R. v. MacIsaac, 2013 ONCJ 787

Citation: R. v. MacIsaac , 2013 ONCJ 787 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — GORDON MACISAAC Before Justice D.M. Lahaie Reasons for Judgment released on December 16 th , 2013 J. Cavanagh ............................................................................................................... for the Crown P.

McCann ................................................................................... for the accused Gordon MacIsaac LAHAIE, J.: [ 1 ] Gordon MacIsaac is charged with one count of aggravated assault contrary to s. 268 of the Criminal Code of Canada. [ 2 ] There are a number of issues to be determined by this Court. [ 3 ] I will begin by providing an overview of the case and setting out the issues. I will then set out some of the rules in the Ottawa Senior Men’s Hockey League. I will outline the evidence and review the applicable law. Finally, I will provide the Court’s ultimate findings and conclusions.

Overview [ 4 ] The facts of this case unfold during a regular season hockey game played between the Pirates and the Tiger-Cats in a non-contact senior men’s hockey league in the City of Ottawa. In the last 47 seconds of the game, as the Pirates led by two goals, Mr. Drew Casterton, a forward on the Pirates team, sustained severe and lasting injuries following contact which occurred between himself and the accused. A number of witnesses from both teams testified at this trial as did one of two of the game’s referees. The accused also testified. [ 5 ] There are three issues to be determined in this case: 1.

Did the accused intentionally hit Drew Casterton? 2. If so, was the hit a blindside hit and was it intentionally directed at Mr. Casterton’s head? 3. Has the Crown proven beyond a reasonable doubt that the accused either intended to cause serious bodily harm or that the actions of the accused were of such a nature that consent could not be given, that is, that the intentional actions of the accused carried such a high risk of injury and objective foreseeability of bodily harm that there could be no implied consent? [ 6 ] The issue of whether serious bodily harm was in fact caused has been conceded.

The Ottawa Senior Men’s Hockey League Rules [ 7 ] The Rules of this League are set out in Exhibit 1 filed during this trial. The types of penalties which might be assessed are set out as well as the corresponding amount of time a player would be penalized for offending conduct. The most serious penalties, such as a game misconduct and a gross misconduct, carry a set number of penalty minutes and include immediate ejection from the game.

No individual penalties carry further game suspensions, but the rules provide that: All infractions occurring before, during and after any scheduled game are subject to review by the League. The League may assess suspensions at any time during the regular season and playoffs. [ 8 ] The issue of body contact is covered at p. 9 of the rules as follows: Deliberate body contact is not permitted anywhere on the ice. Any collisions or contact will be strictly a referee judgment call based on the following definition of contact: No player is entitled to use his body to intentionally body-check or bump an opponent.

A minor, Major and Game Misconduct or Match penalty at the discretion of the referee, shall be assessed to any player who body checks, boards or charges an opponent.

The Evidence [ 9 ] The Court heard from eleven witnesses. As expected, the accounts provided by each of the witnesses differ in some respects. The passage of time, the association of the witnesses to one team or the other, the location of each witness at the relevant time and the witness’ ability to observe, all must be taken into account when assessing the evidence. I will now set out the important aspects of the evidence of each of the witnesses. [ 10 ] Jonathan Desjardins was one of the game’s two referees.

Although he was not a certified referee, this witness had worked as a referee for approximately 600 games and had played hockey since he was a child, including one season in junior hockey and one season as a semi professional. Mr. Desjardins testified that the slogan for the Ottawa Senior Men’s Hockey League is “Hockey for Fun” and spoke of the rules forbidding body contact such as boarding or charging.

He set out the difference between minor penalties such as tripping, slashing and roughing, and major penalties, which included any action with demonstrated an intent to hurt another player or to take him out of the game. Mr. Desjardins explained the difference between a game misconduct penalty and a gross misconduct, the latter involving a player’s actions which would make a mockery of the game. Mr. Desjardins explained that a gross misconduct penalty would usually be followed by a suspension. [ 11 ] Mr.

Desjardins testified that he consulted the game sheet prior to preparing his report and that his report was completed within a day or two of the incident. According to Mr. Desjardins, the penalties handed out in this game were within the norm for this league and were only minor penalties up to the moment that Mr. Casterton was injured. He explained that the Pirates, the complainant’s team, were up 4-0 at the end of the 1 st period and that the Tiger-Cats made a comeback in the second period, coming to within 2 goals at the 18:26 mark when the Tiger-Cats scored a powerplay goal.

In this League, there are two periods of 22 minutes each. Therefore, the powerplay goal came with 3 minutes and 34 seconds remaining in the game. With 1 minute and 49 seconds remaining, there were offsetting minor penalties for slashing. [ 12 ] Mr. Desjardins described the incident as occurring after both Mr. Drew Casterton and the accused came into the Pirates zone, along the boards on opposite sides. He initially testified that Mr. Casterton was closest to the players’ benches and that both players skated towards the puck, which was behind the net.

He changed his testimony when he was shown his report to refresh his memory and later adopted the description given in his statement, which would have had Mr. MacIsaac coming in on the left side closest to the players’ benches and Mr. Casterton skating in from the right side to the sight of the collision behind the net. [ 13 ] Mr. Desjardins testified that he had a good view of the incident as he was deep in the Pirates zone. He stated that the Defendant lifted his skates off the ice and hit the victim after raising his arms and stated that both players were facing each other when the hit occurred. Mr.

Desjardins testified that the Defendant’s arms were high as he came into contact with the complainant’s head. Mr. Desjardins testified that he saw Mr. Casterton’s head whip back, and that he saw Mr. MacIsaac’s forearm (to his elbow) hit the victim’s head. He testified that Mr. Casterton was merely skating towards the puck when he was hit. Mr. Desjardins testified that he did not see the victim move away from the hit or brace himself which would not be surprising because in a non-contact league, players are not expecting to be hit as they skate for the puck. Mr.

Desjardins testified that he was absolutely certain that the accused’s skates left the ice and lifted approximately 6 inches off the ice as he delivered the hit. In Mr. Desjardins’ view, the victim did not see the hit coming. Mr. Desjardins testified that he saw the victim fall to the ice, flat on his back after the hit. [ 14 ] Mr. Desjardins told the accused to move away and called out for the arena staff to bring a first aid kit. He attended to Mr. Casterton and noted that half of his face was covered in blood as he had a cut to his lip, a cut to his chin and that his top two front teeth were partially missing.

Mr. Desjardins later found pieces of Mr. Casterton’s teeth on the ice near the location of the hit and brought them to the victim. Mr. Desjardins testified that Mr. Casterton wasn’t moving but that he was conscious. According to Mr. Desjardins, Mr. Casterton was confused but knew he was hurt. [ 15 ] Mr. Desjardins told all of the players who had gathered around the victim to move away to let the victim breathe. He wiped the blood away and put pressure on the bleeding wounds, talking to the victim to assess his condition. The victim was assisted off the ice and into his dressing room by his teammates and Mr.

