Q: I recently saw the vicious hit in the Quebec hockey league where one player injured another with an elbow to the head. How is it that no charges have been laid?
A: I think a lot of people saw that, and almost everyone would agree that was way out of line.
The league responded by suspending the player for the rest of the season and the playoffs. This is a civil law, regulatory response.
Whether criminal charges should be laid based on an incident in a sporting event is a matter involving a different set of rules.
Read Also
Stock dogs show off herding skills at Ag in Motion
Stock dogs draw a crowd at Ag in Motion. Border collies and other herding breeds are well known for the work they do on the farm.
First, there must be a consideration of the type and nature of the sport in issue. What is acceptable in one sport would be unacceptable in another. A clean, hard bodycheck in hockey is simply part of the game. The same act in curling or tennis would be so far out of anyone’s expectations that it would clearly be improper and likely unlawful.
This analysis focuses on the players’ expectations in a sporting event. Tennis players do not reasonably expect to be charged and bodily rammed into the wall behind the service line. That just isn’t done – never has been and never will be.
In other sports, such as hockey, rugby and football, a certain amount of physical contact and even violence is anticipated and is a part of the game. I don’t think any reasonable person would expect to play a game of hockey and remain totally untouched by other players during the game.
Some of this contact would undoubtedly be considered illegal if it didn’t occur in the context of a sporting event. Think of the blocking, rushing and tackling in football. Now think of doing that in your local grocery store or the bar. It’s not likely to be accepted.
One also needs to consider the age, skill level and league rules. What is reasonably expected and legally permissible in junior and professional ranks is not necessarily the same as in a old-timers’ league or with eight- year-old children.
All of this boils down to the common legal concept of consent. Given the league involved, the skill level of the players and the type of sport, can it be reasonably assumed that players involved in the sport consent to a certain level of physical contact?
In hockey, the consent is wide and involves a lot of physical contact. It also covers contact that is against the rules. If you play hockey, you can expect to be tripped or get into a fight. Those actions break the rules of the game but aren’t criminal.
The criminal justice system may intervene when physical contact goes beyond those expected norms.
Two guys drop their gloves and start circling. There’s consent to a fight. But then one of them picks up his stick and starts beating the other guy over the head. No consent could reasonably be inferred to have been given. In that situation, most courts would hold that public policy demands the justice system’s involvement.
In this case, the authorities should be looking at whether the force applied was intentional. From the video, it appears that it was.
Then, consider the level of play and league, which was high. The possibility of injury or harm from such an act also seems high.
Most importantly, consider whether the injured player could possibly have consented to this sort of action. That’s debatable, but in my view the dirty elbow would never be consented to by another player.
My personal view is that criminal charges and sanctions would be warranted in this case, but it may not happen because the offender is a super star. That’s a sad commentary on the state of Canada’s national game.
Rick Danyliuk is a lawyer with McDougall Gauley LLP in Saskatoon.
