Tag Archives: assault

Can Weapons be Introduced into MMA Style Fighting Leagues?

December 1, 2015


By Marshall Putnam – Thompson Rivers University 3L JD Student

Back in April 2015, a strange development occurred in the Russian M-1 Mixed Martial Arts (“MMA”) league. The league, in an effort to test audience reception, introduced medieval style fighting into the MMA arena. Rather than your typical MMA fight where two shirtless combatants pummel each other using punches and kicks, the combatants in this arena wore full body armor equipped with blunted swords and shields. The result: a gladiatorial battle between two knights reminiscent of Game of Thrones.


The audience loved it, spurring the M-1 president to state they would pursue developing it into a full league with separate weight categories, provided they find enough fighters. Although this can be dismissed as a mere publicity stunt, it does pose a serious legal question: can weapons be added into MMA fighting leagues?

In some ways, the addition of weapons seems like a natural development in MMA leagues. After all, martial arts has a rich history of incorporating weapons. For example, the Eskrima style of martial arts is the national sport of the Philippines, and is known for emphasizing weapons-based fighting styles with weapons such as sticks, chained-sticks, knives, and daggers. The obvious issue presented by weapons, even blunted weapons, is the substantially increased likelihood of combatants causing serious bodily harm to each other.

The legality of combatants attacking each other with weapons may appear trivial in some regards. The obvious argument is that the fighters have already consented to engage in a fight, and with or without weapons, there is a risk of either fighter causing bodily harm to the other. The law has already contemplated this possibility, and deemed it legal in the circumstances. From this perspective, the legality itself of engaging in an organized fight has not changed. The only tangible difference is the manner in which combatants are permitted to harm each other; before they were limited to the natural extensions of their body (fists and feet), and now they would be permitted an unnatural extension of their body, i.e. a weapon.

The legal issue arises in the fact that the criminality behind inflicting an assault is increased when a weapon is added. Proof of this claim is found Canada’s Criminal Code, as there is a provision for basic assault (section 266) and another provision altogether for assault with a weapon causing bodily harm (section 267). The difference between the two provisions is that assault with a weapon bears a substantially higher period of incarceration of up to ten years. As it stands in Canada, inflicting an assault using a weapon outside the organized sport arena is treated markedly more severe.

If the MMA arena of sport functions as a shield protecting the combatants from criminal liability when assaulting each other without the use of a weapon, can this shield be extended to protect against criminal liability arising from assault with a weapon? There is evidence supporting the conclusion that it just might.

Consider fencing for instance. Fencing is a recognized sport where the combatants use swords against each other. A fencing sword is modified with the addition of a circular tip to prevent it from inflicting serious bodily harm, and is considerably light-weight. The combatants also wear protective gear, notably around their face, as an added precaution against receiving serious bodily harm. This suggests that combatants may use weapons against each other in an organized fight provided adequate precaution has been taken.

It follows that the legality of introducing weapons into MMA leagues likely hinges on the ability for the coordinators to prevent the likelihood of combatants inflicting and suffering serious bodily harm. In the Russian M-1 league the combatants used heavy-weight blunted swords. In an effort to nullify the increased likelihood of inflicting serious bodily-harm, the fighters wore full armor plating. There is a balancing act of ensuring the increased probability of inflicting serious bodily harm is countered by incorporating equally serious preventative measures.

Ultimately, the legality of introducing weapons into MMA leagues would likely come down to the ability of organizers to convince the courts that the safety precautions taken adequately address the increased ability for combatants to inflict serious bodily harm. Time will tell if MMA leagues opt to introduce weapon-based martial arts, likely following a profit versus risk-assessment. In the end, the fights themselves would surely be as entertaining as any legal battle that may ensue.

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Patience is a virtue (except for the Police!): ZH v. Commissioner of Police for the Metropolis [2012] EWHC 604 (Admin)

March 27, 2012


Case Transcript: http://www.judiciary.gov.uk/media/judgments/2012/zh-v-police-judgment

The case concerned the appropriateness of the police response to an incident at Acton swimming baths on 23rd September 2008. The claimant was a 16yr old pupil with Autism, epilepsy and various learning disabilities who could not communicate by speech and had a severe aversion to being touched.

On the day in question, ZH was attending the swimming baths for a ‘familiarisation’ visit with his carer (Mr Sateesh Badugu), two other school staff and a number of pupils from the school. Although it was not intended that he would swim or be close to the water, ZH broke away from the school group and stood fixated by the edge of the pool. Unable to persuade ZH to return with the group, the group returned to the school to get additional assistance, leaving Mr Badugu in charge of the claimant. The school now accepts that good practice would have been to have had closed sessions without the public present [146], but no criticism was made of the initial visit, nor of Mr Badugu’s actions in dealing with ZH.

