Contact in Sports: Acceptable or criminal assault?

• Author: Davison, Charles

By voluntarily taking part in an activity, individuals implicitly consent to interactions with others that would otherwise be criminal assaults.

A visitor to Earth would probably notice something odd about some of our favourite pastimes. Societies around the world consider some behaviour--of one citizen against another--to be criminal and deserving of severe punishment. But sometimes, societies glorify and reward the same behaviour if it is part of a sport or athletic activity.

In Canada, we often think of our beloved hockey at the mention of "sport". The highest levels of hockey showcase impressive puck-handling and goal scoring (and goal keeping!). But they also come with body checks and other rough behaviours, some of which land a player in the penalty box. Players engage in minor forms of violence to get possession of the puck for their team and to prevent the other team from scoring. Players also engage in various forms of misconduct such as tripping, slashing, charging and sometimes even fighting. When referees catch these acts they had out penalties:

* 2 minutes off the ice for minor infractions

* longer penalties for more serious misconduct, and

* multi-game suspensions and fines for the most serious behaviour.

For the most part, Canadian society is content to let hockey organizations deal with rules' infractions within their games. Sometimes, however, the misconduct--and more importantly, its result--is so serious that police and the courts become involved.

Over the years, Canadian judges have approached these cases--in hockey and in other contact sports--based on consent. By voluntarily taking part in an activity, individuals implicitly (and sometimes explicitly) consent to interactions with others that would otherwise be criminal assaults. In criminal law, an assault is any unwanted physical touching by one person to another. Willingly taking part in a sport that includes people touching one another--even roughly sometimes--implies consent to that touching. This is not an assault in law.

Sometimes the touching goes beyond the scope of the consent. This may mean one person committed assault. Within the National Hockey League (NHL), it is accepted that there are frequent body checks and fights between players. In minor leagues, there are often rules against some, or any, of those forms of contact. Some leagues are strictly "no contact" organizations. In some cases, judges have imposed more severe sentences on minor players in...