Photo: Contributed

Ah, fist fights: a method of resolving disputes by those who can’t use their brains. As ridiculous as they are, fist fights are common and they always attract a crowd. This article is intended to shed some light on the law that surrounds fist fighting.

Put simply, the rule is this: two people can fight, generally without it being subject to legal consequences, if the two people consent / agree to fight. This may sound odd, but people have (and should have) the freedom to choose whether or not to immaturely settle their disputes with fighting. The issue of ‘consent’ is tricky. Here are some of the wrinkles…

To start, there is no consent if an aggressor puts another person in a position in which they have to fight (such as being ‘backed into a corner’). So, if a ‘backed-up’ person swings at an aggressor, the fight is not consensual.

Consent also goes ‘out the window’ if either one of the people (who consented to fight) suffer non-trivial bodily harm, which basically means any injury worse than some bruises/minor abrasions.

Consent is also thrown out if it is obtained under fraud. For example, if someone enters a fight, not knowing that the other person has HIV, consent may be erased, as one person is exposed to a significant risk of bodily harm (that they didn’t know about). See R. v. Cuerrier, [1998] 2 S.C.R. 371.

Consent in a fight can also be withdrawn. So, if in the middle of a fight, one person says, “I’ve had enough”, then the other person has to respect that.

Also, consent (previously given) goes down the tube if someone is beating a ‘beaten’ person. Put another way, you can’t kick a person when they are down. Consent also goes out the window if someone uses a weapon.

When playing physical sports, like hockey or rugby, it is implied that participants give their consent to be hit and punched (within reasonable limits). That doesn’t mean, though, that someone can wind up and hit another player with a hockey stick or attack another player from behind.

To illustrate, consider Todd Bertuzzi’s assault on Steve Moore in the NHL. In that case, it was clear that |Moore had not consented to the fight, as he was punched from behind. If Moore had turned and faced Bertuzzi, then the result may have been much different (legally).

As you can see, consent in this context is tricky.

So, what happens when there is no consent for any of the reasons listed above? Well, as you can probably guess, there can be legal consequences.

To start, an aggressor can be sued by the victim. Depending on the injuries, the aggressor could end up paying big money.

Like an any personal injury case, an injured person could be entitled to his/her losses, which could include medical/dental expenses, pain and suffering, counselling expenses, loss of income (both past and future), as well as the cost of future medical care.

The aggressor could also receive criminal penalties, as well as a criminal record (for assault) that would impact a person’s ability to travel or get a job. You may be surprised to know that some McDonald’s restaurants now require a criminal record check.

Legal consequences aside, ‘weekend warriors’ need to recognize that they could kill someone. Despite what is depicted in television and movies, our bodies are fragile.

To illustrate, consider the case of R. v. Jobidon, [1991] 2 S.C.R. 714. In this case, Mr. Jobidon fought Mr. Haggart, who was celebrating his bachelor party, outside of a bar. Mr. Haggart was bigger and had trained as a boxer; but, despite that, Mr. Jobidon landed a (lucky?) punch on Mr. Haggart’s face. Mr. Jobidon then followed up with a few more punches. Mr. Haggart later died and Mr. Jobidon was convicted of manslaughter.

Bottom line: there are a lot of risks in fighting – so use your head (for something other than a punching bag).

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.