The situation became exacerbated when the Pool manager (Christian Harland), having been notified of the situation by the duty lifeguard (Yvette Burton), became frustrated by what he saw as the “ineffectiveness of the carer” [9] trying to entice ZH away from the pool with crisps. In a panic and in an attempt to break the deadlock, Mr Harland rang the police stating:

“We have a disabled male trying to get into the pool….the carer is trying to stop him and he is getting aggressive…he is quite a big lad” [10]

The initial police response to this incident was in the form of two officers in full uniform (PC Hayley Mckelvie & PC Emma Colley). Following the misleading 999 call, both officers perceived an immediate threat to life, despite ZH having been standing calmly by the shallow end of the pool for at least 40mins with several lifeguards nearby [70].

PC McKelvie went to speak to ZH, without speaking to Mr Badugu first, and touched ZH gently on his back. The Court held that this was the catalyst for ZH to jump in the shallow end of the pool [79]. The police officers justified their actions on the basis that:

“no-one was taking control and the police had to do so, and be seen to be doing so” [15, 76 & 77]

While ZH could not swim, the presence of the lifeguards and the fact that they formed a cordon to prevent him from getting to the deep end meant he was in no imminent danger. During this time, more carers and school staff arrived, however despite ZH being in the water for between 5-10mins, the police did not consult the carers for advice, or for help in formulating a plan, and none was offered to the police [21].

Three further police officers (PC Susan Tither, PC Varinder Sooch & PC Stuart Hunter) arrived at the pool and they then proceeded to forcibly remove ZH from the water. As he was lifted out of the water, he was immediately placed forcibly on his back and all five officers applied force to his body to restrain him [25]. Despite the carers repeatedly asking the police not to restrain him in this way as he was autistic and epileptic [26], two police officers shouted loud clear commands to ZH, while leg restraints and two pairs of handcuffs were applied, during which process, ZH lost control of his bowels.

ZH was then carried from the building and placed alone in a cage in the rear of the police van, still in handcuffs and leg restraints and soaking wet. His carer was not allowed to go into the cage with him, but was able to calm him enough to persuade the police to remove the restraints.

The claimant successfully brought three main actions against the police: trespass to the person (assault, battery & false imprisonment), and claims under the Disability Discrimination Act 1995 and the Human Rights Act 1998.


Assault, Battery & False Imprisonment

Although the claimant alleged the unlawful application of force in touching or restraining, the Police argued that their actions were justified under the Mental Capacity Act 2005. While the defendant did not have to have the exact provisions of the Act in mind while they were applying the force they did have to demonstrate that:

  • The claimant lacked capacity  (YES)
  • Any act was in his best interests (NO)
  • There was an imminent danger of severe injury (NO)
  • This belief was genuine (YES)
  • It was a proportionate response to the likelihood and severity of any harm (NO)
  • The response was the least restrictive way of dealing with the incident (NO)
  • The views of the carers were be considered (NO)

The Court held that as there was no emergency at any stage of the incident, the police were not acting in ZH’s best interests. The failure to consult with the carers before approaching ZH, removing him from the pool or restraining him on poolside was also unreasonable [125], unnecessary, and disproportionate [127]. ZH could also have been placed in a warm room within the building rather than the police van. While the Police tried to argue their actions were necessary, this was rejected by the Court as it would circumvent the provisions of the Mental Capacity Act 2005 [44].


Disability Discrimination Act 1995, s.21b

The claim under the Act was essentially that it was unlawful for a public authority to discriminate against a disabled person in carrying out its functions, or in failing to make any adaptations where necessary. In particular the Court held that 8 adaptations could have been made:

  • Identify with carers the best way of communicating
  • Take reasonable steps to address the situation
  • Allow the claimant opportunities to communicate with his carers
  • Allow the claimant an opportunity to move at his own pace
  • Application of force was a last resort and should be at the minimum level necessary
  • Responding to advice from carers as the situation developed
  • Adopt alternative strategies to afford protection for C’s safety
  • Prioritising adoption of calm, controlled and patient approach with the claimant

This duty on the Police to make reasonable adjustments and to inform themselves of the situation was a continuing and non-delegable duty throughout the incident. Indeed, even if the school or its carers had been in breach of a duty to inform the police of ZH’s condition [121], this did not excuse the police from liability under the Act [137].


