• Should Zack Kassian Face Criminal Charges?

    by Tyler Dellow • September 25, 2013 • Uncategorized • 36 Comments

    “We play them a lot down the stretch, and we’re going to go after their skill players also.”

    -Ben Eager

    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 mc79hockey@gmail.com

    About Tyler Dellow

    36 Responses to Should Zack Kassian Face Criminal Charges?

    1. woodguy
      September 25, 2013 at

      Sooooo…… know any Prosecutors in Edmonton to forward this to?

      Looks like you did most of the homework already.

    2. Lord Bob
      September 25, 2013 at

      cool story bro

    3. Shawn
      September 25, 2013 at

      I think, perhaps like many, that courts should stay our of pro sports. That said this really is a well laid out argument to suggest that, at time, there should be some intervention.

      Your concluding paragraph is perfect…

    4. Colin
      September 25, 2013 at

      Curious as to where intentional hits to the head land here, since they’ve been explicitly made a violation in the game. Is it reasonable to assume that players consent to play the game, replete with physical (sometimes violent) contact, but that that consent doesn’t apply to being intentionally hit in the head, since it’s against the rules? If so, is assault a potential remedy?

      • Tyler Dellow
        September 25, 2013 at

        Intentional hits to the head are probably on thinner ice than they were five years ago, when they’d attract a judicial finding of “Keep your head up.”

        It really does depend on the context, I think. If it’s a potentially legal hit gone wrong, I don’t think that the courts would be too interested in adjudicating it. If a guy is skating down the ice, puck nowhere near him and someone went after the head – I think that there’s room for a criminal prosecution there.

        The nature of this stuff is that it tends to only come up when something horrific happens. Tending to it earlier would tend to eliminate it before something horrific happens.

    5. hmmm
      September 25, 2013 at

      I thought we were supposed to start taking the oilers and their fans seriously this season, but now I check your blog and see you’re still writing these precious little fan fiction pieces.

      Still a long ways to go.

      • woodguy
        September 25, 2013 at

        The Oilers lost their 2C for 2 months to a stick swinging idiot who is barely a NHLer.

        If VAN lost Kesler to Eager in the same incident i’m sure howls from Vancouver would be heard across the Rockies and the local VAN fans would burn a bunch of vehicles and rob some stores in protest.

        If TOR lost Kadri to Neil swinging his stick the Leaf fans would demand that OTT forfeit their franchise and TSN would do a 4 part series into “Violence in Hockey: Has it gone too far?”

        It’s just the Oilers so every just shrugs their shoulders.

      • Dangilitis
        September 25, 2013 at

        You are a moron. I am using simple words here so you can comprehend the sentiment. Oh, woops, big word.

    6. BIll
      September 25, 2013 at

      How about the courts stay out of it and the NHL stops being a bunch of pussies and starts laying down the ban hammer much harder. 20 game suspensions for something like this. First time offender, fifth time – who cares? Raffi Torres, Henrik Zetterberg – Who cares? Injury, no injury – Who cares? If you target the head or your stick is obviously flying towards a head – you’re done for a long while.

      And maybe just for the icing on the cake, you’re also suspended for any game in which your victim plays in for the rest of the season including the playoffs.

    7. antro
      September 25, 2013 at

      Interesting post (although the historical angle, Cold War, England/Ireland, etc. needs a lot of work).

      I do find one thing disingenuous: “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.”

      The NHL’s discipline video does not agree with all of your assertion of the facts (I’m actually not disputing your assertion of the facts, but rather your assertion that the NHL shares your view of them). The NHL discipline video actually says that Zack Kassian swung his stick “recklessly,” and that he began to swing it before hitting the boards (i.e., intent). At no point does Shanahan claim “at head height” was deliberate, nor “with sufficient force to break his jaw” was deliberate. In fact he avoids these kinds of claims, which he has made in other videos. So Shanahan agrees with only the first part of your sentence, viz., “Kassian deliberately swung his stick at Gagner.” The five games is because of the significant injury, and because Kassian is “responsible for the consequences of swinging his stick in this instance.” The “head height” and “force” parts of your description are solely held by you. I see no evidence that they are shared by the NHL, nor that a court would necessarily conclude that you are right about them.