Casterton still appeared to be “shaken up”. Mr. Desjardins then went to the time keeper to assess the penalties. [ 16 ] He testified that three of the players on the Pirates told him that the accused had announced that he had gotten the victim back for a hit earlier in the game. The Court received this evidence as part of the narrative as the comments figured in the referee’s decision in regards to the penalties. [ 17 ] Mr.

Desjardins assessed two major penalties against the accused, a ten minute penalty for a gross misconduct and a seven minute game misconduct or “attempt to injure” penalty, which resulted in Mr. MacIsaac’s ejection from the game. In practical terms, even if the game had continued, the consequences to Mr. MacIsaac were simply that he would not be permitted to play the final 47 seconds of the game. Mr. Desjardins explained that he assessed the latter penalty because of the manner in which the hit was delivered, with Mr. MacIsaac’s skates leaving the ice and his arms lifting to direct a blow to the victim’s head. Mr.

Desjardins testified that he had never seen a hit like the one delivered by the accused in this league. He had also never personally seen such severe injuries caused to any player. [ 18 ] Mr. Desjardins was not aware that the league strongly recommended that players wear full face cages but noted that the accused wore a full face cage while the victim wore a half visor. Mr. Desjardins stated that penalties are not assessed when collisions occur by accident. Rather, a penalty is called only where there is deliberate or intentional body contact, as was the case here. Mr.

Desjardins was vigorously cross-examined in regards to whether there would have been room to move out of the way and was adamant that there was enough space and time for a player to get out of the way of a collision. He maintained throughout that this was not a collision, but a deliberate hit by Mr. MacIsaac with his skates leaving the ice and his forearm striking Mr.

Casterton’s head with such force that his head whipped back, he fell to the ice, flat on his back with his face cut at multiple locations and parts of his teeth spread out on the ice, as he lay there disoriented with his face covered in blood. [ 19 ] Mr. Desjardins testified that he assessed the gross misconduct penalty as a result of hearing what the Pirates reported to him about

the accused’s comments after the hit, as this is exactly the type of situation which would make a mockery of the game, that is, an intentional violent hit delivered in retaliation for some other conduct. The game did not resume after the incident as only 47 seconds remained and the focus was on the injured player. Mr. Desjardins believed that the paramedics were called by the arena staff and that the police were called by the Pirates players. Mr. Desjardins testified that he would not have called the police as it is not his role to do so. [ 20 ] Drew Casterton is the complainant in this case. Mr.

Casterton grew up in Ottawa and moved to Austria with his family when he was a teenager as his father accepted a posting abroad. Mr. Casterton is 5’11.5” tall and weighed 185 lbs. He was a committed athlete who played many sports including hockey and volleyball. He played both contact and non-contact hockey at many levels including semi professional hockey in Austria and Switzerland. Mr.

Casterton completed a university degree in kinesiology and at the time of this incident, owned a business designed to assist people with mobility issues, weight loss issues and those who wanted the services of a personal trainer in their homes. [ 21 ] Mr. Casterton was involved with sports his whole life and was an organizer of sporting and outdoor activities within his group of friends. He bought a house with his brother near the canal so that he could run and skate daily. He was on a Dragon boat team and skied regularly. [ 22 ] Mr. Casterton played hockey as a right winger on the Pirates team.

He had been a member of the Pirates in the Ottawa Senior Men’s Hockey League for five years at the time of this incident and he was the team’s assistant captain. [ 23 ] Mr. Casterton recalled that, on March 15, 2012, the Pirates were playing the Tiger-Cats and that his team was winning at the half. He did not recall any major incidents leading up to the moment he was injured nor did he recall being part of any confrontations earlier on in the game. Mr. Casterton was not penalized during this game. [ 24 ] Mr.

Casterton testified that his team had not been able to protect its lead as well as they had hoped and stated that his team was heavily penalized in the second half of the game. Mr. Casterton recalled that the Tiger-Cats’ third goal was a turning point as the game then became rougher. [ 25 ] Mr. Casterton testified that in the seconds leading up to the hit, a Tiger-Cats player was carrying the puck into the Pirates zone and Mr. Casterton was back checking. He testified that the Tiger-Cats player tripped over John Clarke, a Pirates player, and lost the puck. Mr.

Casterton recalled that he picked up the puck within a second or two, skated with it for 10 to 15 feet and dumped it around the boards to his defenceman, Matt Hind, in the opposite corner. He began to skate around the net, intending to skate up ice along the boards where he might receive a pass. Mr. Casterton testified that he was looking towards the area on the right towards the hash marks as he was skating in that direction to get back into position, hoping to get 20 to 30 feet from Matt Hind to then receive the pass.

He testified that this was a non-contact league and that he did not worry about being blindsided and therefore, was not looking to his left. He knew there was no one in front of him and no one to his right as that’s where he was going, aiming to skate up ice along the boards on the right side. [ 26 ] Mr. Casterton testified that, as he made the turn around the net and while his defenceman still had the puck in the corner, he was struck on the left side of his face and immediately knocked out. Mr. Casterton testified that he did not see the hit coming at all.

He recalled waking up on his back and instantly knew that he was injured. He recalled hearing his brother Lee ask if he needed an ambulance and then only recalled being in his change room, half dressed, looking at his injured face in the mirror. [ 27 ] Mr. Casterton testified that the paramedics helped him remove the rest of his equipment, and taped and bandaged his face. The paramedics also transported him to the hospital. There, Mr. Casterton received sutures to his face and had a CT scan. There was no brain hemorrhaging. Photos of Mr.

Casterton’s face, depicting his cuts, stitches and missing portions of his teeth, were filed in evidence. Mr. Casterton suffered a concussion as a result of this incident. Severe headaches, lack of focus and an inability to complete his thought process have prevented Mr. Casterton from returning to work on a full-time basis. Mr. Casterton was unable to drive for a period of time. At the time of his testimony, 14 months after the incident, he was only working a tenth of the number of hours he was working before he was injured. Mr.

Casterton testified that he suffers from headaches every day and described them as debilitating. [ 28 ] Although Mr. Casterton tried to return to hockey, he was unable to continue playing as he had lost his sense of coordination, his balance and his ability to focus. Although sports were a central part of his life, Mr. Casterton had been unable to return to sporting activities in any meaningful way. He no longer organized activities, lost his business and could no longer provide for his ailing mother. Much evidence was led about Mr.

Casterton’s medical records, his appointments with specialists and his current condition. I will not outline any further evidence on this issue as it was conceded by Defence Counsel that Mr. Casterton suffered serious bodily harm as a result of this incident. [ 29 ] In cross-examination, Mr. Casterton explained that he wore a half visor instead of a full cage because it hindered his visibility when he wore a cage mask. Mr.

Casterton testified that he played in this non-contact league because deliberate body contact is not permitted, although he did expect some contact and conceded that collisions were possible, and he could be tripped, slashed and pushed as players jostled for the puck. [ 30 ] Mr. Casterton testified that in contact hockey, a player plays the game with his head up at all times as other players might hit him. Conversely, in the non-contact hockey, a player does not play with the same mindset as deliberate hits are not permitted. As a result, players are not engaged in similar heads up play.