Human Rights Act 1998 claim

The claimant was successful in claiming under three headings:

  • Art 3 (inhuman / degrading treatment) – taking into account the whole period of restraint
  • Art 5 (right to liberty) – while the use of restraint can be justified, on this occasion, “its use for a significant period of time on an autistic epileptic young man…was in the circumstances hasty, ill-informed and damaging” [145]
  • Art 8 (right to respect for private life) – the police action was not justified as proportionate in the circumstances.



The Court was at pains to note that the Police did not act in any ill-intentioned way towards the claimant, indeed one might argue that the police were placed in a difficult and volatile situation by a misleading call. It is also true that while the claimant was not in imminent danger, he was in a dangerous situation that had the potential to escalate rapidly. Ultimately however, liability arose because the police jumped in at the deep end by failing to consult with the respective carers or use softer, more persuasive methods of control.

The case raises interesting points in relation to the tension between paternalism (in ZH’s best interests even though it might be distressing to be restrained) and libertarianism (ZH should be allowed to do whatever he wants). As with anything, the context is all-important. If the police had been called when ZH had only just moved and become fixated by the water, or if it had been near the deep-end, or in a busier pool where there was more potential for accidental bumping / injury to the public, then the police response may have been more easily justified.

Ironically, the key failing of the police was not in immediately taking control of the situation, but rather in becoming fixated with an aggressive solution to a perceived problem, and demonstrating an inability to communicate with people around them. If officers had deferred to, consulted or sought advice from the carers (even if it was later disregarded as inappropriate), many of the problems could have been avoided. On the other hand, would the police have been criticised for delegating too much of their authorit? The incident also raises the tricky question of how they should evaluate the competency of any ‘expert advice’ they receive during an incident?

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Police recommend assault charges in lacrosse head stomping incident

October 20, 2011


The Canary reported in June 2011 that the Royal Canadian Mounted Police (RCMP) were investigating an incident in which 15 year old Blake Rose was felled by two cross-checks (which if properly administered are permissible) but then had his head stomped on in the waning minutes of a lacrosse game between the Kamloops Rattlers and Kelowna Kodiaks. The RCMP has just recommended to the Crown that a charge of simple assault be laid (click here for Kamloops Daily News article).

At the time of the incident, RCMP spokesman Staff Sgt. Grant Learned correctly noted that the investigation will hinge on whether ‘the nature of that contact [the cross-check and stomp] was so outside the boundaries of acceptable contact that the nature of misconduct was egregious and bordering into that realm of criminality?’

The courts in BC are not unique in their inconsistent approach to adjudicating sports violence. At its core, the courts struggle with how to accommodate the role of violence in sport and the extent to which participants consent to injurious force which is prohibited by the rules but may be permitted within the culture of the game. For example, in the rugby case of R v. TNB (BCPC 0117) in 2009, Honourable Judge S.D. Frame ruled that players consent to violent contact within and certain violent conduct outwith the rules of the game. Cognizant of the playing culture of the game, Frame J. stated that the ‘amalgam of rules includes the legitimate strategy of intimidation of the opposite team by head-butting, eye gouging, elbowing, raking and punching’ and noted that ‘none of these infractions is permitted by the written rules but it is accepted by the unwritten code of conduct at this level of play in the game of rugby.’ The defendant was found not guilty on the grounds that the punch was randomly thrown and not intended to target and hit the injured plaintiff and, as such, fit within rugby’s unwritten but accepted code of conduct.

With respect to J. Frame’s judgment in R v. TNB, if the lacrosse head stomping allegations are proven true, it is hoped that the court will make a bright line distinction that such conduct is criminal – period – irrespective of any fantasies relating to the ‘unwritten code’ or playing culture of the game, and that the proper means of penalizing such behaviour is not by a referee but through the courts.

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‘Pukemon’ baseball fan jailed over vomit attack on off-duty police officer

August 3, 2010



The Canary reported on 31 May 2010 about the strange case of Matthew Clemmens who pled guilty to charges of simple assault, disorderly conduct and harassment for his conduct when he vomited on an off-duty police captain and his 11 year old daughter in the stands during a Philadelphia Phillies baseball game on April 14.

Matthew Clemmens mugshot

After Clemmens’ friend was ejected for spitting, Clemmens was sitting alone behind the victims when he answered his cellphone and allegedly said, ‘I need to do what I need to do. I’m going to get sick’ whereupon he then put his fingers down his throat and puked on Michael Vangelo and his daughter before punching Vangelo four or five times to the face.

