“We play them a lot down the stretch, and we’re going to go after their skill players also.”
I haven’t agreed with much of what Ben Eager’s done during his time in Edmonton but I think he’s hit on the only rational response that a hockey player in the current climate can have to what Zack Kassian did to Sam Gagner on Saturday night in Edmonton. I write this with the following factual view of things: Kassian deliberately swung his stick at Gagner at head height, with sufficient force to break his jaw. I don’t believe that he intended to hit him in the face. This is the view of the facts on which the NHL’s discipline was based and I don’t think a court would have much trouble concluding, beyond a reasonable doubt, that that’s what happened. I’m not really interested in debating this point; feel free to move along if you believe otherwise.
If you’re an Oiler, with an interest in not seeing your player injured in a stick swinging incident in the future, what options are there? A five game suspension from the league for a player who’s been a wealthy man’s JF Jacques so far in his career? Keep in mind, this suspension is unusually severe, presumably because Gagner looks like he’s suffering from nerve tonic induced gigantism. Five games for a guy who’s been nothing special in the NHL is a pretty cheap price to pay for breaking the jaw of a top six forward on a division rival. Incentives matter. Why would that deter you?
The Oilers went through the motions of hockey’s traditional form of deterrence on Monday, claiming Steve MacIntyre off waivers from Pittsburgh. If MacIntyre makes Kassian take a beating it would be notable because it essentially never happens. Kassian’s never fought an honest to god nuclear weapon in the NHL and MacIntyre basically only fights those guys so it’s hard to see this coming off. Even then, unless MacIntyre does to Kassian what he did to Raitis Ivanans and basically ends his NHL career, what sort of deterrence does that add? A scuffle and a few punches in the face happens and life goes on.
Real deterrence isn’t a ritual display, which is what the NHL’s enforcer/policeman role is. It’s establishing a price that is so high for some conduct that people are scared to engage in a form of conduct. In the Cold War, the Americans and the Soviets had it: if one side launched a nuclear strike, they would do so knowing that the other’s last act would be to rain death on them. Eager’s dumb to say it publicly for legal and disciplinary reasons but, rationally, he’s right: real deterrence would be an eye for an eye.
You put out Gagner for twenty games with an illegal play, one of your team’s stars gets the same. Let one of the Sedins give the message to the Canucks that dangerous stick swinging at opposition stars has consequences and let him do it by way of a teamwide email because his jaw is wired shut. If the Canucks want to try and avenge that, well, there’s another Sedin. Mutually assured destruction kept the world from nuclear war for fifty years. It works, if people believe you’ll follow through. Break one Sedin’s jaw with a dirty play and word will get out: don’t make dirty plays against the Oilers.
It always strikes me as odd that the people, both inside and outside the game, who have a taste for deterrence of dirty play won’t acknowledge this. The deterrence that they prattle on about isn’t really deterrence; they just like to see large men punching faces and running into each other and claiming that it deters violence makes it all seem more sophisticated than it really is. For some reason though, they refuse to endorse that which would really deter: ensuring that opposing teams know that violence that is outside the accepted norms of hockey which results in serious injury will result in the same. Say what you will about Ben Eager, at least he’s got the jam to express what really works.
One reason not to endorse this, of course, is that it can take time to get to the detente that is necessary for threats of future violence to work. Both sides have to be convinced that there’s no likelihood of winning the dispute by escalating the violence that justifies the risk associated with escalating the violence. It took the Irish and the English a few hundred years to get to that point. Some of them aren’t there yet. Israel and its various enemies haven’t made it there. Violence works but sometimes it works slowly and isn’t worth the price that you pay along the way.
Which brings us to the criminal law.
The relevant legislation in Canada is the Criminal Code. At section 265, it provides as follows:
265. (1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
As you might imagine, the thorny part is the issue of consent. If you step on the ice in a hockey game, you’re consenting to a certain level of intentional force being applied against you. Courts are generally sensible and they recognize that you’re even consenting to a certain amount of intentional force being applied against you that is contrary to the rules of hockey. The Saskatchewan Court of Appeal discussed this in R. v. Cey, one of the leading decisions on when something on the ice crosses the line to being criminal. The referee gave the following evidence:
Perry was playing the puck, he had his back to the boards, approximately four feet away, three feet away from the boards. Roger came in from in front of the crease area, which is two feet past the goal line and held his stick out and checked him approximately, in the neck area. He did not make a jabbing motion, it was just he held his stick out and hit him.
Perry suffered serious injury, although not as bad as the injury Gagner suffered:
His face was pushed into the boards and he suffered injuries to his mouth and nose. He had to be carried from the ice and. was found at the hospital to be suffering from a concussion and a whiplash. He was in hospital for approximately three days. The accused received from the referee a five minute penalty for cross-checking.
