Jobidon killed a man named Haggart, who was celebrating his bachelor party, 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. Jobidon then punched him four times in the face. Haggart was in a coma and died after being taken to the hospital. Jobidon stated that he did not know that Haggart was unconscious when he continued to hit has it all happened so fast. Both men had consented to the fight. The appellant was acquitted at trial but convicted upon appeal.
- Is absence of consent a material element that must be proved by the Crown in all cases of assault?
Jobidon argued that the underlying offence of assault is not applicable because 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. Consequently, since intention to cause bodily harm was itself illegal, consent to fighting could not be a valid defence.
Sopinka, in the minority, takes issue with what he sees as the majority's attempt 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.
- person cannot consent to death, or to violent force that is unreasonable conduct in the circumstances.
- Even if you consent to a fight, you cannot consent to the other person using excessive force to kill you.