Assault and Battery on the Hockey Rink
HOCKEY VIOLENCE AND THE LAW
Does the criminal justice system have a role in regulating violence in sports? Most sports involve some form of physical contact. In many cases such physical contact would be considered criminal outside the sporting arena. Slashing a person with a hockey stick in a hockey game is permissible, but the same action outside the game is considered to be assault. Why is there such a distinction?
The distinction lies with the concept of consent. For example, when a hockey player steps into a rink, physical contact is expected. By entering the playing area the player accepts a level of violence that is not accepted outside the rink. When physical contact leads to violence that is beyond the accepted norm, most professional sporting bodies have internal disciplinary mechanisms in place to deal with the incident.
In spite of internal disciplinary mechanisms the law allows the option of imposing civil or criminal liability. A recent example of criminal sanctions imposed on a professional athlete for violence in the playing field is the Marty McSorley incident. Most would agree that McSorley went beyond the accepted norms of allowable violence in hockey. However, many would differ in whether his actions required the attention of the criminal justice system. This paper will focus on this debate. The position taken is that the courts should defer to the disciplinary bodies of the various sport leagues and should limit their involvement to the most egregious cases. The heart of the discussion will focus on Canadian jurisprudence and its application to violence in hockey. This paper begins by outlining the various mechanisms available to leagues to discipline players and continues with a discussion of how the courts have addressed violence in hockey. Other avenues of redress such as civil liability are addressed and conclude with a dialogue of whether criminal and civil liability is the appropriate mechanism to facilitate reform for violence in hockey.
DISCIPLINE BY SPORT GOVERNING BODIES
Sport organizations are private, voluntary associations, as opposed to public authorities or boards exercising statutory powers.  More specifically, “an association is a self governing body whose members are in an ongoing contractual relationship defined by the rules, agreements and customs of the fellowship.”  Through this contractual relationship and the league constitution, the league and its teams acquires the authority to fine, expel or suspend a player who breaks the rules. These rules are embodied in the league constitution, by-laws and collective agreement. Although the collective bargaining agreement takes precedence over the league constitution, these contracts tend to restate the commissioner’s blanket authority to take action based on conduct that he or she determines to be ‘detrimental’ to the game. 
In the National Basketball Association (NBA), the power to discipline players stems from the uniform player contract and the collective bargaining agreement that recognize the disciplinary authority of the teams and the commissioner.  Discipline relates to the imposition of sanction because of wrongdoing or misconduct.  For example, when a player commits a ‘flagrant’ foul, the referee penalizes the player’s team by allowing the opposing team to shoot free throws. At times, the league will decide if further punishment is required reviews the incident.
Similarly, the National Hockey League (NHL) acknowledges the disciplinary authority of the commissioner to order suspensions or impose fines.  Major League Baseball (MLB) adopts a similar approach. The major league agreement formalized the authority of the commissioner to be the final arbiter of disputes between league and clubs and to impose punishments. 
While a player can appeal decisions of a sporting body, the courts have shown a reluctance to interfere with internal operations of sport organizations.  As a general rule, courts avoid intervention in questions involving voluntary associations and the enforcement of their by-laws or disciplinary rules. The assertion is that these bodies espouse a considerable amount of expertise, for which deference should be given. These decisions cannot be completely isolated from judicial review. A court can and will intervene on either procedural or substantive grounds if the governing body denies fairness or if the governing body exceeds its jurisdiction on the matter. 
Although most discipline matters are dealt with via internal procedures, the option of judicial review and criminal liability exists.  This principle was articulated by the court in R v. Maki  which stated that “no sport league, no matter how well organized or self policed it may be, should thereby render the players in the league immune from criminal prosecution.”  For example, if a hockey player is suspended for fighting by the league, the fact that the league disciplined him, cannot exclude the possibility of concurrent criminal liability. This is a somewhat puzzling conclusion considering on the one hand courts are saying we trust the level of expertise sporting bodies have with respect to disciplinary matters and ensuring that penalties are proportional to the relative act. Yet at the same time the imposition of criminal sanctions sends a strong message that in the most extreme instances, some conduct mandates sanctions outside the scope of remedies available to sporting bodies.
While criminal liability cannot be excluded, the position taken in this paper is that the courts should defer to the disciplinary bodies of the sports leagues. One of the traditional justifications for the exclusion of the courts for actions that take place on the playing field is that rough play is simply a part of the game. Sporting events will lose the competitive edge if an athlete is concerned about the possibility of criminal sanctions. Others argue that athletes are role models and therefore their actions should be held to a higher moral standard. In other words, one can argue that as long as these assaults go unpunished by our criminal justice system, it conveys a destructive message to a most receptive audience, children. The imposition of criminal sanctions sends a strong message that this type of behaviour is inappropriate and will not be tolerated. In addition, a viable argument can be made that the criminal law limits all of our actions, at all times, whether we are an athlete or not. The starting point, when we think a player may have stepped over the line, must always be the rules of society, not the rules of the game.
The court in R v. Henderson  attempted to justify the criminal law’s involvement in disciplining athletes by stating “where there are obvious infractions of the criminal law, the authorities are duty bound to take whatever action is necessary to prevent a repetition of such conduct.”  The courts have taken the position that in certain circumstances, public policy mandates criminal liability.