In other words, there is no bracing for or anticipation of deliberate hits from other players. [ 31 ] David Winton was the Pirates’ goalie. He had played hockey with the Pirates in the Senior Men’s Hockey League for seven years. He also played in another recreational hockey league. Mr. Winton was the closest player to the collision when it occurred and estimated that Mr. Casterton was body checked three feet to Mr. Winton’s right as he stood in his crease. He described the game as an ordinary regular season game and testified that there were no confrontations leading up to the hit.

He believed that the score of the game was 4-3 or 4-2 and that his team was winning when the incident occurred.

[ 32 ] Mr. Winton was in his crease and saw the play develop along the boards. He believed that the puck was along the boards to his right. Mr. Winton was looking to his right at the moment of the hit as he was following the play which had moved to that side. He testified that Mr. Casterton came around his net, coming out on Mr. Winton’s right and that Mr. MacIsaac came in from the right side skating at half to full speed towards Mr. Casterton. According to Mr. Winton, Mr. MacIsaac leapt up, thrust his body forward and his arms upward as he directed a blow to Mr. Casterton’s shoulder and head area. Mr.

Winton testified that the accused’s arms came into contact with Mr. Casterton’s head. [ 33 ] Mr. Winton testified that in a non-contact league, a player would not expect to be hit in this deliberate fashion. [ 34 ] Mr. Winton testified that Mr. Casterton was thrust in the direction of the blow and ended up on his back. Mr. Winton inferred that Mr. MacIsaac’s cage did the damage to Mr. Casterton’s face but specified that he did not see which part of Mr. MacIsaac’s body hit Mr. Casterton as Mr. MacIsaac’s raised arms and elbows blocked his view of the actual point of contact. [ 35 ] Mr.

Winton testified that there was a melee of players cursing and pushing the accused after the hit as Mr. Winton went to attend to his injured teammate. [ 36 ] Mr. Winton viewed Mr. Casterton as a highly skilled player and stated that, in his view, Mr. Casterton could not have avoided this intentional and targeted hit. He described the contact as an attack and specified that it was not simply a collision given Mr. MacIsaac’s leap, the way he thrust his body forward as he raised both of his elbows and arms upward and into Mr. Casterton’s head, neck and shoulders. [ 37 ] Mr.

Winton testified that he had played in recreational hockey leagues for nine years and that he had never seen such a serious hit where a player intentionally thrust himself into another player’s head area. Mr. Winton continues to play for the Pirates. He testified that he had not seen much of Mr. Casterton since this incident although he had played hockey with him four times subsequent to this date. Mr. Winton found Mr. Casterton to be frustrated in his play as he could not perform as he had previously. [ 38 ] In cross-examination, Mr.

Winton was directed to the statement he made to police shortly after the incident where he stated that the accused “lifted his body into him” and “used his momentum to plow into Drew’s neck/head area while following through with both arms”. Although the word “leap” appears to have been suggested to Mr. Winton by the officer who interviewed him, Mr. Winton explained that the accused left his feet as he delivered the blow to Mr. Casterton. [ 39 ] Jonathan Clark was a defenceman who played for the Pirates. He was the player involved in the incident at the blue line, immediately before the final incident. Mr.

Clark played for the Pirates in the Ottawa Senior Men’s Hockey League for ten years and had played for the Ottawa Travellers before that. Mr. Clark had never played contact hockey and testified that in this non-contact league, he expected no more that incidental contact, nudging or bumping. He testified that he never expected anybody checking and that there was no fighting in this league. [ 40 ] Mr. Clark did not recall if the game was a playoff game or not.

He did not recall anything about the game which was out of the ordinary until the incident and described the game as fairly intense but that this was no different from every other game that season. Mr. Clark did not recall how many penalties were given out and he did not recall what they were for. [ 41 ] Mr. Clark testified that he was moving up towards the puck when he tripped and fell near the boards and a player on the Tiger- Cats tripped over him. The referee did not call a penalty. Mr. Clark testified that he got up as the puck went behind the net and he saw Drew Casterton curl in behind the net.

According to Mr. Clark’s evidence, there was at least one player from each team trying to dig the puck out of the corner as Mr. Casterton looked to that corner likely hoping to get a pass if the puck got loose. At that point, Mr. Clark saw the accused come up through the faceoff circle as he skated fairly quickly towards Mr. Casterton. Mr. Clark described the hit as a “line drive” right through Mr. Casterton as the accused put his arms up and sent Mr. Casterton to the ice. He testified that the accused’s legs were bent and that he then “stood tall” through the hit as his arms came up and forward towards Mr.

Casterton’s head as though he was finishing the check. He did not observe Mr. MacIsaac’s skates leave the ice but was not looking at the accused’s skates. What he noticed was that Mr. MacIsaac propelled his body upward, standing tall through the hit as he raised his arms up and forward as he delivered the hit. [ 42 ] Mr. Clark testified that Mr. Casterton was instantly levelled onto his back and that he was down and was bleeding. Mr. Clark did not recall a melee of players after the incident and he did not recall the referee ordering everyone to go to their bench. [ 43 ] Mr. Clark described Mr.

Casterton as being very athletic, an excellent skater who is very skilled. He testified that Mr. Casterton made no effort to evade the hit but that if he had seen it coming, he was certainly skilled enough to have avoided it. Mr. Clark testified that he had never seen or heard a hit like the one he observed that day, where a player does not get up right away after being hit. Mr. Clark had known Mr. Casterton for 10 years and described him as the organizer, a social and athletic person. Mr. Clark had seen Mr. Casterton since the incident at the occasional social function organized by Mr. Casterton’s brother. Mr.

Clark testified that Mr. Casterton was no longer energetic and no longer organized or participated in activities the way he used to. [ 44 ] Tyler Scott was a defenceman who played for the Pirates. Mr. Scott lived with the Casterton brothers and had played hockey with Drew Casterton for six years. Mr. Scott testified that there should be no risk of contact in a non-contact league and testified that he never signed a waiver to play in that league. Mr. Scott recalled that the game became more physical towards the end. At the time of the incident, Mr. Scott was sitting on the bench next to Mr.

Casterton’s brother, Lee. The Pirates bench was closest to the location of the collision. [ 45 ] Mr. Scott believed that Mr. MacIsaac and Mr. Clark were involved in the collision at the blue line immediately preceding the incident under review by this Court. [ 46 ] Mr. Scott testified that he did not see the collision but he saw Mr. Drew Casterton unconscious on the ice as one of the referees directed the accused off the ice. Mr. Scott testified that Lee Casterton and another player on his bench, Mike Beaupre, were yelling at Mr. MacIsaac as he skated past their bench and that he heard Mr.

MacIsaac say the word “retaliation”. He did not recall the exact phrase

but understood Mr. MacIsaac’s message back to the people who were yelling at him to be something like “I did this in retaliation for what your guy did to our player”. He described Mr. MacIsaac as appearing irritated and speaking loudly. He testified that the players on the Pirates bench called Mr. MacIsaac an idiot for what he had done and that they were swearing at him as he skated by. [ 47 ] Mr. Scott testified that he did not discuss what he had heard with anyone until he was contacted by police and gave them a verbal account over the phone of what he had seen and heard. Mr.

