ABSTRACT
Perry Kingwell, an amateur hockey player in Saskatchewan, did not prescriptively consent to the foul that put him in the hospital for three days. He did not even see it coming. Kingwell, in an attempt to retrieve the puck from an area behind the net, was facing the boards with his back to the playing ice when Roger Cey, an opposing player, fouled Kingwell from behind by cross-checking him in the neck with his stick. Cey’s blow with the stick smashed KingwelFs face into the boards, resulting in injuries to KingwelFs mouth, nose, and neck, and causing him to be hospitalized for three days with concussion. In addition to receiving a five-minute penalty from the referee, Cey was charged by a prosecutor for the Crown with the crime of ‘assault causing bodily harm’ in violation of section 245.1(l)(b) of the Canadian Penal Code.1 A person ‘assaults’ another person for purposes of section 245.1(l)(b) when he intentionally applies force to another person without the latter’s consent. An assault, in turn, causes ‘bodily harm’ for purposes of section 245.l(l)(b) when it causes ‘any hurt or injury calculated to interfere with [a person’s] health or comfort’.2 In his defense, Cey argued that, while he may have assaulted Kingwell, causing him bodily harm, Kingwell ‘consented’ to the assault for purposes of section 245.1(l)(b).
