By voluntarily taking part in an activity, individuals implicitly consent to interactions with others that would otherwise be criminal assaults.
A visitor to Earth would probably notice something odd about some of our favourite pastimes. Societies around the world consider some behaviour – of one citizen against another – to be criminal and deserving of severe punishment. But sometimes, societies glorify and reward the same behaviour if it is part of a sport or athletic activity.
In Canada, we often think of our beloved hockey at the mention of “sport”. The highest levels of hockey showcase impressive puck-handling and goal scoring (and goal keeping!). But they also come with body checks and other rough behaviours, some of which land a player in the penalty box. Players engage in minor forms of violence to get possession of the puck for their team and to prevent the other team from scoring. Players also engage in various forms of misconduct such as tripping, slashing, charging and sometimes even fighting. When referees catch these acts they had out penalties:
- 2 minutes off the ice for minor infractions
- longer penalties for more serious misconduct, and
- multi-game suspensions and fines for the most serious behaviour.
Even in a consensual fight, individuals do not have free license to try to deliberately injure, wound or maim other people.For the most part, Canadian society is content to let hockey organizations deal with rules’ infractions within their games. Sometimes, however, the misconduct – and more importantly, its result – is so serious that police and the courts become involved.
Over the years, Canadian judges have approached these cases – in hockey and in other contact sports – based on consent. By voluntarily taking part in an activity, individuals implicitly (and sometimes explicitly) consent to interactions with others that would otherwise be criminal assaults. In criminal law, an assault is any unwanted physical touching by one person to another. Willingly taking part in a sport that includes people touching one another – even roughly sometimes – implies consent to that touching. This is not an assault in law.
Sometimes the touching goes beyond the scope of the consent. This may mean one person committed assault. Within the National Hockey League (NHL), it is accepted that there are frequent body checks and fights between players. In minor leagues, there are often rules against some, or any, of those forms of contact. Some leagues are strictly “no contact” organizations. In some cases, judges have imposed more severe sentences on minor players in recreational, “no contact” leagues compared to professional players. The reason being is that, at the professional level, there is a greater tolerance – even expectation – of more physical contact than in the lower leagues.
However, where a player purposely sets out to injure another, something closer to the “usual” criminal rules apply. Even in a consensual fight, individuals do not have free license to try to deliberately injure, wound or maim other people.
Where the Crown prosecutor decides a sporting act has crossed the line and starts a prosecution, the usual defences are available to the accused. They could argue the act was within the scope of what the other player consented to as part of the game. The player may also be able to claim self-defence. This defence has been successful for charges where the accused struck the other player believing the other player was going to attack him in a way or with a force beyond that of ordinary play. A strike after the play ends would not be either an ordinary part of the game or an act of self-defence.
The most recent, high-profile example a hockey incident that ended up in court is likely the 2004 prosecution of Todd Bertuzzi. He played for the Vancouver Canucks and pled guilty to “assault causing bodily harm” after he assaulted a player for the Colorado Avalanche during an NHL game in Vancouver. Bertuzzi (along with other Canucks) tried to goad the Colorado player into a consensual fist fight. Apparently, they were retaliating against a hit by the Colorado player against a fellow Canuck a few games earlier. When the Colorado player did not engage, Bertuzzi brought the other player down and punched him hard in the right temple. The judge at the sentencing could not say for sure whether this was on purpose. The other player suffered a serious concussion and long-term brain damage, limiting his future physical activities.
In criminal law, an assault is any unwanted physical touching by one person to another.In deciding the sentence for Todd Bertuzzi, the judge considered several factors. One factor was the public notoriety Bertuzzi had attracted due to the assault , including extensive and on-going national and international media attention. He was penalized more than $500,000 due to the NHL suspending him. The suspension is said to have ended the Canucks’ playoff chances that year. Before the incident, Bertuzzi was involved in various community charities and was considered to be of good background and character. He was not an “enforcer” – a player whose main role is to physically intimidate or fight with players on the other team.
Perhaps somewhat surprisingly, the judge accepted the penalty both the defence and Crown were suggesting – conditional discharge with one-year probation. A discharge means an accused is not convicted of the offence and does not have a criminal record. Judges can grant one where it is in the interests of the accused and not contrary to the public interest. The judge considered all the other forms of sanction and punishment imposed on Todd Bertuzzi. And they decided Bertuzzi did not need to be convicted to be deterred from engaging in similar conduct again.
In making their decision, the judge quoted from an earlier, similar case:
[I]n a hockey game, one accepts that some assaults which would otherwise be criminal will occur and consents to such assaults. … [H]owever, … to engage in a game of hockey is not to enter a forum to which the criminal law does not extend. To hold otherwise would be to create [in] the hockey arena a sanctuary for unbridled violence …
Similar principles govern other sports where body contact is expected, such as the martial arts, boxing, and North American football. Players should know and accept that others may touch them in ways that might be a criminal act if committed outside of the sport setting. By taking part in these activities, participants consent to this contact. However, charges may be laid if the nature of the contact goes beyond what is usual in that sport, or if injury is deliberately inflicted.
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Disclaimer
The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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About Charles Davison