      (As an aside, I myself would rather that plays like Kassian’s would get much much longer suspensions, but I seem to be in the minority of hockey fans.)

      Now, to your larger argument: the typical NHL game includes a lot of sticks swung recklessly at other players, often with much more obvious signs of intentionality (i.e., player actually looking at where he is swinging when contact is made). The force is usually lower, to be sure. But how hard would it be for a good lawyer to show these acts are part of the typical hockey game, and then argue that Kassian’s is just a typical attempt to slash after the play that went awry? The comparison to McSorley would, I think, stand a tough challenge on this point.

    8. Tyler Dellow
      September 25, 2013 at

      I’m not really sure what your critique is. Do you think that his arm got sucked into a weird gravitational field, speeding things up? The issue, at least initially, was whether it was just a reckless motion or a swing. The NHL found that it was a swing. That it was at head height and with sufficient force to break his jaw is self-evident. See, his jaw is attached to his head and his jaw was broken.

      • antro
        September 25, 2013 at

        Your whole analogy with the McSorley case rests on some kind of deliberate action at head height. The McSorley case is much clearer in terms of signs of intent (chasing Brashear, etc). You back up your version of the facts with the statement that the NHL’s discipline is based on this “view of the facts”–to suggest that what allows you to make your comparison has already in a sense convinced one kind of adjudicator. I think your reply to me is disingenuous too: the intent to hit at a certain height is *crucial* for your argument about levels of consent, as you note later: “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.” Shanahan does not say that Kassian deliberately tried to hit Gagner “high on the body”, or even swung at that height. He does not say that Kassian deliberately tried to injure Gagner by swinging with a high degree of force. He avoids such claims. There’s nothing self-evident about them. Kassian or his lawyer could say, “yeah, I wanted to give him a little whack, but I stumbled, and my stick flicked up.”

        As I noted, I’m not actually disputing your version of the facts, but rather pointing out that the authority you invoke (the NHL’s view) does not hold all of them. In that case, perhaps what you take as self-evident would not be self-evident to courts, which is what the whole analogy with McSorley/Brashear requires.

        Hockey players get hit in the face with errant sticks all the time. They receive blows that are sufficient to concuss them all the time. How hard would it be to show a distinction from the McSorley case? In that sense, I don’t think it is very easy to replace Kassian and Gagner with McSorley and Brashear.

        • Warehammer
          September 27, 2013 at

          Except that the defense of “I lost my balance and that’s why the stick swung around” falls completely apart when you watch the video, where you can clearly see Kassian swinging his stick before making any contact with the boards. Shanahan even says this explicitly.

    9. Murat
      September 25, 2013 at

      If I’ve connected the dots:

      1) If the right conditions are met, an act which occurs within a hockey game can be classified as assault.
      2) Those conditions center around the idea of consent. A certain amount of violence is expected within the course of a hockey game, but there are acts with higher risk/consequence which may be deemed to go beyond the “expected” level of violence. These acts can be considered to go past implied consent if a judge interprets them this way.

      (Aside: I am unclear on the degree to which expected “reward” plays into this. Why does the judge spend so much time demonstrating that McSorley’s team had very little to gain?)

      My second list – what I believe to be your point Tyler:

      1) Sometimes in hockey, players commit acts of violence whose consequences are grossly disproportionate to the consequences they face in the context of the NHL
      2) There are legal grounds to consider some of these acts of violence to be assault.
      3) The NHL hasn’t figured its shit out in terms of policing itself and therefore one viable route would be to pursue legal action wherever possible.

      If I have things straight to this point, I’m kind of torn.

      Reasons I like the idea:
      1) I think that, in a vacuum at the very least, it would work.
      2) Ideally, this would negate the existence of “nuclear deterrent” hockey players and we’d see more “real” hockey players. The game would be better.

      Reasons I don’t like the idea:
      1) Intuitively (emotionally really) I feel that it would be better if the NHL policed itself. This is kind of moot in a sense because it hasn’t done so but I’m trying to be intellectually honest about my opinions.
      2) I half-wonder if the NHL wouldn’t write “no matter what happens to me on the ice, I give consent because I want to play hockey” into its standard player contracts. I suppose the NHLPA wouldn’t see to this but this is an area I don’t know about so I’m looking for comment to enlighten me.
      3) I worry about public perception of the NHL and its players. I suppose that, if the NHL wanted a system like this to exist it could just set its PR team to skewer anyone who was convicted and go on tirades of “one bad apple, this is not real hockey, etc”.

