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Hockey Night in Canada & Beer League Update: Implied Consent Does Not Include Savage Unprovoked Attacks

M~ SUN0308s Can Moore l1 Hockey Night in Canada & Beer League Update: Implied Consent Does Not Include Savage Unprovoked Attacks

Many of us Canadians either grow up playing hockey, or watching our kids play, or both. Given the nature of the game, we sign those mandatory hockey league Consent Forms knowing that injury to players is always a potential risk. (And few of us – even the lawyers among us – ever bother to actually read the densely-worded type on those Forms.) But what is the extent of the risk that league sports players are consenting to?

That is the legal question arising from the recent criminal conviction of an Ottawa adult recreational hockey player for aggravated assault in connection with an on-ice hit to an opposing player. The incident occurred during a regular season game between the Pirates and the Tiger-Cats in a non-contact, senior men’s recreational hockey league. In the last 47 seconds of the game, when the Pirates led by two goals, Tiger-Cats team member Gordon MacIsaac collided with Drew Casterson, a forward on the Pirates team. Caterson suffered a concussion, soft tissue neck and spine injuries, facial scars, and several broken teeth as a result.

The league rules provided that deliberate body contact – which expressly included an intentional body-check or bump to an opponent – was not permitted anywhere on the ice, and that league-imposed sanctions could follow. Casterson sued MacIsaac in the civil courts, claiming $600,000 in damages. The on-ice injury had impaired both his quality of life and his future earning capacity: He had been a committed athlete who played many sports including hockey, volleyball, skiing, running and Dragon boating, and prior to the incident he owned a business that concentrated on personal health and fitness for people with mobility issues.

While that civil claim has not yet reached the hearing stage, MacIsaac was also criminally charged and convicted with aggravated assault, and sentenced to 18 months’ probation for what the judge called a “deliberate blindside hit”. The judge found MacIsaac’s hit to Casterson had been in retaliation for a missed penalty call moments earlier, with about a minute left in the game in connection with a play at the blue line. In doing so, the judge conceded that courts are generally reluctant to impose criminal liability in the context of contact sports, and that a wide interpretation was often given to the scope of what was impliedly being consented to.

However, the judge confirmed a long-held legal principle that while players may consent to some bodily contact that is necessarily incidental to the game, they do not consent to savage unprovoked attacks that result in serious injuries. MacIsaac has now appealed the criminal conviction.

One of the pivotal legal questions will be whether Casterson impliedly consented in this case to the level of potential contact (and possible injury) that was inflicted on him by fellow players such as MacIsaac. In a broader sense, it also gives rise to the question of whether one player’s intentional infliction of serious harm on another – in pickup and league sports such as recreational hockey, soccer, lacrosse or football –is something that should be sanctioned in either or both the Canadian criminal and civil justice systems.

What are your thoughts?

For the full text of the criminal decision, see:

R. v. MacIsaac, 2013 ONCJ 787 (CanLII)

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