Scott sent his written statement to police shortly thereafter. [ 48 ] Mr. Scott testified that Mr. Casterton went from being an active sportsman and personal trainer to being a person who slept twelve hours per day. He testified that he used to work out with Mr. Casterton every day but that he had not done so since the incident. [ 49 ] In cross-examination, Mr.

Scott spoke of non-contact hockey as did many other witnesses in terms of saying that he had a job and he played non-contact hockey with a view to being able to get up in the morning and go to that job without worrying about being injured or injuring someone else, and that this was the reason he played in a non-contact league. [ 50 ] Lee Casterton is Drew Casterton’s brother. He also played for the Pirates and had been on this team for five years. Lee Casterton was sitting on the bench next to Mr. Scott and Mr. Beaupre when his brother was injured. Mr.

Casterton had played hockey since he was a small child and had played in both contact and non-contact leagues. Mr. Casterton provided his views in regards to the different approach a player takes when playing contact vs. non-contact hockey and spoke of the “heads up play” and readiness for impact required when someone chooses to play contact hockey.

Lee Casterton testified that, when playing in a non-contact game, he was definitely not consenting to body contact. [ 51 ] Lee Casterton testified that he saw his player, John Clarke, when he fell and slipped into the boards moments before the incident involving the accused. He stated that the Tiger-Cats player tried to get around Mr. Clarke but that he tripped over him. Lee Casterton believed that Mr. MacIsaac was the player who got tripped up at the blue line by Mr. Clarke. [ 52 ] Mr.

Casterton testified that he observed his brother get possession of the puck and shoot it around the back of the goalie to Matt Hind who was in the opposite corner. Lee Casterton stated that his attention was on Mr. Clarke as he was concerned that he may have been hurt when he slid into the boards. He testified that he observed Mr. Clarke get up and take 1 to 3 strides towards the net when he heard a cracking sound and saw that one of the players on his team was down. [ 53 ] Mr. Casterton testified that he turned to Mr. Scott and asked who was down and that Mr. Scott told him that it was Drew, his brother.

Lee Casterton asked Mr. Scott who did it and then saw Mr. MacIsaac as he skated towards their bench. Lee shouted at Mr. MacIsaac and used profanity. He testified that he wanted to jump over the boards to go after Mr. MacIsaac but that Mr. Beaupre held onto his jersey. Mr. Casterton testified that the accused extended his arms triumphantly as though he was asking what Mr. Lee Casterton wanted to do about it and as though he was taunting him, gestures which were not seen by any other witness. [ 54 ] Lee Casterton testified that when Mr.

MacIsaac was approximately five feet from him, the accused looked straight at him and stated “that’s retaliation for the trip”. Mr. Casterton testified that he knew at that moment that Mr. MacIsaac’s actions were criminal and that he would be calling the police. [ 55 ] Lee Casterton testified that he told the referee what Mr. MacIsaac had said about the hit being in retaliation for the trip. He also asked if police would be called and was told by the referees that this was not their role. Mr.

Casterton testified that he went to the dressing room and called the police. [ 56 ] Lee Casterton accompanied his brother to the hospital. He described the events which followed, which included calling a family friend who is a lawyer, as his parents were in Europe. Lee took care of his brother through the night and the next day, waking him regularly as Drew had a concussion. Mr. Casterton described the medical and dental appointments which followed and spoke of the physical challenges his brother experienced after the incident.

I will not outline these details, given the concession made by Counsel in regards to the injuries caused in that they amount to serious bodily harm. [ 57 ] Lee Casterton testified that he had never seen anyone injured in this fashion in the Ottawa Senior Men’s Hockey League. [ 58 ] Ryan Robinson was a member of the Tiger-Cats team in 2012. Mr. Robinson had played in the Ottawa Senior Men’s Hockey League for three years. Mr. Robinson had only played hockey in recreational leagues. He had suffered injuries such as a broken hand, bumps, bruises and stitches when he got a puck to his face. [ 59 ] Mr.

Robinson described the game on March 15, 2012, as being a “chippy game” with lots of penalties and scrums. He was playing left defence and the accused was playing right defence. Mr. Robinson testified that he was on the ice between center ice and the blue line in the Pirates zone when the collision occurred. He testified that both the complainant and the accused were going for the puck and that Mr. MacIsaac made contact with the other player when the puck was to the left of the net. From his vantage point, it appeared as though Mr. MacIsaac’s shoulder hit Mr. Casterton. Mr. Robinson testified that Mr.

MacIsaac’s hands were in front of him and that it was no more than a collision. He recalled that the Pirates players were very angry at Mr. MacIsaac after the play. He did not hear the accused say anything to players on the Pirates bench. He described himself as being at “center ice”. Mr. Robinson did not skate to the site of the collision. He testified that it happened all the time that players get knocked down and that he had seen and been involved in collisions like this one before. [ 60 ] In cross-examination, Mr. Robinson stated that Mr.

MacIsaac was out of position at the time of the collision since he was playing right defence but was deep in the Pirates zone, to the left side of the net. He believed that the complainant had crossed in front of the net. In his statement, Mr. Robinson wrote that the collision had occurred when the accused tried to protect the puck from the opposing player. [ 61 ] Kenneth Shouldice was a 31-year-old member of the Tiger-Cats team. He had played for the Tiger-Cats in the Ottawa Senior Men’s Hockey League for 3 or 4 seasons.

He had played hockey at many levels for 23 years and had worked as a referee from the age of 14 to 24 years. Mr. Shouldice had also played hockey with the accused at Carleton University.

[ 62 ] Mr. Shouldice testified that in a non-contact league, players understand that there could be contact along the boards and that anything can happen. He had been cross-checked in the face in the past and suffered a black eye despite the fact that he was wearing a full cage mask. [ 63 ] Mr. Shouldice testified that he was also playing defence and that he was just outside the zone on the left side. Mr. Shouldice’s diagram would have him playing left defence which calls into question which of Mr. Shouldice and Mr. Robinson was mistaken about being on the ice.

The complicating factor involves the fact that the police took no statements from any of the Tiger-Cats players throughout this investigation. A great deal more time passed between the incident and the making of the statements by the Tiger-Cats players than the Pirates players as the statements of the Tiger-Cats players trickled in over the course of many months after they were requested to complete statements by the accused. Specifically, Mr. Shouldice’s statement was provided approximately eight months after the incident.

Those who were questioned on the issue of how many defencemen were on the ice agreed that it would be unusual to have three defencemen on the ice when a team is rallying and hopes to tie the game. [ 64 ] Mr. Shouldice testified that the accused and the complainant were facing each other when the collision occurred. According to his evidence, the puck had been dumped into the zone and Mr. MacIsaac had gone after the puck into the Pirates zone. Mr. Shouldice testified that the accused did not drop his shoulder to check the complainant and he believed that the accused’s hands were down. Mr.