Although the option for criminal liability exits, the courts have stepped in sparingly with respect to violence in hockey. What follows is a brief outline of the various assault provisions available and cases where charges were laid as a result of on ice conduct. A common thread emerging from these cases is the difficulty courts have in determining the scope of implied consent. We begin with a definition of violence.
Violence refers to any intentional and unjustified use of intense physical force that is likely to cause personal injury, damage or death; in brief violence, means unlawful physical aggression.  Violent incidents that occur outside the playing field do not raise separate issues with respect to the application of the criminal law; as a result we will limit our discussion to violent incidents that occur between players on the playing field. Various provisions in the Criminal Code are available to sanction players. The most common is the assault provisions. We will focus on Canadian jurisprudence, recognizing that the principles embodied in Canadian law may be consistent with other jurisdictions.
Section 265 of the Criminal Code  states; “(1) a person commits assault when a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; b) he attempts or threatens, by an act or gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.”
To secure a conviction the burden remains with the Crown to prove each element of the offence, including the absence of consent. Consent may be actual or implied,  for our purposes we will assume that there has been no actual consent.
An accused’s honest belief in consent is a defence available to an accused. This is codified in subsection 265(4) of the Criminal Code which states “where an accused alleges that he believed that the complainant consented to the conduct that is the subject matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused belief, to consider the presence or absence of reasonable grounds for that belief.” .
In order to determine criminal liability, the difficult issue the courts must decide is what is the scope of the conduct each player consents to when they step on the ice. Other issues, such as identity are rarely an issue in sports violence cases. An assortment of case law has developed to determine the scope of a victim’s consent. One of the leading cases on point is R v. Jobidon.  Jobidon is a case involving a consensual fistfight outside a hotel that resulted in the death of one man and a subsequent charge of manslaughter. The accused was later convicted. With its decision the Supreme Court of Canada placed specific limits on the effects of a victim’s consent. The majority of the Court agreed that “the limitation demanded by s. 265 as it applies in the circumstances of this appeal is one which vitiates consent between adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl.”  The legal outcome of the Jobidon is that the consent of the opponent is no defence when an adult intentionally inflicts bodily harm during a brawl or fistfight. Public policy mandates that there are limitations to when harmful conduct to which one may validly consent to would bar a conviction for assault.  The Criminal Code must be construed subject to the same limitations imposed by the common law. Under the common law, the Crown does not have to prove the absence of consent in certain situations. The rational being that it is unlawful to intentionally apply force that is so severe that it does or could inflict bodily harm or death. In these situations, consent is immaterial. 
It is important to point out that although the case did not stem from an assault on the ‘playing field’, the court recognized the distinction and possible application of the defence in these circumstances. In particular, The Supreme Court noted that “the policy of the common law will not affect the validity or effectiveness of freely given consent to participate in rough sporting activities, as long as the intentional applications of force to which one consents are within the customary norms and rules of the game. Unlike fist fight, sporting activities and game usually have significant social value; they are worthwhile.”  A liberal interpretation of the Court’s position would reveal that violence in sporting events is acceptable and justified because of the social weight attached to such activities. On the surface, an obvious problem with the Court’s rationale is the inherent ambiguity. It is unclear what limits would be placed on fistfights that occur during sporting events. Whether or not they would be held to the same standard is yet to be resolved. At the same time, the decision in Jobidon has been criticized on various grounds. Why did the court incorporate a “common law” concept into the clear statutory language of section 265 of the criminal code? It states that the offence of assault is limited to situations where force is applied to another without consent. In effect, The Supreme Court has created a new criminal offence of assault.
The principles in Jobidon were held to be applicable in the context of a sporting event. The Saskatchewan Court of Appeal in R. v. Cey  is consistent with the Jobidon case, and was approved by The Supreme Court of Canada in Jobidon. This case remains the leading authority on the issue and has been followed in R v. Ciccarelli  and most recently in R v. McSorley.  Cey provides a general framework for determining the scope of implied consent. In Cey a player, during an amateur hockey game, injured an opponent’s face and mouth by crosschecking him from behind into the boards. The question before the court in Cey was criminal liability with respect to assaults between participants during a hockey game. The trial judge acquitted Cey on a charge of assault causing bodily harm. On appeal, the Court held that the trial judge erred by failing to consider “whether there was an express or implied consent to this type of contact and whether the contact was of such a nature that in any event no true consent could be given.”  The matter that had to be determined was first, if the there was an express or implied consent to the act. Second, whether cross checking the victim into the boards was so violent and dangerous that it was excluded from implied consent. 
The standard applied by the Court in answering the second question was whether the conduct carried with it “such a high risk of injury and such a distinct probability of serious harm as to be beyond what, in fact, the players commonly consent to, or what, in law they are capable of consenting to.”  The trial judge failed to address this question. The difficulty lies in asking the courts to define limits to when consent can bar a conviction. This is a common law proposition not specifically addressed in the Criminal Code. Yet, the Court in Jobidon specifically read in the common law limitations of consent, therefore the trial judge was bound to consider this question.
In addressing the first question, Gerwing J.A. considered the previous case law and summed it up as follows “it is clear that in agreeing to play the game a hockey player consents to some form of intentional bodily contact and to the risk of injury there from. Those forms sanctioned by the rules are the clearest example. Other forms denounced by the rules, that fall within the accepted standards by which the game is played, may also come within the scope of consent. It is equally clear that there are some actions, that are so violent it would be perverse to find that anyone taking part in a sporting activity had impliedly consented to subject himself to them.”  In other words, most of the case law recognizes that players agree to risk of blows, provided that they are unintentional, instinctive or reasonable incidental to the game. 
