Weighing the ramifications of a barroom brawl

It’s bad enough that I took my family to the West Edmonton Mall last weekend for a brief holiday.

In my defence, Edmonton seemed to be a fair midpoint for my family to have a visit with relatives from Saskatchewan.

Adding to that questionable experience, I found myself facing rather severe provocation in an Edmonton bar.

My wife and I have friends in Edmonton and we decided to go out for the evening. My brother came along, as did my 20 year old step-daughter.

My step-daughter is charismatic and a bit of a looker. Armed with those qualities, she has a knack for attracting guys at a bar. Go figure.

She and my wife don’t get out much together, especially to bars. The two of them ended up striking up a conversation with a young fellow.

This fellow was my step-daughter’s vintage, and bursting at the seams with testosterone.

So there I go and join in on the conversation.

I can’t explain why the young fellow wanted to pick a fight. I think of myself as a relatively unimposing guy.

Sheesh, I was about 50 pounds lighter, far from being in good physical shape and old enough, technically, to be his father.

The thing is, this isn’t the first time someone has tried to pick a fight with me in a bar. Perhaps, I attract that kind of element.

So this guy faces me and starts poking me in the chest, telling me that he has just gotten to know my wife in the “Biblical” sense.

He didn’t use those words, of course. His description was much more crude.

And if ever a string of five little words might cause blood to boil, the ones he used were it.

Fortunately for me, the provocation did not have its desired effect.

I happen to have an exceedingly high anger threshold. I have only one recollection of having lost my temper, and that was as a young person in an altercation with my brother.

I am also a realist when it comes to my own mortality.

I like to think that I can “handle my own” in a fight, but that ability has been tested a very few times and I’m not a gambler.

Finally, I happen to know the law as it relates to this kind of thing and it would have been dead against me if I had taken the bait.

The provocation didn’t stop there. The young fellow’s buddy showed up after my brother subtly made it clear that I had backup.

Buddy said something that stung to the core: “Walk away, grey hair.”

Can you imagine? I’ll end the suspense by telling you that it all ended peacefully when my brother and the young fellow’s backup agreed that they would each take their “guy” away and call it even.

Why would the law have been against me? Can’t a gentleman, provoked to such an extent, pop the provoker in the nose?

The advice I am giving in this posting pertains to civil law, not the criminal law. It pertains to the situation where one or both people involved in a fight get hurt and there is a lawsuit.

Provocation is not a defence in our civil system. There is no amount of provocation that would give the provoked person the right to physically attack.

Had I broken the young fellow’s nose, I would have been civilly responsible to him for that injury, just as if the injury had been caused by me blowing a red light and smashing into his car.

Not only would I be responsible to compensate him for his injury, I would also have opened myself up to the court awarding punitive damages, which amount, essentially, to a civil fine in punishment for my conduct.

While it is not a defence, the law does provide that provocation may be considered by the court in how much money is awarded to the injured victim.

But from the research I have done, the provocation must have caused the attacker to lose his or her self-control and the reduction is relatively small.

Civil law allows physical force only in circumstances where physical force is necessary, such as in self-defence, and then only to the extent necessary.

For example, had I popped the young brute in the nose, he would have been perfectly entitled to strike back in self-defence, but only to the extent necessary to defend himself.

If he knocked me on my keister with his first strike, and I was clearly no longer a threat, he would not have been permitted to carry on attacking me.

Further, if I had turned tail and fled after popping him in the nose, as spineless as that might have been, he would not have been entitled to chase me down and break my nose in retaliation, because that clearly would not have been self-defence.

The advice from the brute’s backup, “Walk away, grey hair,” turned out to be excellent legal advice, and advice which I felt compelled to pass on to you.

Published August 10, 2008 in the Kelowna Capital News

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