The Fight in the Parking Lot

A fight started inside a bar. The other man was getting the better of it when the owner separated them and told the Accused to leave. He went outside and waited in the parking lot. When the other man came out, a crowd gathered to watch. The two stood facing each other, both willing. The Accused struck him in the head with great force, knocking him backwards onto the hood of a car. He kept coming and, in a brief flurry, hit him repeatedly in the head. The man rolled off the hood and lay limp. He was taken to hospital and died. The Accused was charged with manslaughter on the basis that the killing was caused by the unlawful act of assault. His defence was that there was no assault at all: s. 265 of the Criminal Code defines assault as the intentional application of force without consent, and both men had agreed to a fair fight. The Crown answered that the common law has never allowed people to consent to serious harm in a fist fight, and that in any event the later blows landed on a man who was no longer in any state to consent.