      After reading my complaints, I am far closer to agreeing with you than when I read the article’s title. My knee jerk reaction was “no, of course not, this is hockey” but after thinking rationally for a while, I think “it would probably work” is the strongest argument I have.

      Addendum: I was very impressed at the way the law defined consent (allowed for certain terms to breach it, allowed for different levels of implied consent based on different contexts, etc. I’m not sure what the rest of people think but I thought of this as an intelligent and fully functional interpretation.)

    10. Tyler Dellow
      September 25, 2013 at

      Aside: I am unclear on the degree to which expected “reward” plays into this. Why does the judge spend so much time demonstrating that McSorley’s team had very little to gain?

      The courts see value in sporting events, even rough sporting events. Rough sporting events are going to have consequences some times. People are going to get hurt. Sometimes they’ll get hurt badly. We can accept that people are going to hurt. A devastating body check might knock someone out or break some bones. Bodychecks are a legal part of the game.

      Where you get outside of things that are part of the game, things that have just kind of evolved into the game, there’s no sporting purpose to them. If the NHL suspended everyone who swung a stick for a eyar, hockey would go in and very quickly there’d be no stick swinging. You don’t see stuff like this anymore:

      Using your stick as a weapon towards someone’s head in circumstances in which it’s indisputable that that’s what you’re doing has basically disappeared from the game. Dino Cicarelli is the last one I can think of pre-McSorley:

      Courts are hesitant to get into stuff that is the essence of the game. They’re less hesitant when it’s stuff that has no sporting value and is incredibly dangerous.

      2) I half-wonder if the NHL wouldn’t write “no matter what happens to me on the ice, I give consent because I want to play hockey” into its standard player contracts.

      Wouldn’t work. I can’t hire you and someone else from this thread to have a knife fight to the death. You can’t contract out of the application of criminal law.

    11. Murat
      September 25, 2013 at

      Thank you for the context and the clarification, Tyler. Also for the slideshow. You dig deep for these posts of yours!

    12. September 25, 2013 at

      Setting aside the question of criminality, would the same logic apply in civil court? If the Crown was unwilling/unable to prosecute, could Gagner go after Kassian/Canucks under Canadian tort law? And would the remedies available come anywhere near being a reasonable deterrent for the future? (IANAL obviously)

    13. Aaron Taylor
      September 25, 2013 at

      As a Canucks fan I want to better understand the mindset behind this post. I don’t disagree with the legal aspects of it as I am in no position to do so. I do want to know though if something like Duncan Keith’s flying elbow on Daniel Sedin in ’12 could be handled in a similar way. Likewise if John Scott were to have pummelled Kessel without Kessel dropping his gloves and an injury resulted could that lead to charges? If so I agree whole heartedly with this article. Keith getting 5 games didn’t make me feel better that Sedin missed the rest of the regular season and most of the playoffs, and I can’t imagine Kassian missing 5 is much of a consolation for Oiler fans. It would be nice if secondary players had an incentive not to “take out” stars.

    14. michaeld
      September 25, 2013 at

      Your analysis of the “race to the bottom” in terms of violence is pretty much right on, but I’m not sure that you need to make the leap to invoking criminal law to overcome it (i.e., to reorganize the incentives in such a way as to genuinely deter violence without having to depend on “tit-for-tat” violence from the offended parties). In civil life the neutral adjudicator that can prevent these is indeed the state, but there’s an “intra-hockey” analogue and that’s the NHL. Could we not adjust the hockey rules in such a way as to create the necessary deterrents? True, just giving heavy suspensions for offenders won’t suffice, since trading even 40 games of Kassian for 20 games of Gagner is a pretty good deal for the Canucks. But what about Zona’s suggestion that we also make Gagner’s equivalent on the Canucks (Daniel Sedin perhaps) sit out as long as Gagner does? That way we can give the Canucks the necessary incentive to prevent their meatheads from hacking up good players but without having to have Ben Eager engage in vigilante violence and poor Daniel Sedin from having his jaw wired shut? (It costs the Canucks just as much to have him sitting out healthy as with a broken jaw, and it’s “cheaper” for the Oiler’s too (if not having Ben Eager suspended is considered a “savings”)

      That’s not to say that your legal analysis isn’t correct and that legal recourse isn’t justified here… only that it’s not necessary for the ends of creating the right pattern of incentives to prevent deliberate intents to injure good players.