Clemmens apologized profusely to Vangelo in court but Common Pleas Court Judge Kevin Dougherty was not impressed. Dougherty J stated that Clemmens had ‘invaded the opportunity to enjoy the American pastime of baseball’ and, as if to impart some judicial baseball wisdom before announcing the sentence said, ‘You struck out.’

Dougherty J sentenced Clemmens to one to three months in jail, two years of probation, 50 hours of community service which he sagely suggested cleaning toilets at Citizens Bank Park, and to pay $315 in restitution – the cost of the Vangelo’s five tickets – which the police captain plans to donate to charity.

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The reach of the law extends over the boards, onto the ice and into the courtroom

May 14, 2010



It has been a while since either Kris or I posted a blog on The Canary. It’s amazing how life (meaning work, family, broken bones in my case, and the National Hockey League playoffs – go Habs!) can interfere with our pseudo-journalistic responsibilities. Regardless, in the upcoming days I shall be updating the site with posts from events in the not-so-distant past. 

We’ll leave it to others closer to those scenes than us to comment on the upheavals in the NHL regarding the on-again / off-again sale of the Phoenix Coyotes, collective bargaining agreement convolutions in the NBA and MLB, American Needle Inc. v. NFL et al., the 6 game suspension of Pittsburgh Steelers’ quarterback Ben Roethisberger by NFL Commissioner Roger Goodell for violations of their Personal Conduct Policy, etc. 

We’ll instead focus on other events which do not capture the spotlight of the media but nevertheless are important and are deserving of our attention.

Accordingly, forthcoming posts will discuss the finding of negligence against a snowboarder in Canada, the death of Nodar Kumaritashvili at the Vancouver 2010 Olympic Winter Games, the British Columbia government’s intention to legislate backcountry snowmobiling, baseball’s shenanigans ranging from the tasering by a police officer of a 17 year old minor who ran onto the field at a Philadelphia Phillies baseball game to a million dollar negligence lawsuit in Ontario which alleges that the absence of a sunscreen caused the plaintiff to be hit in the head by a line drive because he was blinded by the sun, and – of course – hockey.

We have not been silent about hockey violence. Recent posts have commented on the unprecedented cancellation of a KHL game because there were not enough players left to ice a team after 691 penalty minutes were assessed (10 January 2010), Quebec Rempart’s goalie Jonathan Roy’s simple assault guilty plea and absolute discharge (8 October 2009), the acquittal of Robin Gomez of the Victoria Salmon Kings of assault causing bodily harm (7 July 2009), and a piece entitled ‘Taking hockey violence seriously’ (7 February 2010) which noted a 17 year old player was charged with aggravated assault and that two major junior players had been indefinitely suspended for ‘headhunting’ opponents.

In that light, one of those suspended players – Patrice Cormier with the Rouyn-Noranda Huskies of the Quebec Major Junior Hockey League – has just been charged with assault causing bodily harm for the blindside hit on Mikael Tam which left him unconscious and convulsing on the ice.  Cormier’s court appearance is scheduled for July 12.

Also, a 13 year old hockey player recently plead guilty to assault with a weapon after hitting another player with his stick during a tournament in Timmins, Ontario. The assault occurred with about a minute left in the game and with the assailant’s team losing 8-0. There was a stoppage in play and the player was in the process of being ejected from the game for hitting an opposing player from behind when he swerved away from the exit gate and towards the victim thereupon striking him across the back of the helmet with a baseball swing motion. The Crown attorney characterized the attack as deliberate and calculated. The youth received probation and community service. 

It’s too early in the game to say if these events indicate a greater willingness by the courts to prosecute on-ice assaults. There is conflicting case history dating back decades on how the courts have treated hockey violence. But connecting the dots from Marty McSorley of the Boston Bruins being found guilty of assault with a weapon (R. v. McSorley 2000 BCPC 117) with Vancouver Canuck power forward Todd Bertuzzi’s guilty plea to assault causing bodily harm (R. v. Bertuzzi, 2004 BCPC 472) to the events listed above does suggest that courts now are not prepared to use implied consent of the victim to unbridled violence and buffoonery as a blanket defence to such attacks.

In so doing, the courts remind us that league control over the game isn’t absolute and that the reach of the law extends over the boards, onto the ice and into the courtroom.

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Hockey Goalie Pleads Guilty to Assault

October 8, 2009



Chicoutimi, Quebec

Jonathan Roy pleaded guilty to simple assault in a Quebec court and was granted an absolute discharge by the judge today.  The charge stemmed from an incident during a Quebec Major Junior Hockey League playoff game in March 2009 when Quebec Remparts goaltender Jonathan Roy skated the length of the ice to fight an unwilling and defenseless Bobby Nadeau.  Roy’s attack was brutal and barbaric.  He punched Nadeau at least 14 times even while his victim lay supine on the ice. 

