Criminal Law and Violence in Sports

Published: 18th December 2009
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In 2004, then-Vancouver Canucks power forward Todd Bertuzzi made headlines when he punched Colorado Avalanche center Steve Moore in the back of the head during a Vancouver-Colorado hockey game. Following these events, Bertuzzi was charged with assault causing bodily harm. In December 2004, Bertuzzi plead guilty and was given a conditional sentence with one year of probation.



During and after the Bertuzzi incident, the issue of violence during sporting events, both at the professional and amateur level, received a lot of media attention. Criminal defence lawyers, judges, and other legal professionals have developed ways to differentiate between violent acts that are "part of the game" and violent acts that are criminal in nature. This issue comes up most often in hockey, rugby, football, wrestling, boxing, marshal arts and other full contact sports. Obviously, these sports often involve physical acts that lead to injury (such as checking, tackling, fighting, etc.). However, not all of these physical acts are criminal in nature.



Under the Criminal Code, a person commits assault when he or she intentionally applies force to another person without that person's consent. In essence, every time you touch another person, you "intentionally apply force" to that person. But, obviously, the law would be absurd if it categorized every touch as an assault. The consent requirement in the second half of the provision means that the law only catches unwanted touching. Thus, the first important issue in determining whether an incident of touching constitutes an assault, is determining whether the complainant consented to the touching in question. Consent can be either expressed or implied. Naturally, you do not have to obtain the verbal consent of your close friends and family members every time you touch them the nature of your relationship implies that some types of touching are welcome. However, it is prudent to ask a stranger permission before touching them for any reason.



The second issue we must consider is the scope of that consent, so that we can determine whether the complainant consented to the type of touching in question. For example, though your relationship with your family may imply that certain types of touching are non-objectionable, it does not constitute consent to sexual or violent touching. In fact, the Supreme Court of Canada has ruled that, for legal purposes, a person can never consent to violent touching which causes bodily harm.



There is an exception to the rule that you cannot consent to violent touching that allows individuals to consent to violence if that violence is part of a socially useful activity. The Supreme Court has indicated that, under this exception, individuals can consent to violent activity that normally occurs in the course of a sporting event.



In the context of a sporting event, a player implies that he or she consents to certain types of touching simply by participating in the game. That consent may apply to some forms of violent touching that normally occur in the context of a sporting event; however, that does not mean that players consent to all forms of violence. The Bertuzzi case provides a good example of how challenging this dilemma can be. By participating in the hockey game, Steve Moore implied that he consented to be touched in a variety of violent ways. But it is difficult to determine what specific acts he consented to. Hockey often involves checking, hitting from behind, "spearing", "butt-ending", slashing, high-sticking and fighting. Though many of these acts are against the rules of the game, hockey players are not charged with assault every time they engage in violent touching that result in a penalty. Thus, the scope of violent acts hockey players consent to must go beyond just those acts which are allowed by the rules of the game. So, the question becomes, what was different about the hit by Bertuzzi to make the Attorney General charge him with assault?



In the game between Vancouver and Colarado preceding the game in which Bertuzzi hit Moore, Moore had injured the Canuck's captain Markus Naslund. During the game, it seemed that several Vancouver players were trying to get back at Moore for injuring Naslund. Moreover, before the hit, Bertuzzi was following Moore around the ice trying to provoke him into fighting. When Bertuzzi finally hit Moore it was completely unprovoked and from behind. It was clear that Bertuzzi's hit had nothing to do with the hockey game and was instead motivated by revenge. Moreover, the hit to the back of Moore's head seemed especially violent. Bertuzzi grabbed Moore's jersey from behind and punched him. He then fell on top of him. The injuries Moore suffered were substantial and forced him into an early retirement. This is why it attracted the attention of the criminal justice system.



However, assaults that occur during sporting events are not always as clear as in the Bertuzzi example. For that reason, in R. v. Cey the Supreme Court set out a test for determining the scope of consent to violence in the context of a sporting event. The court explained that the scope of implied consent must be assessed objectively based on the normal and reasonable expectations of fair play. The court will consider several factors, including:



* The setting of the game



* The nature of the league (are the players amateurs or professionals?)



* The age of the players



* The conditions of the game (are the players wearing protective equipment? Is the sport one that normally includes violence such as hockey, boxing, wrestling, or marshal arts?)



* The degree of the risk of injury (is this a sport where injuries are common and players can be assumed to have accepted the risk of injury, such as hockey, football or boxing?)



* The probability of serious harm (is this a sport where participants can be assumed to have accepted the risk of being seriously hurt, such as professional football or professional boxing?).Kostman Pyzer is a criminal defence law firm serving clients in the Greater Toronto area and elsewhere in the province of Ontario since 1983. Not every Toronto lawyer is created equal. We are creative, experienced and hardworking. We pride ourselves on our aggressive representation of clients and our relentless commitment to success. Visit online today.

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