The majority in Cey attempted to expand on the previous case law by providing an objective framework to determine what is the scope of implied consent. Specifically, the Court noted that the scope of implied consent is a matter of degree to be determined by objective criteria that consider factors such as; the nature of the game played; nature of particular act or acts and their surrounding circumstances; the degree of force employed; the degree of risk of injury; and the state of mind of the accused. 
The court then turned their attention to the elements required to secure an assault conviction. Namely, that the accused applied force intentionally, that the force was applied directly or indirectly and that the victim did not consent to the intentional application of force.  The Court of Appeal held that the trial judge was in error by failing to address the issue of implied consent and the limits placed on consent. A new trial was ordered.
The first time an NHL player was taken to court was in 1970. After a stick swinging duel between Maki and Green at a September 1969 exhibition game. Green’s skull was fractured, Maki was not injured. Maki was charged with assault causing bodily harm. The accused argued that he had acted in self-defence, in the alternative; he relied on the presumption of consent of athletes to be attacked during a hockey game.  Based on the facts of the case, the accused was found to have acted in self-defence and was acquitted of the charge. Notwithstanding the disposition of the case, the trial judge addressed the issue of consent. More specifically, he held that had the accused not succeeded in arguing self-defence, he would have been equally unsuccessful in arguing consent. The trial judge noted that all players “ when they step onto a playing field or ice surface, assume certain risks and hazards of the sport, and in most cases the defence of consent set out in s. 230 of the Criminal Code would be applicable. But as stated above there is a question of degree involved, and no athlete should be presumed to accept malicious, unprovoked or overly violent attack.”  As an aside, it is interesting to note, that the victim in this case, did not testify, nor did he agree to the imposition of criminal sanctions. This perhaps adds greater weight to the position that the courts should not be involved.
In 1975, Dave Forbes of Boston, went to trial accused of using excessive force against Henry Bocha of Minnesota.  The trial ended in a hung jury, the prosecution did not seek a retrial.
In 1988, Dino Ciccarelli, a professional hockey player was sentenced to one day in jail and fined $1,000 for striking Luke Richardson several times in the head with his stick. The main issue before the court was the scope of consent and the defence of honest belief under section 264(4) of the Criminal Code. The incident did not result in bodily harm, thus it would be difficult to argue the application of the public policy limitations raised in Jobidon. On the question of implied consent, the Court referred to the objective standard articulated in Cey. The trial judge first considered the nature of the game. He concluded that “striking the opponent’s head with a hockey stick, whether blade or butt, was not a reasonable practice and fell outside the ambit of the implied consent.”  In considering the nature of the blows, the judge noted that they had the capacity to injure, and found that Ciccarelli was overreacting.  In assessing these factors, the trial judge concluded that the acts of Ciccarelli were beyond the implied consent of the players of the game.
The next matter before the court was the to determine the applicability of the defence of an honest belief to consent. The Court of Appeal held that the Crown must prove beyond a reasonable doubt that the victim did not honestly believe that the victim expressly or impliedly consented.  Yet, this defence is only available to the accused once he puts forth some evidence supporting the proposition. The Court of Appeal held that in this case, no evidence was adduced to satisfy this burden on the accused. For these reasons, the Court of Appeal upheld the trial judges ruling. Dino Ciccarelli was convicted of assault.
The most recent example of criminal prosecution in the context of a sporting event is the Marty McSorley incident. One does not have to be a keen hockey observer to be familiar with the blow McSorley gave Donald Brashear near the end of a nationally televised NHL hockey game. With less than two minutes left in the game, McSorley slashed Brasher on the head with his stick. Brashear suffered a grade three concussion and could not continue with physical activity for another month.  The NHL was quick to condone the actions and handed down the most severe suspension ever by the League. McSorley was suspended for the remainder of the season, twenty-three games and had to forfeit approximately $72,000 in salary. In the end, his suspension lasted for one year. 
Notwithstanding the punishment already received by McSorley, concurrent criminal liability was not excluded. The court in R. v. Watson  specifically addressed the issue of concurrent liability and justified the criminal law’s role in disciplining conduct that has already been disciplined. The judge stated that “to engage in a game of hockey is not to enter a forum for which criminal law does not extend, to hold otherwise would be to create the hockey arena as a sanctuary for unbridled violence to which the law of parliament and the Queen could not apply.” 
McSorley was charged with assault with a weapon. An attempt was made by the trial judge to separate the trial of McSorley from being a trial about violence in hockey; the only concern according to the judge was if McSorley was guilty of the specific charge. This attempt in my view clearly failed. McSorley is a professional hockey player, he is held to a different standard than the average “Joe” on the street. Hockey is a violent and aggressive sport; this is precisely why teams value the attributes of a player like McSorley. In order to determine the guilt or innocence of McSorley the court cannot ignore the larger issue of what level of violence in hockey is acceptable.