At trial, the accused was acquitted. The Crown appealed. The majority on the Saskatchewan Court of Appeal had this to say about the issue of consent and hockey violence, which I’ll provide some commentary on as I go through:
Ordinarily consent, being a state of mind, is a wholly subjective matter to be determined accordingly, but when it comes to implied consent in the context of a team sport such as hockey, there cannot be as many different consents as there are players on the ice, and so the scope of the implied consent, having to be uniform, must be determined by reference to objective criteria. This is so with respect at least to those forms of conduct covered by the initial general consent. A fight between two players, where there may be additional, more specific consents, is perhaps another matter, but it is unnecessary to get into that.
What the court is saying here is that, leaving fighting aside, you have to have a standard for consent that applies to all of the players on the ice. Hockey, or any rough team sport, doesn’t really work if you’ve got 18 skaters on the ice, all of whom have decided that they will consent to different levels of violence. Note as well that this is very much a court deciding after the fact what the consent is. It’s a bit of an artificial inquiry but then, as a hockey philosopher once said, it is what it is.
As a general matter, conduct which is impliedly consented to can vary, for example, from setting to setting, league to league, age to age, and so on: See R. v. St. Croix, (supra) at p. 124. In other words, one ought to have regard for the conditions under which the game at issue is played in determining the scope of the implied consent.
Different levels of violence become criminal in different levels of hockey. This seems sensible to me. I play in a men’s league. Guys have to go to work the next day. Nobody’s getting paid. There’s no crowd to entertain. It’s sensible to think that what is impliedly consented to by me stepping on the ice in my league is different than what Sam Gagner impliedly consents to when he steps onto the ice in the best league in the world.
(R. v. St. Croix) suggested, as well, that implied consent is limited both “qualitatively and quantitatively”. By this we take it to mean that in determining whether, in any given case, the conduct complained of exceeds the scope of the prevailing implied consent, it is well to think in terms of (a) the nature of the act at issue and (b) the degree of force employed.
Again, this seems sensible to me. What the court is saying is that both the nature of the act at issue and the degree of force employed are relevant in determining whether the opposing player has consented to it. Taking your stick and tapping a guy on the face before a faceoff to bother him is different from swinging your stick at a player’s head.
It is well, too, to think in terms of what most deeply underlies the issue, namely the risk of injury and the degrees thereof. Some forms of bodily contact carry with them 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. Such are the violent acts referred to earlier.
I’ve added some emphasis to this because I think it’s critical. The law will step in at some point and say “OK – regardless of whether or not this fellow says he’s ok with you guys having a knife fight to the death, it’s not going to be legal.” As we will see, the provincial court judge in R. v. McSorley gave a pretty strong indication that he considered the violence in that case to be beyond that to which a player could consent, although he ended up deciding the case on a different basis.
The conditions under which the game in question is played, the nature of the act which forms the subject matter of the charge, the extent of the force employed, the degree of risk of injury, and the probabilities of serious harm are, of course, all matters of fact to be determined with reference to the whole of the circumstances. In large part, they form the ingredients which ought to be looked to in determining whether in all of the circumstances the ambit of the consent at issue in any given case was exceeded.
I’m going to talk about this some more below but this is a key paragraph because it essentially lays out the criteria that a judge is to apply in determining whether or not the consent that someone who steps on the ice gives to having force applied against him.
This leads me to the McSorley decision, which comes in 2000. The judge decided the McSorley case on the basis that McSorley had intentionally struck Brashear in the head with his stick. As that’s a fairly unusual occurrence in a hockey game, it’s not particularly valuable precedentially: it’s not particularly suprising that the courts won’t sanction deliberate sticks to heads.
One of McSorley’s defences was that he hadn’t intended to strike Brashear in the head but that he was swinging for his shoulder to start a fight. Personally, I’m inclined to believe him but that’s neither here nor there. The judge discussed this possibility at some length and, crucially, discussed how the law would apply.
McSorley’s evidence, which I will examine in detail shortly, was to the effect that he intended to slash Brashear on the shoulder to get his attention so that they would fight. Brashear, when cross-examined by Mr. Smart, agreed with the proposition that it was a deliberate blow to the head that he found objectionable. Implicit in this response was the likelihood that he would accept an accidental blow to the head, aimed elsewhere, as a risk of the game.
In addition there was a considerable body of evidence, through cross-examination by Mr. Williams, in which witnesses agreed that slashes and cross-checks to various parts of the body, including the shoulders, were recognized as legitimate means of initiating fights. When they saw Brashear and McSorley on the ice together in the dying moments of the game, Crawford and Watson were both even expecting that McSorley might deliver a slash or cross-check to Brashear to start something.