Shouldice testified that the accused did not throw himself into the other player and that the accused’s feet never left the ice. Mr. Shouldice testified that this was not a blindside hit delivered by Mr. MacIsaac. Mr. Shouldice testified that Mr. MacIsaac skated past him after the collision. Although he did not hear what the Pirates players said to Mr. MacIsaac, he recalled that Mr. MacIsaac’s reaction “was like “It’s a contact game. These things happen. It wasn’t intentional”.” Mr. Shouldice testified that although he did not recall Mr. MacIsaac’s exact words, that Mr.

MacIsaac did not use the word “retaliation” when he was addressing the Pirates players. Mr. Shouldice did not recall hearing the accused say the word “trip” as he skated by the Pirates bench. [ 65 ] In cross-examination, Mr. Shouldice agreed that the Ottawa Men’s Hockey League was a non-contact league and that deliberate body contact was not permitted anywhere on the ice. He also agreed that the players wanted to go to work after a game and were not expecting to be intentionally hurt. Mr.

Shouldice agreed that a deliberate blindside hit would be beyond the accepted play in the Ottawa Senior Men’s Hockey League and agreed that such hits have no place in that league but that players should be ready for them as they occur. [ 66 ] Mr. Shouldice testified that hits to the head are dangerous and that the issue of whether it was a blindside hit or not did not factor into that conclusion. He also agreed that there currently is much media attention paid to hits to the head in the NHL, minor hockey and the NFL. Mr. Shouldice did not recall who else was on the ice at the time of the collision.

He did not recall where the center or either of the Tiger-Cats wingers were, when the collision occurred. He recalled seeing the complainant skate behind the net and make an expected move up ice and he saw the accused hit him. According to Mr. Shouldice, the complainant did not raise his hands and just took the hit. [ 67 ] In re-examination, Mr. Shouldice testified that as a former referee, he did not believe that Mr. MacIsaac intentionally hit the complainant and that what he had observed was simply two players trying to get the puck.

He also testified that he would have called a penalty on the accused in this case because in his view, Mr. MacIsaac could have avoided the contact. He also opined that both players could have avoided the collision. [ 68 ] Andrew Cameron was a 34-year-old member of the Tiger-Cats team and was a lawyer. He had played hockey in both contact and non-contact leagues since he was 5 years of age including a traveling team while he was at Carleton University. Mr. Cameron played in recreational men’s leagues since he was at Carleton and the season in question was his second or third year with the Tiger- Cats. Mr.

Cameron testified that he met the accused when he played on this team and that he might go for a drink with the accused after a game. Mr. Cameron had prepared his statement approximately three months after the incident. [ 69 ] Mr. Cameron testified that the game between the Pirates and the Tiger-Cats on March 15, 2012, was a “chippier” game with penalties called for hooking, tripping, slashing and interference. A review of the game sheet revealed that he was correct in that recollection in that all of those types of penalties were called during that game. Mr.

Cameron commented that there were more penalties that should have been called but were not. As a result, emotions were running high throughout the game and players on both teams appeared aggravated that calls weren’t being made, according to this witness. [ 70 ] At the time of the incident, Mr. Cameron was on the Tiger-Cats bench and looking towards the play clock as he was concerned that time was winding down. As a forward, he was hoping to have an opportunity to be the sixth man in, if the Tiger-Cats goalie left his net. Mr.

Cameron testified that the accused was a defenceman and playing the point on the right side, when there was a scrum with three or four players contesting for the puck. Mr. Cameron testified that the accused skated in front of the Pirates goalie as he went in towards the scrum and that Mr. MacIsaac was in front of the goalie when he last saw him before the collision. Mr. Cameron believed that the victim was one of the players in the scrum trying to dig the puck out of the corner. Although he had described the puck as being in the left corner, Mr.

Cameron’s diagram depicted the puck as being at a 45 degree angle near the back of the net on the left side where he testified that at least three players jostled for the puck. [ 71 ] After the collision, Mr. Cameron saw the complainant on the ice. He testified that the Pirates players were shouting words of revenge like “you’re dead in the parking lot” or “you’d better watch out in the parking lot”, words that no other witness heard. [ 72 ] Mr. Cameron was emphatic when he agreed during cross-examination that deliberate hits are not a part of men’s recreational hockey. Mr.

Cameron testified that there is a difference in the way a player prepares for a contact game versus the way he prepares for a non-contact game in that a player involved in a contact game would be in a heightened state of awareness, anticipating possible hits. He agreed that a player in a non-contact league would be more vulnerable in a blindside hit situation because the heightened state of awareness would not be present. Mr.

Cameron also agreed that a blindside hit and a deliberate shot to the head would be beyond the accepted standard of play in a non-contact league because intentional applications of force of that nature are not acceptable. [ 73 ] Jason Shorey was a 32-year-old member of the Tiger-Cats team with a degree in civil engineering. He had played hockey in

both contact and non-contact leagues since he was 4 years of age. Mr. Shorey played in various men’s recreational leagues and had played for the Tiger-Cats for four seasons. Mr. Shorey did not associate with the accused outside hockey. Mr. Shorey provided his statement to the Defence Counsel nine months after this incident. [ 74 ] Mr. Shorey believed that the game in question was the team’s last game in the regular season and that the game became more competitive as it progressed. In Mr.

Shorey’s opinion, the referees were not calling enough penalties and this contributed to the tension on the ice and the high level of competitiveness. [ 75 ] Mr. Shorey was playing as a forward on March 15, 2012. He believed that his team was within one goal of the Pirates that night and trying to tie up the game or win. At the time of the collision, the score was actually 5-3. [ 76 ] Mr. Shorey testified that he and a spare player who had joined the team as a spare that night were coming up the ice in a two-on- two play, with the spare player, Mr. Tiran Matsubara carrying the puck in on the right side and Mr.

Shorey coming in on the left side. As Mr. Matsubara crossed the blue line, he tripped over the Pirates player and lost the puck. In cross-examination, Mr. Shorey testified that one of the Pirates players deliberately charged at the spare player who had the puck immediately before the incident and that the Pirates player hit their player into the boards, collapsing him into the boards, and that this was a serious infraction which was not called. Mr. Shorey believed that the player who had hit their player into the boards was Mr. Drew Casterton. Mr.

Shorey testified that this kind of play was happening throughout the game on both sides. [ 77 ] According to Mr. Shorey, the complainant picked up the puck and skated with it, carrying it around the net. Mr. Shorey testified that he was anticipating that the complainant would come around the net and shoot the puck around the boards. At that time, he observed Mr. MacIsaac skating between Mr. Shorey’s position in the faceoff circle and the net as he skated towards the complainant. Mr.

Shorey testified that he was assuming that the accused was going towards the player with the puck as the game was coming to an end, the Tiger-Cats were trying to win and Mr. MacIsaac was skating to get the puck. According to Mr. Shorey, the complainant dumped the puck into the left corner and when he noticed the accused, he turned and crossed his arms in front of his body to brace himself for the collision. Mr. Shorey testified that there were no players in the left corner and that Mr. Casterton fired the puck around the boards. Mr. Shorey testified that Mr.