The primary issue before the court was whether the slash by McSorley although in violation of the written rules, was nevertheless within the customary norms and rules of the game.  The court noted that it is a “legitimate game strategy to slash another player, but if done with sufficient force, and if the referee sees it”  the team is given a penalty. Several witnesses testified that the blow to the head was not permitted in either the written rules or the unwritten code.  Further, the trial judge had to ask whether in law the risk was too great to be consented to by a player.  To do so, the judge applied the objective test put forth in Jobidon and Cey. Specifically, the judge had to decide whether the danger was too severe to be consented to by players. In these instances, consent will be overridden by public policy.  Having assessed the evidence, the trial judge held that the slash was in fact too dangerous for the player to consent to.
The next issue before the court was the determination if McSorley was aware of the risk. To do so, the court must ask if the slash was deliberate. In other words, did he intend to hit the victim in the head, any doubt to this intention would have resulted in an acquittal. The Court held that McSorley’s actions were deliberate. His actions clearly crossed the line of what is acceptable in hockey. McSorley was found guilty of assault and was granted a conditional discharge.
McSorley’s conviction marked the first time an NHL player has been convicted for an one ice hit since the 1988 case of Dino Ciccarelli. Certainly, McSorley’s hit was an ugly, vicious act deserving of a severe suspension. Yet, whether it was deserving of criminal liability is still up for debate. The reluctance of the court to intervene was apparent in the judgment, the judge noted how much McSorley had already suffered.  In addition, he made it explicitly clear that it was not his decision to bring this matter before the Court.  In response to the question why the courts are involved, the trial judge made a point of saying that this was a decision made by Crown counsel, a decision that the judiciary played no role.
It is helpful to question if the courts are in the best position to determine the scope of a player’s implied consent. Judges are not familiar with the mentality of athletes, nor are they in a position to know what the ‘unspoken’ rules of conduct are in a particular sport. True, judges are routinely asked to adjudicate matters for which they have little, if any direct knowledge, yet the distinction here is that an alternative path is available. That is to say, the disciplinary body of the various sport leagues. These bodies espouse a considerable amount of expertise and are in a far better position to determine the scope of implied consent according to the objective criteria set forth by the court in Cey and to discipline their members accordingly. It is correct to argue that these sporting bodies are not better equipped to determine questions of law, yet at the same time, this view needs to be balanced with the reality that decisions are routinely made in our legal system not to prosecute in the interest of cost and efficiency. Part of the appeal of these bodies is their ability to resolve matters quickly, without imposing costs on taxpayers.
It is important to clarify, that in the most extreme cases such deference should not be granted, for example if an athlete uses a knife or gun to injure a player. These instances would clearly cross the line of acceptable conduct. In addition, incidents which occur after play have stopped or where one party moves from the bench or elsewhere on the ice to deliver a blow would mark a clearer example of being beyond the area of consent.  What are at issue here are the incidents that fall within the grey area of the debate. A recent example of this is the incident involving Marty McSorley and Donald Brashear.
Given the objectives of the criminal law, it is obligatory to ask if criminal prosecutions are really necessary? What was, if anything gained from the prosecution of Marty McSorley? Has the level of violence in hockey been reduced? Will NHL players adjust their tempers accordingly? The reality is that the McSorley decision had little, if any impact on the level of violence in hockey. Since he was charged, many more suspensions have been handed out, yet not one has resulted in criminal charges. Each time the NHL disciplines a player, is that not another way of the league saying that the player crossed the line of acceptable conduct? If this is the case, then why are criminal charges not laid whenever a player is suspended? The answer is simple; it is inconceivable to think that every time a player hits another player, criminal charges would be laid. From a practical standpoint, this would be impossible. It is for this precise reason, why disciplinary matters are left to the league. Why the McSorley incident is any different is still unclear. In the end, the only one who was a true victim in the McSorley incident was the Vancouver taxpayer.
The question remains how does the judiciary decide what is the scope of conduct that an athlete consents to? The framework provided by the Court in Cey has noticeable limitations. For instance, when it comes to trying to define criminal behaviour in a sport that has consensual physical confrontation, one can see how difficult it would be to draw clear boundaries. The scope of implied consent is loosely defined and dependent on the degree of play. Further, although an attempt was made to provide an objective framework, it provides little guidance in cases were two players are both involved in a fight.
Alternative paths offered to determine the scope of conduct an athlete consents to include, the rules of the game theory and customs of the game. The former is based on the position that an infraction of the rules would be consented to because it is reasonable to believe that every rule will be broken at some time. For example, an injury sustained during a hockey fight would not be actionable because there is a specific rule that prohibits fighting. An apparent limitation to this theory is that ‘fighting’ is a broad term, often the issue of criminal liability turns on the degree or severity of violence. This might explain why despite the amount of suspensions in sports, very few criminal charges are laid. An example of the latter theory would be a pitcher throwing at a batter in baseball, there is no specific rule prohibiting this, yet it is a part of the custom of the game, as a result would be consented to by those who agree to play baseball. 
NHL PLAYERS ASSOCIATION POSITION
The NHL Players Association has taken the position that criminal liability should only attach to actions that were intentional and blatant and involved the use of a player’s equipment or blow by the player that inflicted permanent physical or mental damage, without the consent of the other player or players involved. This means a fight between two players could be considered an attempt to inflict permanent damage but not if the other player involved is also participating in the fight.  As previously noted, the courts have failed to clearly articulate the standard for incidents were both players are fighting. At any rate, the players association has taken the position that only in the most extreme cases should criminal prosecution be pursued. As a rule, these incidents should be reviewed by both the NHL and Players Association to determine if the incident was intentional and blatant and could cause permanent physical and/or mental damage.  Further, the league chief legal officer, Bill Daley, equally expressed his disapproval of the courts’ involvement.  With respect to the McSorley incident, he noted that the league had dealt with the matter quickly, decisively and appropriately. In his mind, no further action is warranted.