If the slash was intended for the shoulder, delivered with the intention of starting a fight, my conclusion would be that it was within the common practices and norms of the game.
OK – so what the judge has done here is correctly identify that slashes high on the body are a common way of starting fights in a hockey game, within the common practices and norms of the game even if outside the written rules. If he’d found that they weren’t within the common practices and norms, that would have ended the inquiry right there.
Mr. Hicks (ed. the prosecutor) argued that there were several factors to assess in determining the risk from a slash to the shoulder in the circumstances of this case. For the sake of brevity, I will quote directly:
“First of all, we have evidence before the court of the responsibility that a player has to control his stick. Secondly, we have evidence before the court acknowledging the fast moving nature of this game. We have evidence before the court acknowledging the highly agile nature of the players who play it, the quick decisions that are made, the instantaneous movements. That may be a good word for it or not, but they change position in a flash. They move in a flash. They shift their body positions in a flash. We just have to watch Mr. Samsonov come up the left wing with the puck in the last seconds of the game and the move he puts on at the boards to have some idea of how this game is played at the National Hockey League level.
We know that Mr. McSorley works out regularly, that he is a powerful man, that he works to increase that power and his strength. We know from Mr. Heinze that slashing is not something that can be carried out with pinpoint accuracy. We know that players must be alert while they’re on the ice. We know that there is always danger from a whole variety of sources. We know from Mr. Sather and others that there is danger in the slashing technique and that that danger rises and increases as you use it the higher up the body you go. We know that the head is a vulnerable area. We know that the head is just virtually inches away from the shoulder area. We know that Mr. McSorley has learned since his youth of the need for safety on the ice.
…We know that the neck and the head area are exposed, the neck particularly, the head obviously covered to some degree by the helmet, but the face certainly exposed. We know that respect for a player’s safety, an opponent’s safety, is something that hockey players should have in mind. If you choose to include it in this list, we have evidence that Mr. McSorley was suffering a shoulder injury.
Under all of those circumstances, we submit, in considering the time of the game and the lack of interest demonstrated by Mr. Brashear to that point in any sort of altercation, a swing of the stick where pinpoint accuracy is not possible, in the area that it was delivered, in the circumstances that it was delivered, was a reckless act, and it vitiates consent because of the danger it poses, …”
You can pretty much replace “Mr. McSorley” with “Mr. Kassian” and “Mr. Brashear” with “Mr. Gagner” for all of this. Kassian’s explanation would be, if anything, dumber: “I just wanted to whack him.” There was no possibility that Gagner was going to fight him.
Judge Kitchen went on:
…I find that Mr. Hicks’ recitation of the evidence is accurate. I must examine, then, the test to be applied in determining whether in law the risk was too great to be consented to by the players.
The leading case on the point, discussed by both counsel, is that of the Supreme Court of Canada in R. v. Jobidon, 1991 CanLII 77 (SCC), (1991) 66 C.C.C. (3d) 454. It is not a hockey case. Jobidon was a young, fit and powerful man. The victim was larger than Jobidon, and had previous training as a boxer. The two agreed to fight in the parking lot of a bar. Jobidon’s first blow was so powerful that it knocked the victim back onto the hood of a car, unconscious. Jobidon, not knowing this, followed through with a flurry of blows to ensure that the victim could not respond. The victim died and Jobidon was convicted of manslaughter. The defence was that the victim consented, and the court examined when consent is a defence to assault, and when that consent is overridden by public policy.
In the majority decision, written by Gonthier J., it was noted that various limitations on the validity of consent have a long lineage in the history of the offence of assault. He then examines some of those limitations in the historical context, and at page 494 discusses limitations on consent relevant to the McSorley case:
The limitation demanded by s.265 as it applies to 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.
Stated in this way, the policy of the common law will not affect the validity or effectiveness of freely given consent to participate in rough sporting activities, so long as the intentional applications of force to which one consents are within the customary norms and rules of the game. Unlike fist fights, sporting activities and games usually have a significant social value; they are worthwhile. In this regard the holding of the Saskatchewan Court of Appeal in R. v. Cey, supra, is apposite.
The court’s majority determined that some forms of intentionally applied force will clearly fall within the scope of the rules of the game, and will therefore readily ground a finding of implied consent, to which effect should be given. On the other hand, very violent forms of force which clearly extend beyond the ordinary norms of conduct will not be recognized as legitimate conduct to which one can validly consent.