MacIsaac also braced himself before the two men collided. Mr. Shorey did not see the hit as a deliberate hit and testified that he sees hits like that all the time. Mr. Shorey testified that he did not see the accused’s feet leave the ice and characterized this contact as a collision between two players who both braced for the hit. Mr. Shorey testified that the collision was unavoidable as the players were skating too fast. [ 78 ] Mr. Shorey testified that the remaining players held onto each other and jostled at the site of the collision and that the referee escorted the accused back to the bench. Mr.

Shorey testified that he was hit from behind into the boards by a Pirates player immediately after the collision. [ 79 ] The Defendant, Mr. Gordon MacIsaac , testified. He is a 30-year-old Ph.D. student at Carleton University. Mr. MacIsaac had played both contact and non-contact hockey since he was four years old. He had played in the Ottawa Senior Men’s Hockey League since 2008. In examination-in-chief, Mr. MacIsaac testified that he had not played hockey in this league since this incident because he was unwilling to consent to that level of risk to himself in the future.

He testified that he realized that he might suffer similar injuries to those suffered by Mr. Casterton and that he was not willing to subject himself to that risk and decided that he would no longer play in that League. In cross-examination, Mr. MacIsaac conceded that he had been banned from the Ottawa Senior Men’s Hockey League. Mr. MacIsaac explained that he did not mention this during his examination-in-chief because it was inconsequential as he had already decided that he would no longer play. The League’s decision was therefore unimportant. [ 80 ] Mr.

MacIsaac testified that he had hurt his back shoveling his driveway after Christmas and that he tried to return to the game in February 2012, but was still having trouble with his back. The game between the Pirates and the Tiger-Cats on March 15, 2012, was his first game back in a few weeks. Mr. MacIsaac testified that he was passive during the game as he did not want to hurt himself. He stated that when his team scored a couple of goals in the second period, they thought they might win and the game became more intense. Mr.

MacIsaac recalled that players yelled back and forth at players on the opposing team and that there were a few bad calls from the referee which increased the intensity of the game. [ 81 ] When asked about the expectations of body contact in this non-contact league, Mr. MacIsaac testified that he expected to be pushed and shoved and that body checking happens and is called as a penalty. [ 82 ] Mr.

MacIsaac testified that he signed a waiver to play in that league and that, in his view, the waiver was to be signed to absolve the league if he is injured, as the league could then demonstrate that he was prepared to accept the risk of injury. Mr. MacIsaac testified that the game intensified as the score got closer and that there were bad calls from the referee. He testified that the number of penalties awarded was on the high side and noted that the majority of penalties were awarded to the Pirates in the second half of the game. [ 83 ] Mr.

MacIsaac testified that, with approximately a minute and a half left in the game, his teammate to his right was carrying the puck into the Pirates zone along the boards. He stated that the Pirates player slid across and that the puck carrier tripped over him and lost control of the puck as it slid to the corner. Mr. MacIsaac testified that Mr. Casterton got the puck in the corner and went around the net as Mr. MacIsaac decided to make his trajectory to get the puck or poke it away. Mr.

MacIsaac testified that at the last moment, the victim made a sharp unexpected turn to move up ice and that he was shocked by the impact as he collided with the other player. Mr. MacIsaac testified that he was moving fast. He denied that his arms were raised and testified that his hands remained on his stick below his waist. He also denied that his skates left the ice. The Defendant testified that his face collided with Mr. Casterton’s face and that he was wearing a full metal cage whereas Mr. Casterton wore a half visor. He testified that the referee directed him away from the “kerfuffle” and back to his bench.

As he skated past the Pirates bench, he heard the Pirates players calling him a “fucking goon”, to which Mr. MacIsaac replied “Are you kidding me? That could have been any one of our players .” In a statement to police, Mr. MacIsaac was asked what he said as he went by the Pirates bench and he stated “I said something to the effect that it could have easily have been our player that was hurt on that play.” Mr. MacIsaac denied that he used the words “retaliate” or “retaliation”. Mr. MacIsaac testified that he was 100 percent sure he did not say “retaliate” but that he did not recall saying the word “trip”.

I find that Mr. MacIsaac had the incident at the blue line in mind as he spoke to the Pirates players as this is why he said “It could easily have been our

player that was hurt on that play.” [84] Mr. MacIsaac recalled that the game was cancelled at that point because a player was hurt and he went to his dressing room tochange. He testified that he was informed that the other team wanted police called and that he should wait around. Mr. MacIsaactestified that he waited and responded to police questions. He added that he did not have any intent and that this was a collision he couldnot have avoided. [85] In cross-examination, Mr.

MacIsaac reluctantly agreed with the Crown that blindside hits were dirty plays as the player would notsee it coming by responding “I guess” to a number of the Crown’s questions. When the Crown suggested that the danger of a blindsidehit is exacerbated in a league where no contact is permitted, Mr. MacIsaac replied that “I suppose an argument can be made for that”. Throughout cross-examination, Mr. MacIsaac repeatedly replied to the Crown’s suggestion that there was to be no contact in the OttawaSenior Men’s Hockey League by stating that it would be penalized. [86] When the Crown asked Mr.

MacIsaac whether he understood that if he delivered a blindside hit to someone who did not see itcoming, that he would likely hurt him, Mr. MacIsaac replied that he had not really thought about it before then or before that game. When the Crown suggested that deliberate blindside hits have no place in a non-contact league, Mr. MacIsaac replied that he agreed thatthey should not happen but that they do and that they are penalized. Mr. MacIsaac very reluctantly agreed that deliberate blindside hitshave no place or are unacceptable in a non-contact hockey league. [87] Mr.

MacIsaac testified that he was aware of the dangers posed by blows to the head and that the NHL had adopted a newheadshot rule in 2011, although he did not know the details. He testified that he wore a helmet and cage because of his awareness of thedangers of head shots and wanted to protect his own head. He accepted that he knew of the dangers of hits to the head before the gameon March 15, 2012, but that when he signed the waiver, he felt that he was consenting to any form of contact, including deliberateblindside shots to the head as these things happen. [88] Mr.

MacIsaac testified that he recalled his defensive partner yelling at the referee but that he was being passive during that gameand not yelling back. He testified that he was aware of the need to control his actions on the ice or he would be penalized. [89] Mr. MacIsaac agreed that he was penalized 41 penalty minutes in the 2011-2012 season, despite only playing 13 games. Hetestified that some players are penalized more than others and that the player’s position may play a role. When the Crown suggested thatMr. Shorey had 0 penalty minutes and that Mr.

Robertson, also a defenceman had 6 minutes of penalties in 18 games, Mr. MacIsaacpointed out that Andrew Solomon had 45 minutes of penalties in 20 games which was also high. Mr. MacIsaac pointed to the heavypenalties he received for misconducts and that such penalties have higher weightings. He also suggested that the Crown’s statistics werepulled from a small sample size and that the statistics did not reflect such factors as the referees getting it wrong and the fact thataccidents are also sometimes called as penalties. Mr.