MIKE TYSON: SHOULD CRIMINAL CHARGES HAVE BEEN LAID?
An attempt to reconcile the holding in McSorley with the absence of criminal liability in the infamous Mike Tyson biting of the ear incident is quite difficult. The incident in question took place June 28th 1997. Tyson bit the ear of Evander Holyfield during a professional boxing match. Evander Holyfield suffered immense pain and required surgery to repair his ear. Both McSorley and Tyson were severely sanctioned by the disciplinary bodies of their respective sports. Mike Tyson was disqualified from the fight, fined, and had his boxing licence suspended. The incident even prompted a new bill in Nevada that would allow the state to seize the entire purse of a boxer who takes any action to disqualify himself in a bout or exhibits detrimental conduct. In the case of Mike Tyson, the effect of such a bill could cost him upwards of thirty million dollars. 
Although the incidents took place in different jurisdictions, it would be somewhat naive to assume this could reconcile the intervention of the courts in one case, but not the other. Likewise, both incidents were the subject of public scrutiny and a heightened amount of media attention. Both Tyson and McSorley’s were vilified in the media and were the subject of enormous public distaste. As well, it is not as if the law does not consider conduct akin to what Tyson did deserving of sanctions, in fact, a similar act committed outside the rink, in Washington D.C. for example, could result in a maximum of twenty years in prison.  Therefore, it is safe to suggest that the absence of criminal charges against Mike Tyson were due to the idea that his actions were within the scope consented to. At the same time, one can conclude that the actions of McSorley’s were outside the scope of what is accepted in hockey. Given this, could a viable argument not be made that anyone entering a professional boxing match would not have consented to having his or her ear bitten off? Moreover, according to Canadian jurisprudence , there are some acts that are so violent where consent cannot act as a bar to an assault conviction. Taking into consideration that the incident was outside the reach of Canadian law, it is still difficult to resolve the fact that someone can validly consent to having a part of his or her body bitten. Perhaps, the prosecutor in the state were the ‘bite’ took place, thought that the sanctions imposed by the Nevada Athletic Commission were sufficient. Likewise, one can argue that pursuing criminal prosecution would advance nothing. The pubic knew his actions were wrong.
The absence of criminal charges display how arbitrary and subjective the decision to lay criminal charges is. A feasible argument can be made that every deliberate hit with intent to injury falls into the legal definition of assault. If this is the case, then many more criminal charges should be laid with respect to on ice conduct. The fact that they are not reinforces the arbitrariness of the decision. It is unfair for a player to step into a rink not knowing what conduct would cross the line. The league and its players know that professional sports are conducted in line with a set of ground rules different from those that govern everyday life. What needs to be asked is if McSorley was attacking Brashear the man or the player? Without doubt, McSorley’s anger was directed at Brashear, the player, due to the circumstances of the game. He is not a threat to the people of Vancouver or any other jurisdiction for that matter. The only people he is a threat to are his colleagues in the NHL, the same people who have accepted the level of violence and shunned the court’s involvement. Not surprisingly, both Donald Brashear and his coach agreed that the NHL, not the courts, should discipline McSorley. 
There have been only a few isolated instances of criminal prosecutions, more typically the decision is made not to prosecute such as in the case of Sprewell and Tyson. Latrell Sprewell, a professional basketball player choked his coach during the teams practice because he did not like the way the coach was talking to him. The league suspended Sprewell. No criminal charges were laid.  The fact is that Sprewell had no defence, he would not be successful in arguing that he was provoked, in almost every jurisdiction words are inadequate to provoke an assault. Again, if done in a bar, Sprewell would have spent the night in jail. I bring up this point, not to suggest that athletes are given preferential treatment, this is not at issue here. What I hope to highlight is that because athletes are seen as being part of their own elite society, they should be disciplined by that same society for which they are a part of. Being shunned by the exact institution that you are a member can and will have a far greater impact on one, than criminal prosecution would.
The reality is that even when athletes are held criminally responsible, their sentences are quite lenient compared to the severe sanctions imposed by the league. For instance, McSorley, sentence was a conditional discharge, what many would equate with a slap on the wrist. In light of this, consider if the punishment he received from the league; a year suspension and $72,000 loss in salary, in addition to public disgrace is not a harsher penalty and serves as a greater deterrent. To take it a step further, one can argue that the discipline he received from the league was much more severe than a first time offender would had gotten who committed the same act on the street. It is difficult to argue that the objectives of the criminal law, namely, general and specific deterrence would be achieved with greater success through the criminal justice system as apposed to the disciplinary body of sports. Notwithstanding the most extreme cases, the reality is that society accepts this violence, if it did not it would not pay to see the games and cheer when opposing players violently confront one another. Criminal prosecution serves little purpose, the least of which is deterrence. A good example of this is the McSorley incident.
