider whether he was guilty or innocent of manslaughter. The main question is: did Mr. Haggart’s consent to engage in this fistfight serve as a defence for Mr. Jobidon?
This fact scenario is not an unusual one. There have been many cases of “one punch manslaughters,” where one person punches the other and either kill them with the punch itself or knocks the other person unconscious, and they fall and hit their head on something killing them.
Frankly, this could happen, and you could either be on the receiving or delivery end of one of these punches, which should dissuade you from getting into a fistfight. But if that does not, then what happened to Mr. Jobidon and what can happen to you based on the law should certainly make you think twice, if not six times, about getting into that bar fight.
In Mr. Jobidon’s case, the Supreme Court of Canada ruled that two individuals could consent to a fistfight. However, and this is a big, however, that consent would be vitiated, meaning erased, if the other party intentionally applies force to cause serious hurt or non-trivial bodily harm to the other in the course of the fight. You may look at this decision and still believe you can engage in that consensual fistfight, explicitly thinking, well, what if I don’t intentionally apply force to cause serious or non-trivial bodily harm to the other? But how could you ever possibly say that? That is the entire purpose of a fistfight, to either knock the other person out or beat them into submission. You may go into court and testify that your purpose for punching the other person in the face was to win the fight, but then the question becomes, how do you win the fight? And the answer is either by beating the other person into submission or knocking them out, both of which would likely constitute non-trivial bodily harm.
The Supreme Court of Canada, however, clarified the law almost 20 years later in the case of R v Paice, 2005 SCC 22. In this case, there was another consensual bar fight, with one of the combatants dying because of the fight. The SCC stated that the test for vitiating consent in a consensual fistfight is if the person intends to cause serious or non-trivial bodily harm AND does so. Therefore, there has to be an intent to cause harm and the harm actually has to occur. Again, you may think that this opens the door once again to legal bar fights. However, it’s not quite that simple.
Furthermore, consider what the intention of a bar fight is: to either beat the person into submission or knock them out. The odds of causing serious bodily harm are, therefore, relatively high. And again, how can you say that you did not intend to cause that kind of harm when that is the sole purpose of the fight? Therefore, for the defence of consent to assist you after getting into a bar fight, you essentially have to hope that your combatant does not sustain any lasting injuries.
That is difficult to get around in this area of law, and Mr. Jobidon could not do so, and he was ultimately convicted of manslaughter. Neither could Mr. Paice; he was acquitted at the trial level but was sent back for another trial after the appeals. That is not to say that other defences may not be available to you if you find yourself in a scrap at a bar, but the other person’s consent will probably not get you off. So, be smart, don’t fight, and if you do, don’t be the one to throw the first punch!