Judge Kitchen proceeded to discuss R. v. Cey, which I’ve already discussed above, so I’ll skip over that portion of the decision. He then gets into his analysis:
I must therefore measure the evidence, as summarized in the excerpt above from the submission of Mr. Hicks, against the legal test for vitiating consent as stated in R. v. Jobidon and R. v. Cey.
The question is, was the slash to the shoulder worth the risk, given all of the circumstances, including what had happened previously, and the time of the game?
The Boston team had come out flat. McSorley had fought Brashear, trying to fire up his team, but it failed to inspire them. Brashear had riled the Boston bench with his hand dusting, Hulk Hogan pose, and goalie interference, but he had clearly declined subsequent opportunities to fight. At the end of the game, with about twenty seconds left, McSorley was put on the ice by his coach, Jacques Laperriere, to regain Boston pride by challenging Brashear once more. McSorley tried to lure Brashear by taking the puck himself, but Brashear turned away, clearly showing once again that he was not interested in a confrontation. There was too little time left – only seconds. McSorley had to act quickly to avoid being suspended by the league for fighting at the end of the game. Whatever he chose to do would be rushed. The most dangerous of permissible options would be to slash to the shoulder area, endangering the head. In fact, McSorley’s stated target was even more indefinite – “High in the body, upper arm, shoulder area.” This danger was compounded by the fact Brashear would be struck from behind, allowing no opportunity to defend himself. At that time of the game, it was likely that all of the players were letting their guards down.
Because Brashear was not interested in confrontation, only a very major slash might force him to respond, but this increased the danger of injury. The only benefit to be gained from all of this was that perhaps Boston might walk out of the building with a little more pride. The risk was not worth it. If McSorley was indeed aiming for the shoulder and missed, the public policy test in the Jobidon and Cey cases leads one to conclude that the consent to accept such a risk must be vitiated or overridden.
This certainly does not conclude the matter. I have only concluded that a slash aimed at the shoulder was too dangerous for the players to consent to it. I have not concluded that McSorley was aware of this risk.
The procedure to be followed at this point is suggested by the Jobidon Case. I must first determine if the blow to the head was deliberate. If not, was it an unacceptable risk of what was intended? If so, was McSorley aware of that risk?
As will be seen, it will be unnecessary to consider that latter issue.
You can apply all of this to the Kassian slash on Gagner. In many ways, I think a judge would find what Kassian did to be worse because McSorley had at least an shred of a justification for his stick swing if you accept that he wasn’t aiming for the head – he wanted to provoke a fight and fights are within the customary norms and practices of hockey. Kassian got beat by Gagner and wanted to take a pound of flesh anyway.
Many of this other comments would be directly applicable to this incident. Kassian’s target was necessarily indefinite – he knew that Gagner was there and he swung his stick high, not even bothering to take precautions to avoid the head. Gagner was defenceless. Gagner wouldn’t fight Kassian so there wasn’t even the possibility of that.
I note that I don’t take Judge Kitchen’s decision to mean that any contact between the stick and the head would be an assault. It depends on a variety of factors, as set out in R. v. Cey. If, for example, Gagner, had the puck and Kassian tried to lift his stick and missed, catching him in the face and breaking his jaw, there’s no criminal offence.
I’ve had people on Twitter who have criminology degrees or who are “aspiring law people” condescendingly explain to me that I’m wrong and that Kassian is ok because there’s no intent. With respect, the intent that’s necessary was the intent to swing his stick at Gagner. What he intended to hit is relevant in terms of determining whether it’s within the scope of the violence to which Gagner consented – if, for example, Gagner had fallen, and caught a slash intended for his shins in his face, it’s different – but when you swing a stick blindly and high back at a player, you intended to strike him high on the body.
The key thing that I take from this is that a Canadian judge has ruled that swinging your stick at a player’s shoulder, missing, and getting him in the head constitutes assault, subject to the player being unaware with the risk, something I think that the Crown would have little difficulty in proving. Players cannot consent to that level of violence.
Should the courts get involved in this? I lean towards yes. I don’t think that the Kassian stick swing on Gagner was as normal a play as some are making it out to be – the degree of force involved was significant and he took a substantial risk in terms of where he swung his stick, presumably because slashing a guy on the front of his body below his waist is a waste of time. If his play was normal, I’d expect a lot more broken jaws from slashes in a typical season.
Adjudicating it through the criminal system has the salutary effect of reminding people who play hockey that they aren’t above the law, in the hopes of keeping the truly stupid incidences of violence out of the game. It also provides a sort of release valve that the NHL disciplinary system doesn’t, giving people the sense that something will be done about violent acts. It’s rare that retribution goes wrong in the NHL but when it does, it’s ugly. Ask Steve Moore. Or Donald Brashear.Email Tyler Dellow at firstname.lastname@example.org