I have taken the position that the criminal law should limit its role in the context of violence in sporting events; one possible substitute is tort law. The law of torts may offer a viable alternative and an effective legal mechanism for social control of excessive violence in sporting events. An exhaustive analysis of the substantive issues with respect to civil liability will not be undertaken. This was done in the criminal context, to do so now would be somewhat repetitive. The main purpose here is to highlight an alternative mechanism. However, I do point out the different burden of proof and that a conviction in a criminal setting could result in the loss of one’s liberty. On the surface, there are a number of factors that appear to favour dealing with the violence in sports in a civil context, as opposed to a criminal one. As a starting point an action in tort is initiated by the parties themselves, the state has no role in bringing forth a civil action. It is the victim who decides if they wish to pursue the action. Additionally, the costs of a civil action are placed on the parties. The prohibitive cost of litigation, the most common limitation of tort law, is less of an issue with respect to professional athletes.
The prime objective of a civil action is to provide compensation to the victim based on the idea that the defendant was at fault. Compensation is typically an award for damages with the objective of putting the victim in the same position had the tort not occurred. This of course is subject to variations, but Canadian courts have shown a general reluctance in awarding excessive punitive damages. In cases, where the defendant’s conduct is found to be egregiously improper the courts will award exemplary damages. 
In general, tort actions involving personal bodily injury fall into two broad categories; negligence and intentional torts. For our purposes we will focus on the latter. More specifically, intentional torts can be classified as either battery or assault. However, in Canada the distinction between assault and battery has been blurred and when one speaks of assault it may include battery.  A simple definition of battery is intentionally or negligently causing offensive contact with the body of another person through the direct application of force.  The burden of proof remains on the plaintiff to prove on a balance of probabilities that the defendant caused offensive contact with him or her body through the direct application of force, if this is established the onus shifts to the defendant to exonerate him/herself if s/he can.  Additionally, it does not matter why a specific defendant wanted to bring about a particular consequence, all that is at issue, is if there was physical contact outside of the bounds of what is generally accepted as part of everyday social interaction.
The tort of assault is when one directly creates an apprehension of imminent harmful or offensive contact. Words alone cannot constitute an assault; there must be some additional threatening act. For example, if an individual takes a ball and throws it at someone’s head but misses, this would still constitute an assault. The defence of consent is available in both assault and battery cases, and if established, may bar an award of damages. Traditionally, liability has been limited to assaults that exceed the implied consent in the game, however recent cases indicate that it may be possible to invoke negligence principles with respect to assaults and battery.  Similar to criminal prosecutions, in civil actions consent may be either express or implied. It is generally accepted that consent to acts extends to the normal risks inherent in that act. For example, a hockey player would consent to being body checked in a full contact league.
As easy as the application of the principle may appear to be, in some cases it is extremely difficult to draw clear boundaries. Wright v. McLean  was an action brought as a result of an incident involving four boys playing on a mound of dirt near a house. A fight occurred when another boy rode by on his bicycle. In his judgement dismissing the action, the judge stated that in “a sport where there is no malice, no anger and no mutual ill will, that combatants consent to take the ordinary risks, of the sport in which they are engaged.”  Put another way, the judge concluded that the plaintiff had consented to the inherent risks in fighting. At the same time, he left the door open for liability to attach to incidents that are motivated by anger and spite.
Courts have attempted to define the limits of implied consent by distinguishing the ordinary and expected checks, tackles and bodily contact from actions that are deliberately and unnecessarily harmful.  The leading case on point is Agar v. Canning.  The defendant struck the plaintiff in the face with his stick during a hockey game. Prior to this case, there had not been a reported case involving a claim for injuries suffered during a hockey game. Bastin, J. speaking for the court acknowledged that a person engaging in the sport must assume to accept the risk of accidental harm.  He further stated that it would be “inconsistent with this implied consent to impose a duty on a player to take care for the safety of other players corresponding to the duty which, in the normal situation, give rise to a claim of negligence.”  The conduct of a player in a game should be judged according to the appropriate standards of the game. The court recognized the difficulty in defining the specific line that would signal a departure from the standards of the game. An attempt was made to resolve the ambiguity inherent in this determination. More specifically the Court offered the following framework for guidance, “injuries inflicted in circumstances which show a definite resolve to cause serious injury to another, even when there is provocation and in the heat of the game, should not fall within the scope of implied consent.”  Based on the facts of the case, the defendant was found liable for assault.
The United States judiciary has had to grapple with similar issues involving violence in sporting events. Initially the view was that injuries during a game should be outside the framework of the law.  This denial was justified because acts of violence were foreseeable and therefore consented to. The court in Hackbart v.Cincinnati Bengel Inc.  initially denied redress in a civil action, saying ‘courts are ill suited to decide different social questions and to determine what is an acceptable level of conduct on what is much like a battlefield. “ The Court of Appeal reversed the decision saying that in certain situations, an athlete will have a viable claim. The Court’s preliminary reasoning highlight the difficulty courts are faced with when asked to adjudicate these matters. The question remains, is an objective standard really possible?
Subsequent cases have revealed a willingness of both Canadian and American courts to award damages as a result of injuries from acts of violence in a sporting event.  However, it is still rare for players to sue in civil court, this could be linked to an unspoken code among athletes. In addition, if the defendant is insured, wealthy or otherwise able to pass on the cost of liability, the impact of such an action may be limited. At the same time, the victim would be compensated and being held liable civilly may hinder an athlete’s marketability and endorsement opportunities.