    15. michaeld
      September 25, 2013 at

      Also — since I’m warming to my topic as I’m wont to do — Zona’s proposal would create incentives for TEAMS (and hence their managment and coaches) to prevent Kassian-style attacks. Going to criminal justice, on the other hand, simply increases the stakes for the individual player. A significant part of the problem of this kind of violence is that those making decisions that result in this violence are coaches (who put John Scott on the ice after a fight) and management (who feel the need to waste valuable roster spots on Steve Mac and Zach Kassian who have little use besides inflicting harm).

      If we create the right kinds of stakes (you lose your good players if your goons hurt another team’s good player), then we give teams the incentives not to ice their goons and ultimately not to employ them at all (because them doing what they do best — viz. hurting people — is now not a benefit to your team but a loss). And then we can have what we all want… 4 lines and 3 defensive pairs of hockey players rather than wasting roster spots on thugs. It’s not quite that simple, but…

      • Peachy
        September 26, 2013 at

        Interesting point about decision-making, but I don’t think it quite captures the essence of the problem.

        The bottom line is that I don’t think deterrence can be built around an expectation of rationality on the part of the player. You might have a marginal effect on this, either by ingraining a healthy respect for other players (say, via stronger punishments for individuals who commit infractions), but an infraction like Kassian’s is committed by someone encountering the following barriers to rationally weighing the consequences of a decision:

        -With the speed of the game and, say, a 0.5 second reaction time, a player’ will frequently be unable to adjust to changing on-ice circumstances in time to avoid crossing the line between legal and illegal play.
        -Reasoning capabilities decline rapidly with exhaustion. For example, try pondering an argument in the middle of a tabata set. This is not unlike what hockey players face.
        -Hockey is emotional.

        Regarding the argument, you’re correct that teams need to be properly incented, but removing good players from the game is bad news all around and something the NHLPA, owners and fans will never go for. A consistent (if inflexible) suspension system, combined with loss of draft picks weighted to the magnitude of the infraction might accomplish this.

        HOWEVER… The huge risk of such a system is that, if “justice” is administrated by the current regime, it may result in far fewer suspensions. Think Keith v. Carter; intentional slash to the mouth, 1 game suspension. If the league was forced to choose between 5 games and a 7th round draft pick (completely hypothetical) and zero games (neglecting to study the infraction at all, which do you think it would go for?

        The system is horribly broken from top to bottom, and star players will continue to get knocked out of the game until there’s wholesale change. That said, if the game’s best player can be removed for lengthy periods without effecting change, what hope is there?

        (As an aside, I’m confused as to why the narrative that Kassian is equivalent to a goon continues to hold sway. He’s probably the Canucks’ top player under age 25 and was slated to play on their first line this year.)

        • michaeld
          September 26, 2013 at

          You’re exactly right about the limits of rationality on decision-making on the part of the player and that’s why I think that Zona’s recommendation is better than Dellow’s. Zona’s creates incentives that not only deter the player from making a stupid play, but also to deter coaches from putting a player in a situation where he’s likely (or encouraged, even tacitly) to do so, and also to deter GM’s from having players on the team whose primary job skill is making stupid or violent plays.

          As to whether the NHLPA would go for it… the hope is that this proposal will REDUCE man-games lost (particularly by good players) by preventing injuries. If it really re-organizes the incentives at the team level too, it should reduce the incentives to pay and give roster spots to talentless “nuclear deterrent” types and create more space for talented (even if smaller) players on 3rd and 4th lines (imagine, the canucks could have mason raymond rather than zack kassian… the oilers could play Omark rather than SMac). This would improve the quality of the game and begin to create a virtuous circle in which clean skill is rewarded, hence fewer man-games are lost to skill players, which creates greater incentives to give more spots to clean skill players, which leads to fewer injuries, etc. It’s not quite that simple, but that’s the idea as I understand it. Certainly the situation that Dellow describes is a vicious circle… let’s turn it around.