Roy’s guilty plea saved the court the task of balancing The Criminal Code of Canada with the playing culture of hockey.  Hockey is renowned for its violence.  What made this case interesting was that whilst hockey players generally consent to some level of violence both within and outwith the rules and accept some risk of injury, Roy’s victim did not agree to fight nor attempt to defend himself.  Incredibly, he was not injured. 

This case is unique insofar as a hockey player pleaded guilty to a charge of criminal assault for a fight in which the victim was not harmed.  A person commits an assault under s.265 of the Criminal Code when he applies force intentionally to another person, directly or indirectly, without the consent of the victim.  This clearly was the case at bar.  It is noteworthy that the sport of hockey is replete with instances where players have been injured in equally egregious circumstances but no charges are filed as it is rationalized as being all part of the game.

It’s impossible to speculate whether or not this case represents a turning point in Canadian courts’ treatment of hockey violence.  One thing for sure though, given that Roy couldn’t hurt Nadeau with a dozen-plus punches, it’s a good thing he’s hung up his skates and taken up a new career in singing.

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Hockey Player Acquitted of Assault

July 7, 2009



Victoria, BC 

Robin Gomez was acquitted of assault causing bodily harm in an incident which arose from a punch thrown during a semi-professional hockey game in 2008.  Hubbard J ruled that players impliedly consent to this type of misconduct and that retaliatory hits are part of the game. 

In several past hockey assault cases, defendant players have successfully pleaded that they were either provoked or acted in self-defence.  These acts of provocation included being struck in the head by an opponent’s stick or cross-checked from behind.  

What is particularly interesting in this case is that Hubbard J appears to regard taunting and trash talking as sufficient cause to incite or provoke an assault condoned by the courts. 

Hockey cases such as these are further complicated in proving the necessary mens rea insofar as Gomez’s role in the game is to intimidate and fight but not necessarily to injure.

Chris Ferraro’s civil suit is still pending.

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Hockey Violence in Canada – Part Deux

June 18, 2009



Victoria, BC

In anticipation of the criminal assault case (blogged below) beginning on June 15, injured hockey player Chris Ferraro unsurprisingly filed a civil suit three days earlier against Robin Gomez and the owner of Gomez’s hockey team. 

In a potpourri of claims, Ferraro is claiming Gomez was negligent and reckless or, in the alternative, intentionally assaulted him.  In addition, Ferraro is claiming that RG Facilities Ltd., owner of the Victoria Salmon Kings hockey team, was vicariously liable for Gomez’s actions or, alternatively, that they were negligent in allowing the team’s coach to encourage Gomez to leave the bench or in failing to take adequate steps to prevent him from leaving the bench.

Ferraro is claiming general damages, punitive and exemplary damages, special damages, and medical costs.

This is going to get interesting.

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Hockey Violence on Trial in Canada

June 16, 2009



Victoria, BC

On the heels of a high school rugby player convicted of manslaughter last month in the 2007 death of Manny Castillo in Ontario, Canada (http://www.cbc.ca/canada/toronto/story/2009/05/28/castillo-guilty.html), the trial began today of a hockey player charged with assault causing bodily harm.

Robin Gomez of the Victoria Salmon Kings surprised an unsuspecting Chris Ferraro with a hard punch to the face during a minor professional hockey league game last year.  Ferraro hit his head on the ice, was concussed and required eight stitches.

It is yet another in a long line of civil and criminal cases plaguing hockey violence in Canada.  We’ll stay on top of this suit.

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Canadian judge acquits rugby player of assault

April 11, 2009

1 Comment


Kamloops, BC


A Canadian judge acquitted of assault a high-school player whose punch broke an opponent rugby player’s nose and cheekbone.  In a bedeviling display of logic, the British Columbia provincial court judge ruled that players consent to violent contact within and certain violent conduct outwith the rules of the game.  Frame J stated that there are certain aggressive actions that are taken in the course of a scrum which appear to be acknowledged by most players including eye gouging, head butting, raking, kneeing, elbowing, kicking and punching and that there is implied consent to a range of injuries from bruises and broken noses to broken necks.  The defendant was exonerated on the grounds that the punch was randomly thrown and not intended to target and hit the injured plaintiff and, as such, fit within rugby’s unwritten but accepted code of conduct.  Whilst there is no suggestion that a civil suit will be launched, a strong case could be argued that the defendant player was guilty in negligence.  Stay tuned ….

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