Criminal Law
Statutes
Criminal Code, RSC 1985, c C-46, https://canlii.ca/t/56g1z
Defines most criminal offenses, outlines procedures for investigation and prosecution, and sets out punishments and defenses
Especially relevant sections:
- Section 14: Consent to death
- Section 265(4): Accused’s belief as to consent
Case Law
Finding Aids
Canadian Abridgment Digests
The Canadian Abridgment Digests helps legal professionals and researchers locate case law by legal topic and determine how those cases have been treated by other courts. Access through LawSource.
CRM.XIII.4.e: Common Assault
- CRM.XIII Offences against the person and reputation
- CRM.XIII.4 Assault
- CRM.XIII.4.e Common assault
CRM.XXI.4 Consent
- XXI Defences
- XXI.4 Consent
- XXI.4.a Availability of defence
- XXI.4.b Exclusion by nature of offence
Key Cases
R. v. Jobidon, 1991 CanLII 77 (SCC), [1991] 2 SCR 714, https://canlii.ca/t/1fskj
The accused and victim both consented to a fair fist fight which resulted in death and the accused charged with second degree murder. The Ontario Court of Appeal reversed the prior decision: consent to a fist fight is not a defence against a charge of assault, with some exceptions in the case of properly-conducted games and sports. The Supreme Court of Canada affirmed this ruling.
History: R. v. Jobidon, 1987 CanLII 6857 (ON SC), https://canlii.ca/t/gb99p, R. v. Jobidon, 1988 CanLII 7140 (ON CA), https://canlii.ca/t/g9l2j
R. v. Bertuzzi, 2004 BCPC 472 (CanLII), https://canlii.ca/t/1jpw8
An NHL hockey player pled guilty to assault from an incident that occured during a game. The sentence was a conditional discharge. Loss of salary due to a NHL suspension and extensive media attention were mitigating factors.
R. v. Ashton, 2017 ONCJ 585 (CanLII), https://canlii.ca/t/h5qfb
Accused pled guilty to assaulting the victim with his goalie stick during a game of recreational hockey. He was sentenced to a conditional sentence of 90 days’ imprisonment followed by two years’ probation. The decision did not follow sentencing principles established for professional and semi-professional leagues, as this recreational game was non-contact. The judge held that non-contact leagues do not consent to the same level of violence, and the athletes involved in a recreational game are in a different physical and mental state than professionals.
R. v. Miletic, 2020 BCPC 154 (CanLII), https://canlii.ca/t/j97jg at para 32.
Accused punched the victim in the face, breaking his orbital bone, during a soccer game. In part due to his lack of criminal record and numerous letters of support, accused was sentenced to conditional discharge and one year of probation. The decision disagrees with R. v. Ashton:
“I fail to see how the expectations of a higher level of violence in a professional league, or the physical training and preparation level of the athletes, decreases the need for denunciation and deterrence when the level of violence norms are exceeded, particularly when, if anything, general deterrence will be increased when the case has higher notoriety. That, in effect, says because the victim expects some level of violence, the offender is entitled to the benefit of that expectation even when the offender exceeds that level. Similarly, I fail to see how the lower expectations of violence in a non-professional league, even if true, should result in greater penalty to the offender.”