Thus far, three mechanisms to deal with violence in sports have been highlighted: disciplinary bodies of the league, the criminal justice system and the civil justice system. The question remains, which system is the most appropriate and effective place to deal with violence in hockey? Is the legal system the appropriate place to facilitate reform for violence in hockey? The logical response to such a question is that the legal system’s role is to punish conduct that is criminal. If an on ice incident satisfies the definition of a criminal offence, then the debate seems immaterial. The role of the criminal law is to condemn behaviour that society deems unacceptable. If the objective of the criminal law is to send a strong message to society and the accused that his or her actions are intolerable, then why do sentences continue to lack the teeth necessary to achieve this? The bottom line is that athletes, just like those in the military should be subject to different rules of conduct. Even if a player crosses over the line of what is acceptable conduct, the place to deal with this is within the league. It is extremely difficult to clearly define the scope of implied consent and establish an objective framework to determine when a player’s conduct mandates criminal liability. It is for this reason that the league disciplines almost all violent incidents. If a player seeks monetary compensation the option of civil liability still exists.
If the league takes the position that it truly wishes to curb the level of violence in hockey, then it has sufficient disciplinary power to make sweeping changes. The fact that suspensions handed down are usually minimal does not preclude the authority of the league. The reality might be that the league does not wish to temper the current level of violence. If this is the case, then it could also be true that players who step into the rink are consenting to this level of violence. Hockey is a violent sport, it is extremely difficult to clearly define and set boundaries for conduct that would be criminal. It is for this reason that the courts should defer to the disciplinary body of the NHL.
UPDATE MARCH 2005
Since this article was first published there has been another incident of on ice violence during an NHL game that resulted in criminal charges being laid against an NHL player. In December, 2004 Todd Bertuzzi plead guilty in a Vancouver court to assault causing bodily harm. The assault took place against a fellow NHL player, Steve Moore, during an NHL game earlier in the year. Bertuzzi was granted a conditional discharge, put on probation and ordered to perform 80 hours of community service. Bertuzzi also received a suspension from the NHL. Taking into consideration the nature of the assault and the serious injuries sustained by the victim, Bertuzzi’s sentence has been considered by many to be a ‘slap on the wrist’.
Many of the issues addressed in this article are equally applicable to the issues that were raised in the Bertuzzi case. However, unlike in the McSorley case, the victim of this assault, Steve Moore, filed a civil suit against Bertuzzi. As a result of the injuries inflicted on Moore in the assault, Moore’s playing career in the NHL remains in serious doubt. The civil suit is still pending.
So here we have another NHL player charged with a criminal offence as a result of an on ice incident. This begs the question, what, if anything, was learned as a result of the McSorley incident? Or more importantly, why were the lessons learned ignored?
-  See Ch 2, section A, 1. Cf. R. v. Football Association, ex p. Football League Ltd.,  2 All E.R. 833 (Q.B.D.)
-  Lakeside Colony of Hutterian Brethren v. Hofer,  3 S.C.R. 165
-  Matthew B. Pachamn, “Limits of the Discretionary power of professional sports commissioners: a historical and legal analysis of issues raised by the Pete Rose Controversy” 76 Virginia Law Review 1409 (1990)
-  See UPC of NBA, cl. 4 (club rules), cl. 5(player contracts), cl. 15 ( league power to fine) : CBA of NBA, art 23; exhibit “standard club rules”
-  See John Barnes, Sports and the law in Canada, 3rd edition. (Toronto: Buttersworth, 1996) at 251.
-  See NHL by-laws section 17. 3(a) (fines, suspensions and expulsions)
-  Major League Agreement art. I. (1988)
-  Kerraghan v. Softball Saskatewan (1987) 42 DLR (4th) 364.
-  Ibid at 320.
-  R. v. Maki (1970) 1 C.C.C. (2d) 333 [hereinafter Maki]
-  Ibid.
-  Ibid at 336.
-  R v. Henderson  5 W.W.R. 119 [hereinafter Henderson]
-  Ibid at 127.
-  Supra note 5 at 251.
-  Criminal Code, R.S.C. 1985, c. C-46
-  R v. St. Crooix (1979) 47 C.C.C. (2d) 122.
-  Supra note 16.
-  R. v. Jobidon  2 S.C.R. 714. [hereinafter Jobidon]
-  Ibid at para 125.
-  Ibid at para 12.
-  Ibid at para 156.
-  Ibid at para 126.
-  R v. Cey  5 W.W.R 169,  S.J. No. 264. [hereinafter Cey]
-  R. v. Ciccarelli  O.J. No. 2547. [hereinafter Ciccarelli]
-  R. v. McSorley  B.C.J. No. 264.[hereinafter McSorley]
-  Supra note 24 at 493.
-  Ibid at 491.
-  Ibid at 480.
-  Ibid at 488.
-  R. v. Leyte (1973) 13 C.C.C. (2d) 458.
-  Supra note 24 at 490.
-  Supra note 16.
-  Supra note 10.
-  Ibid at 134.
-  Randi Golberg “Bruins McSorely faces charges outside the Arena”, online: World Nation http://www.uvsc.edu/netxnews (last modified March 2000)
-  Supra note 25 at 128.
-  Ibid at 125.
-  Ibid at 128.
-  Supra note 26.
-  Canadian Press “NHL Release on the Marty McSorley Suspension” The Toronto Sun, Toronto, February 23 2000.