          The fact that Kassian is the Canuck’s top player under 25 and a potential first-liner is says more perhaps about the organization than the player. Yes, he scored a bit when paired with the Sedins…. so could a strategically shaved gorilla. When you have a PIM to Points ratio of 5:1 and aren’t much use on the defensive end of the ice, you are a goon. Forgive me, internet anonymity brings out the sarcastic bastard in me.

    16. B-rand
      September 25, 2013 at

      Hello, long time reader, first time poster.

      Good analysis. Of course the facts would be very important and it seems to me it could go either way.

      Just wanted to point out that there is no need to wait for the justice system to get involved. In Canada, it is the right of any person to swear an information before a justice of the peace to compel someone to appear before a justice (section 504 of the Criminal Code). Just have to fill out Form 2 and swear it before the JP or Judge in your area. Have at it!

      http://laws-lois.justice.gc.ca/eng/acts/C-46/FullText.html#h-306

    17. September 26, 2013 at

      Alright Tyler… you lived up to your end of the bargain by writing your side. Here’s my rebuttal.

      Enjoy.

      http://www.puckwatch.com/2013/09/kassian-gagner-reply-to-mc79hockey.html

      • Sapp
        September 27, 2013 at

        Wow that was bad analysis. How do you suppose courts ever attribute mens rea? Think about it for one hour before you reply.

        • antro
          September 27, 2013 at

          Show your work, Sapp. Iain does.

          Tyler Dellow makes it seem that the “intent” to hit Gagner, the “intent” to hit him in a high risk area (high on the body), and the “intent” to hit him with unconsented amounts of force are all equally “self-evident.” The only authority he invokes besides his own two eyes and experience playing contact hockey in a men’s league is Brendan Shanahan. Brendan Shanahan does not make claims as large as Dellow’s. Iain points out that the courts had a lot more events in the hockey game to work with, as well as an admission by McSorley, to establish McSorley’s intent. Nothing like these series of events (a fight, several brawls, stalking Brashear multiple times) exists in the Kassian/Gagner case. In case you need a reminder:

          http://www.youtube.com/watch?v=YbTPFo6znZo

          In short, the analogy to the McSorley/Brashear is far-fetched, and nothing near the level of “self-evidence” that Dellow attributes to Kassian’s intentions is available to make it. As Iain points out, Dellow’s statement, “Kassian got beat by Gagner and wanted to take a pound of flesh anyway,” is pure fabrication. Indeed, I have seen no other hockey writer, including Oilers writers in the Edmonton Journal or bloggers like Derek Zona, make this connection.

          (Again, I too wish that Kassian had received 10-20 games, and I agree with the outrage for his recklessness. But then I generally don’t agree with the short suspensions the NHL gives out.)

          It is a testament to Dellow’s abilities as a blogger that he was able to work this into such a long and interesting post on how consent is understood. His ability to make the analogy to McSorley/Brashear however is sorely lacking.

          Btw, nice post, Iain!

          • Sapp
            September 27, 2013 at

            it’s only nice if you don’t understand anything about the law

            • antro
              September 27, 2013 at

              I’m assuming you do know something about “the law.” Let me ask you something: if Kassian was charged and the prosecutor made the case as Dellow outlines it here, and Kassian asked you to be his defense attorney, do you think you would have any trouble defending him and showing that the McSorley/Brashear decision was not relevant?

              I’m actually very much in agreement with Dellow’s dissatisfaction with NHL supplemental punishment. I think he shows why criminal charges don’t work, rather than why they would.

    18. Passive Voice
      September 27, 2013 at

      Re: nuclear deterrents. A few years ago the cops stopped an attempted school shooting somewhere. CNN or whoever latched on to a Facebook quote from the would-be shooter to the effect of “lessons not learned in blood are soon forgotten”. I find myself thinking about that quote several times each hockey season.

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    21. September 27, 2013 at

      Thanks Antro.

      Sapp – Why don’t you enlighten me?

      So many condescending comments about my ‘lack of education’, but no one articulating how I’m wrong.

      Lots of arrogance, but not a lot of facts.

      • TigerUnderGlass
        September 27, 2013 at

        The idea that “intent” = “intent to injure” is false and you’ve used it to frame your entire argument. How can that be taken seriously?

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    23. Jason Walters
      September 30, 2013 at

      Wow, Sapp got owned….

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