MacIsaac also testified that when penalties are assessed at the end of the game, hemay not be advised as he skates off the ice with the rest of his team. There would be little to no consequence to him or the team if thepenalty is called at the end of the game. [90] Mr. MacIsaac was asked how many times he had injured another player and he replied that he was not sure. He was alsouncertain about the number of times he had received game misconduct penalties. When asked if receiving a game misconduct penaltywould be significant to him, Mr. MacIsaac shrugged his shoulders and reluctantly agreed.

When game sheets were shown to Mr.MacIsaac to see if he recalled certain situations, he testified that the calls made would be “according to the referee”. [91] Mr. MacIsaac agreed during cross-examination that he was out of position as a defenceman when the collision occurred but hestated that there was less than one minute left in the game and he was playing like there was a realistic chance to win. As a result, hejumped in the rush to take a pass so he assumed the position of a forward. He did not recall if a teammate of his went to a defensiveposition to cover for him as he drove to the net. Mr.

MacIsaac testified that he could see Mr. Casterton heading around the net and thathe was anticipating him going towards the corner as he went towards him, skating hard to play the puck. Mr. MacIsaac maintained thatMr. Casterton had possession of the puck when he collided with him. Mr. MacIsaac testified that he was probably skating too fast butthat it was Mr. Casterton’s unexpected sharp turn that made it impossible for him to avoid Mr. Casterton and the two collided. Mr.MacIsaac sustained no injuries and did not fall to the ice, whereas Mr.

Casterton was cut at multiple locations primarily on the left sideof his face, lost portions of his top teeth and fell to the ice on his back, hitting his head as his face was covered in blood. Mr. MacIsaactestified that there was no reason why Mr. Casterton would not have seen him coming as he was looking up the ice.

The Law and the Arguments Raised by Defence Counsel [92] The offence of aggravated assault is defined in the Criminal Code as follows: s. 268: “Everyone commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.” [93] The actus reus of the offence involves the intentional application of force without consent resulting in wounding, maiming,disfigurement or endangerment of life.

The mens rea of the offence includes the intentional application of force without consent and theobjective foreseeability of bodily harm. [94] I have thoroughly reviewed all of the cases filed by both counsel. [95] A review of these cases demonstrates that Courts are reluctant to impose criminal liability in the context of contact sports and awide

interpretation is given to implied consent. In R. v. C.C., [2009] O.J. 2216, Mr. Justice Duncan pointed out, at paragraph 9: On the other hand, it is a central purpose of the criminal law to protect individuals from unconsented invasions of their physical integrity– from assault: R. v. Ogg-Moss (1984) (SCC), 14 C.C.C. (3d) 116 (SCC). Instances where that protection is found to bewaived by the victim should not be lightly found. [96] At paragraphs 10 and 11, Mr. Justice Duncan went on to state:

Knowledge or expectation that violence that is well outside the rules of the game might occur is not the same thing as consent to suchviolence. I may know that if I take a shortcut through a bad neighbourhood that I run a risk of being mugged or shot, but that hardlymeans that I am consenting to it. If it were otherwise, in sports the line into criminality would be pushed ever forward with the latestviolent outrage serving to set the standard for that to which all future participants are deemed to consent.

It should be kept in mind that in most cases the inference of consent is left to be drawn solely from the fact of the victim’s participationin the game.

But consent to excessive violence and serious hurt must be regarded as exceptional; the competing and perhaps morereasonable inference is that the participant entered the game for its pleasures and benefits and had confidence that his opponents wouldact in a civilized manner, that the rules would be enforced by the presiding official and that gross violence would be deterred bysanctions, including the civil and criminal law. [97] Defence Counsel argues that players assume certain risks when they play fast paced sports and that there is an implied consent tocontact within and outside the rules of the game.

He argues that players do not consent to unprovoked savage attacks which result inserious injuries but that injuries per se are not the controlling factor in determining whether a crime has been committed during a hockeygame. [98] Defence Counsel relies on the decision of the Saskatchewan Court of Appeal in R. v. Cey (1989), (SK CA), 48C.C.C. (3d) 480, where the Court set out the relevant test to be applied to such situations involving sports.

At paragraph 33, the Courtwrote: Setting aside the defence available to an accused under ss. 244(4), and speaking generally, the state of mind of the accused while relevantwill not be especially significant to this inquiry and to this element of the offence. Whether the accused intentionally applied force to thebody of the victim must, of course, be determined in the context of that element of the offence; and if the body contact at issue should befound to have been unintentional, that of course will end the matter.

On the other hand, should it be found to have been intentional, thetrier of fact must then move on to determine whether the Crown has negative consent.

At that stage and for that purpose the accused’sstate of mind will form but one aspect of the whole of the circumstances to be looked to. [99] The Court went on to apply the test to the circumstances of that case, writing at paragraph 35: With respect, the trial judge ought to have addressed himself to the question of implied consent according to the general frameworkmentioned and ought to have determined as a matter of fact whether the action of cross-checking from behind across the back of the neck(assuming he found this to be the conduct intended by the accused), in such close proximity to the boards, and with such force as wasemployed, was so violent and inherently dangerous as to have been excluded from the implied consent. [100]At paragraphs 37-38, the Court stated: While the Jobidon case dealt with a consensual fight outside a bar and while the English reference case referred to activity outside ofsport, I see no reason in principle why the consent, express or implied, to assault in the context of a sporting event should not beconsidered similarly.

That is in sporting events as well the mere fact that a type of assault occurs with some frequency does notnecessarily mean that it is not of such a severe nature that consent thereto is precluded. In a sport such as hockey, however, I believe thetest may be more limited than in the Attorney General’s Reference case – that is, I think the alternate reference to “caused” to beinappropriate where actions to which there is implied consent may in extraordinary circumstances cause harm. Thus, in

summary, in view the Provincial Court judge ought to have directed himself to the question of whether there was express orimplied consent to this type of contact and whether the contact was of such a nature that in any event no true consent could be given. [101]The Cey decision, written by Gerwing J.A., is thoroughly reviewed by the Ontario Court of Appeal, in R. v. Leclerc (1991), (ON CA), 67 C.C.C. (3d) 563 (ONCA).

The Ontario Court of Appeal stated: 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 sportingactivity fall outside the standards which players impliedly agree to as an acceptable part of the game?

Gerwing J.A., writing for themajority, stated at p. 490 C.C.C., p. 179 W.W.R.: Ordinarily consent, being a state of mind, is a wholly subjective matter to be determined accordingly, but when it comes to impliedconsent 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 sothe scope of the implied consent, having to be uniform, must be determined by reference to objective criteria. [102] At p. 15 of 17, the Court continued: I agree with the majority judgment in R. v. Cey. It was quoted and applied by Corbett D.C.J. in R. v.