-  R v. Watson (1975) 26 C.C.C. (2d) 150.
-  Ibid at 156.
-  Supra note 26 at para 25.
-  Ibid at para 21.
-  Ibid at para 61.
-  See note 9 and 24.
-  Supra note 9.
-  Supra note 26 at para 3.
-  Ibid at para 8.
-  R. v. Gray (1981), 24 C.R. (3d) 108
-  See Michael A Rowe “Necessary or Unnecessary Roughness: The Legal Ramifications of Violence in Professional Sports” (1999) online: www. Finew.com (last modified 6 October 2000)
-  Judy Owen “Charges open can of worms” Winnipeg Sun, March 9 2000. See also Online: www.nhlpa.com
-  Ibid.
-  Ibid.
-  Dean Juipe “Tyson Apologetic, humble” (2000), online: The Las Vegas Sun (http://www.lasvegas sun.com/sports/boxing) (last modified 13 September 2000)
-  Ibid.
-  See Supra note 9.
-  The Associated Press “NHL Player Unhappy with Judges Ruling” (2000), online: www.espn.go.com/news/2000/1006 (last modified 6 October 2000)
-  Dave D’Alessandor “Despite Choking his Coach, Sprewell will be in demand”, online: The Sporting News. http://www.thesportingnews.com/basketball (last modified 30 November 1998)
-  See Karpow v. Shave  2 W.W.R. 159 (Atla S.C.)
-  Gambriell v. Caparelli (1974), 7 O.R. (2d) 205, 54 D.L.R. (3d) 661.
-  Solomon, Feldthusen, Kostel, Law of Torts, 4th ed. (Toronto: Carswell, 1996)
-  Ibid at 53.
-  See Williams v. Froese (1985), 36 Sask. R 275 (Q.B).
-  Wright v. Mclean (1956), 7 D.L.R. (2d) 253 (B.C.S.C.)
-  Ibid.
-  Supra note 5 at 272.
-  Agar v. Canning, (1965), 54 W.W.R 302 (Man. Q.B.) affd. (1966), 55 W.W.R. 384 (Man. C.A.)
-  Ibid at 101.
-  Ibid at 120.
-  Ibid at 134.
-  Hackbart v Cincinnati Bengal Inc. 601 F2d 516 (19th Cic 1979)
-  Ibid.
-  Henry Boach was awarded $3.5 million after a hit by Dave Forbes. Dennis Polonnich received $850,000 after he sued W. Parliament for a 1978 incident.
List of Cases
- Agar v. Canning, (1965), 54 W.W.R 302 (Man. Q.B.)
- R. v. Cey  5 W.W.R. 169
- R. v. Ciccarelli  O.J. No. 2547
- Gambriell v. Caparelli (1974), 7 O.R. (2d) 205
- R . v. Gray (1981), 24 C.R. (3d)108
- Hackbart v. Cincinnati Bengal Inc. 601 F2d 516 (19th Cic 1979)
- R. v. Henderson  5 W.W.R. 119
- R. v. Jobidon  2 S.C.R. 714
- Karpow v. Shave  2 W.W.R. 159
- Kerraghan v. Softball Saskatchewan (1987) 42 D.L.R. (4th)364
- Lakeside Colony of Hutterian Brethren v. Hofer,  3 S.C.R.
- R. v. Leyte (1973) 13 C.C.C (2d) 458
- R. v. Maki (1970) 1 C.C.C. (2d) 333
- R. v. McSorley  B.C.J. No. 264
- R. v. St. Crooix (1979) 47 C.C.C. (2d) 122
- R. v. Watson (1975) 26 C.C.C. (2d) 150
- Williams v. Froese(1985), 36 Sask. R 275 (Q.B.)
- Wright v. Mclean (1956), 7 D.L.R. (2d) 253
- John Barnes, Sports and the Law in Canada, 3rd edition (Toronto: Buttersworth, 1999)
- Canadian Press “NHL Release on the Marty McSorely Suspension” The Toronto Sun, Toronto, February 23 2000.
- Dave D’Alessandor “Despite Chocking his coach, Sprewell will be in demand”, online: The Sporting news. http://www.thesportingnews.com/basketball (last modified 30 November 1998)
- Dean Juipe “Tyson Apologetic, Humble” (2000), online: The Las Vegas Sun http://www.lasvegassun.com/sports/boxing (last modified 13 September 2000)
- Randi Golberg “Bruins McSorely faces charges outside the arena”, online: World Nation, http://www.uvsc.edu/netxnews
- Major League Agreement art. I. (1988)
- Judy Owen “Charges open a can of worms” Winnipeg Sun, March 9 2000
- Mathew B. Pachamn “Limits of the Discretionary power of professional sports commissioner: a historical and legal analysis of issues raised by the Pete Rose Controversy” 76 Virginia Law Review (1990)
- Micheal A Rowe “Necessary or Unnecessary Roughness: The Legal Ramifications of Violence in Professional Sports” (1999), online: www.finew.com
- Solomon, Feldthusen, Kostel, Law of Torts, 4th ed. (Toronto: Carwell, 1996)
- The Associated Press “NHL Player Unhappy with Judges Ruling”(2000), online: http://www.espn.go.com/news/2000/1006 (last modified 6 October 2000)Table of Legislation
Criminal Code, R.S.C. 1985, c. C-46