Ok so here’s a question for you, if you don’t mind: scrum occurs at the crease in adult beer league hockey. It’s only pushing and shoving, until Player A punches Player B in the face with a gloved hand. Is that assault, or covered under the rules of consent? Genuinely curious, because after reading your lengthy post, I’m still unsure of whether it would be considered assault or not (given that the players didn’t “square up” ie. Both consent in the traditional sense).
OK, this is a good question. Unfortunately like the asshole lawyer I am I won't give you a straight answer. Because I can't.
Step 1:
So no, I don't think consent applies here. You don't automatically consent to a fistfight in a hockey game because fistfights are explicitly against the rules of hockey. Pushing and shoving doesn't imply consent to fighting.
Step 2:
What about self-defence? Well the scrum in the crease gives rise to the question. I gave a link to the self-defence provisions of the Criminal Code before, but here I'll quote them:
34 (1) A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.
As you can see, there are a whole bunch of factors a judge has to take into account in deciding whether self-defence applies. It's not as simple as saying 'well this guy punched first so it's automatically self-defence'.
And I'm not going to go into the difference between a punch with or without a glove - only to note in every hockey fight I've seen they "drop the gloves" before the fight.
Step 3:
So let's say self-defence (Section 34) doesn't apply.
I didn't want to get too deep in the weeds before, but what the heck:. Even though something might technically be a crime, that doesn't mean the police, or the Prosecution, will lay a charge.
Here in Alberta (and every other jurisdiction has a similar, but not identical, rule), charges will only proceed if A: there is a reasonable likelihood of conviction, and B: there is a public interest in the prosecution.
So both come into play. In a hockey game where things happen in split seconds, if there is no video it can be hard to determine after the fact exactly what happened. It's always open for police/prosecution to say "maybe this is an assault, but a judge won't be able to decide what happened". This is the 'reasonable likelihood of conviction' issue. [Note: in this case there IS video]
Finally there is "public interest". So let's go back to your original scenario. Scrum in front of the net, pushing and shoving, leading to a punch to the face with a gloved hand.
A court case can take a lot of time and money. Think of the police time, the lawyers time, and the court's time. Let's say even though Player A hit Player B in the face, that ended matters, and hell, Player A and Player B shook hands at the end of the game. Police/prosecution may well feel that even if technically a crime happened, it's not "in the public interest" to lay a charge".
On the other hand, Player A may have a long history of similar actions, Player B may have been injured, and they sure as hell didn't shake hands. Police/prosecution may well feel that it is "in the public interest" to lay a criminal charge.
Step 4:
I'm just some schmuck lawyer. At the end of the day it depends whether a judge says "Guilty" to a charge of assault or not. They can take a different view of any of the things I said above.
Summary:
The criminal courts can theoretically be involved a lot more in on-ice incidents that almost any hockey player realizes. There are a lot of reasons why they aren't, which I've tried to explain. But to say that the courts can't get involved is an error.
[Disclaimer: I'm a lawyer practicing law in Alberta, Canada, who also loves playing rec hockey. I'm not your lawyer, and this should not be taken as legal advice. Laws in your own local jurisdiction may be different]
