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Facts[]

Jobidon accidentaly killed a man named Haggart during in a fistfight outside of a hotel bar. The men had fought inside the bar, but had been kicked out and continued fighting outside. Although Haggart was bigger, and trained as a boxer, Jobidon landed one punch directly in Haggart's face, which knocked him unconscious and he fell on a hood of a car. Before he noticed that Haggart was unconscious, Jobidon then punched him four times in the face. Haggart fell into a coma and died after being taken to the hospital. Both men had consented to the fight. The Crown charged him with manslaughter and had to prove the underlying crime of assault. The appellant was acquitted at trial, because the Crown could not prove a lack of consent, but he was convicted upon appeal.

Issue[]

  1. At what point can the court vitiate consent?
  2. Can one legally consent to non-trivial bodily harm?

Decision[]

The appellant was acquitted at trial but convicted upon appeal

Reasons[]

Jobidon argued that the underlying offence of assault is not applicabcause both parties consented to the fight, and assault must lack consent; without this, he cannot be convicted of manslaughter. The court does not accept this. The court holds that the assault provision must be interpreted in light of the common law. Prior to amendment, the crime of assault was codified verbatim from the common law. As such, it was to be coloured by common law limitations on the element of consent in assault. It was a principle of common law that it would be against public policy to allow fighting with the intent to cause bodily harm to be legal because it does the activity does not have enough social utility. Consequently, since intention to cause bodily harm was itself illegal in the common law, consent to fighting could not be a valid defence.

Sopinka, in the minority, claims that the majority is attempting to create an offence where one does not exist in the Code by applying the common law; intentional application of force with the consent of the victim.

Ratio[]

  • person cannot consent to death, or to violent force in activities that do not have enough social utility.
  • Even if you seemingly consent to a fight, you cannot consent in law to the other person causing you non-trivial bodily harm.
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