Kinesiology 4459A/B Lecture Notes - Lecture 14: Assault Causing Bodily Harm, Implied Consent, Sports League
20 Feb 2017
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Lecture14
R. v. Leclerc (C.A.), 1991 CanLII 7389 (ON CA)
accused was charged with aggravated assault after cross- checking another player in a "no bodily contact"
hockey game, causing that player to crash into the boards and resulting in a dislocation of a portion of the
player's spine and permanent paralysis. The trial judge rejected the evidence of the referee that the cross-
check was "deliberate" and "vicious", and accepted the evidence of another witness that the accused
shoved the complainant in the back in order to push him off and avoid more violent contact in such close
proximity to the boards
Finding that the complainant had impliedly consented to those assaults which were inherent and
reasonably incidental to the normal playing of the game at that level (an industrial league) and that the
accused lacked a "definite resolve to cause serious injury", the trial judge acquitted the accused. The
Crown appealed.
The prosecution is not required to prove that the accused intended to wound, maim or disfigure the
complainant or endanger his life. To the extent that the trial judge elevated the mens rea requirement to
one of specific intent, he erred in law.
APPEAL by the Crown from the accused's acquittal in District Court on a charge of aggravated assault.
question of law raised by the appellant is whether the learned trial judge erred in his interpretation of the
mens rea requirement of the offence charged by placing an unduly onerous burden on the prosecution,
which had the effect of requiring proof of a specific intent to cause serious injury, and whether this self-
misdirection had the further effect of placing an incorrect and increased burden on the Crown as to the
circumstances required to be proved in order to negative implied consent.
The referee described the cross-check as "deliberate" and "vicious", with intent to injure. The respondent
testified that he was skating fast after the puck and merely gave the complainant a push or a shove from
behind to move him off the puck, which caused the latter to lose his balance and crash head first into the
boards.
The learned trial judge clearly rejected the evidence of the referee. He did not accept the respondent's
version entirely, but accepted the evidence of a witness whose opinion was that the respondent shoved the
complainant in the back in order to push him off and avoid more violent contact in such close proximity
to the end boards. He concluded that, even in the non-contact industrial league in which the respondent
and the complainant played, "in practice all players expected and accepted the risks of contact inherent in
the spirited play this level of hockey traditionally produced".
The case law interpreting the sections quoted makes it clear that the essential intent required for an
assault, as defined, remains the same for all forms of assault, including aggravated assault. Parliament
intended that the severity of the punishment should increase to reflect the more serious consequences of
the assault. It never intended that, on an indictment charging "aggravated assault", the prosecution would
be required to prove that the accused intended to wound, maim or disfigure the complainant or endanger
his life
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The implied consent issue
As previously mentioned, the learned trial judge found that the complainant, having agreed to compete in
this particular hockey league, impliedly consented to those assaults which are inherent and reasonably
incidental to the normal playing of the game at this level.
The problem that the courts face with respect to this issue is the scope of implied consent -- that is, at
what point does conduct in sporting activity fall outside the standards which players impliedly agree to as
an acceptable part of the game?
regard must be had to the whole of the conditions under which the game is played. The criteria identified
by the Saskatchewan Court of Appeal, which may be referred to so as to determine the scope of implied
consent, include the setting of the game, the league, the age of the players, the conditions under which the
game is played, the extent of the force employed, the degree of risk of injury and the probabilities of
serious harm.
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.
Conduct which evinces a deliberate purpose to inflict injury will generally be held to be outside of the
immunity provided by the scope of implied consent in a sports arena. This is not to be taken to mean, as
the learned trial judge apparently did in the case under appeal, that in order to negative implied consent,
the prosecution has the burden of proving a deliberate purpose or resolve to inflict injury.
The error in law does not automatically require the direction of a new trial. It becomes necessary to
consider the effect of the self-misdirection in the light of the findings of fact which the learned trial judge
made and which are supported by the evidence. Paraphrasing his view, the push, shove or cross- check
resulted directly from the respondent's loss of balance and was part of the respondent's "instinctive reflex
reaction", which had the object of minimizing the risk of bodily harm created by his high speed in close
proximity to the boards. He properly rejected the alternative Crown theory that the force of the blow to
the neck of the victim was sufficient to establish criminal conduct.
I would accordingly dismiss the Attorney General's appeal against the acquittal.
Appeal dismissed.
R. v. Bertuzzi, 2004 BCPC 472 (CanLII)
In considering the appropriate sentence in any case, the court must be mindful of at least three factors;
that is the nature of the offence, the specific circumstances of the offence, and the circumstances of the
offender.
I note that Todd Bertuzzi has entered a plea of guilty to the offence of assault causing bodily harm of
Steve Moore
3 weeks’ prior, Moore checked Naslund and gave him a concussion and no penalty called. Missed 3
games. Over the next few days, Team and certain players made comments that retribution would be in
the cards.
Bertuzzi approached Mr. Moore, who did not have the puck. Bertuzzi seems to be talking at Moore, and
Moore continues to skate, not hard, but glides away from Bertuzzi. They start out in the Canucks' end of
the ice. They then move down to the other end, the Colorado end. Bertuzzi continued to say things to
Moore, apparently attempting to get him into, or talk him into, or goad him into engaging in a consensual
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