Cicacarelli (1989), (ON SC), 54 C.C.C. (3d) 121 (Ont. Dist. Ct.) where the scope of implied consent in a team sport such as hockey is helpfullydiscussed. The weight of judicial authority appears to be that a player, by participating in a sport such as hockey, impliedly consents tosome bodily contact necessarily incidental to the game, but not to overly violent attacks, all of which should be determined according toobjective criteria. See also R. v. Watson (1975), (ON CJ), 26 C.C.C. (2d) 150 (Ont. Prov. Ct.) and R. v. Maloney(1976), (ON CJ), 28 C.C.C. (2d) 323 (Ont G.S.P.) which were decided before R. v. Cey.

Conduct which evinces adeliberate purpose to inflict injury will generally be held to be outside of the immunity provided by the scope of implied consent in asports 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 negativeimplied consent, the prosecution has the burden of proving a deliberate purpose or resolve to inflict injury. [103] Defence Counsel argues that the state of the law on the issue of consent has recently been redefined for cases of aggravatedassault in the matter of R. v. McDonald, 2012 ONCA 379 , [2012] O.J. No. 2504.

This case involved a fact situation outside ofsport. In the McDonald case, the accused had been in line at a Subway restaurant for some time when the complainant entered and

jumped the queue. McDonald told the complainant to move to the back of the line and when the complainant ignored the accused’s comments, the accused put his hand on the complainant’s shoulder and again told him to move. The complainant then grabbed the accused’s hands and refused to let go. As the accused struggled to get free, he managed to get the complainant into a chokehold position as he tried to move him to the back of the line.

As the accused released his hold on the complainant, the complainant fell backwards, hit his head and sustained a life-threatening brain injury from which he had yet to recover. [ 104 ] In that case, the Court of Appeal analyzed the issue of “consent” and reviewed the cases of R. v. Paice, R. v. Jobidon and R. v.

Quashie , none of which involved events occurring during a sporting contest. [ 105 ] Defence Counsel relied on the following determination made by the Court of Appeal: Accordingly, following Paice and Quashie , consent is vitiated only when the accused intended to cause serious bodily harm and the accused caused serious bodily harm. The defence of consent may, if the facts support it, be available in the context of a charge of aggravated assault.

In the case at bar, in my view, the trial judge erred by removing the defence of consent from the jury for its consideration on the charge of aggravated assault. [ 106 ] Defence Counsel argues that in order to convict his client, the Court must find that the Crown has established beyond a reasonable doubt that the accused caused serious bodily harm and intended to cause serious bodily harm. Defence Counsel relies on the decision in the matter of R. v. Zhao (2013), ONCA 293 for the same proposition.

Findings and Conclusions [ 107 ] In order to determine what happened at this hockey game, I must assess both the credibility of witnesses and the reliability of their evidence. In doing so, I can accept all, some or none of the evidence of any witness. I believe that most of the witnesses were honest people attempting to provide their evidence as best they could. There was definitely a bias with respect to most of the players’ evidence which favoured either the complainant or the accused depending on whether the witness was a Pirate or a Tiger-Cat.

This was particularly evident as the witnesses spoke of their own personal level of acceptance of risk of injury. [ 108 ] I did not find any bias with respect to Mr. Desjardins. Mr. Desjardins did not know these players and has had no contact with them since this date. He was the only completely neutral witness. In his game report, Mr. Desjardins got the player’s name wrong and wrote that Adam Solomon was the assailant; Solomon was no. 17 and MacIsaac was no. 11. He corrected his error within the same report. I was not troubled by this error. [ 109 ] Mr. Desjardins was certain that this was a head shot.

From his position, free from obstructions, he was able to see whether the accused’s skates left the ice. He testified that the rules are there to protect the players. As this was a deliberate head shot with an attempt to injure, there was a penalty. I accept that Mr. Desjardins assessed that penalty in the contemporaneous fashion that he did, because this is what he saw. [ 110 ] Mr. Desjardins’ evidence differed from that of other witnesses on the issue of the position and path of travel of the accused and the victim. According to his evidence, the players were heading towards the puck which was behind the net.

He also did not recall any player being tripped at the blue line immediately before the incident. Other than his evidence in regards to the play leading up to the hit, I accept his evidence in its entirety. He is a neutral witness with no allegiance to any player. He completed his report very shortly after the incident and was focused on the incident and the injured player at a time conducive to observation and retention of key information. Details such as the trip at the blue line which he either did not see or did not see as a violation would not be retained in his memory after a lapse of time.

What he retained was the key incident and I find that he retained those details accurately. I find his evidence both credible and reliable. [ 111 ] Mr. Drew Casterton’s evidence was clear and internally consistent. His recollection of the event is consistent with his injuries. He did not overstate his evidence or try to fill in details where he could not recall what had happened, for example, at the moment of impact. I found Mr. Casterton to be a credible witness and I found his evidence to be reliable. I accept Mr. Casterton’s evidence in its entirety. [ 112 ] I find that Mr.

Casterton did not have the puck and that he had shot it around the boards to his defenceman in the opposite corner. This version of events is most logical and was shared by other witnesses. It also explains why he did not see Mr. MacIsaac as he was not looking to manoeuvre around him. Mr. Casterton looked towards the hash marks on the right side as he rounded the net as he was skating in the direction where he hoped to receive a pass from his teammate in the corner. The injuries to Mr. Casterton’s face corroborate this version of the evidence as the lacerations are to the left of Mr. Casterton face.

This was not a face to face “head on” collision. [ 113 ] Mr. Winton, the Pirates’ goalie was the closest player to the hit. He did not recall the score of the game at the moment of the hit but given the dramatic event which occurred, one would expect that such a detail would fade from memory with the passage of time. I find that Mr. Winton clearly saw and retained the details of the collision as it was remarkable and happened very close to his position and vantage point.

As the goalie, he would have been looking for the location of the puck and his head would have been turned in the right direction at the relevant time. [ 114 ] I find that Mr. Winton correctly recalled that the puck was not in the possession of Mr. Casterton at the moment of impact as he would be following the puck as the goalie. I find that Mr. Winton correctly noted that Mr. MacIsaac leapt up and thrust his body forward with his arms in an upward motion as he delivered a blow to Mr. Casterton’s shoulder and head area. Mr. Winton’s evidence with respect to the blow is consistent with the evidence of Mr.

Desjardins and is consistent with the injuries suffered by Mr. Casterton. [ 115 ] Mr. Winton did not try to fill in, with certainty, which parts of Mr. MacIsaac’s body actually came into contact with Mr. Casterton’s face, stating that Mr. MacIsaac’s raised arms blocked his view. This is logical and I find that it is accurate and supported by the evidence. Given Mr. Casterton’s skill level, I find that Mr. Winton’s evidence was accurate when he testified that, had Mr. Casterton seen Mr. MacIsaac, he could have gotten out of the way. Mr. Winton’s evidence supports Mr. Casterton’s evidence and contributes to

this Court’s finding that this was a deliberate blindside hit to Mr. Casterton’s head. [ 116 ] Mr. Winton did not appear as biased as some other players in regards to being a Pirate as opposed to a Tiger-Cat. This witness was nothing more than an acquaintance of Mr. Casterton’s. What he did not recall, because of the passage of time and because it was not as important, was the positioning of the other players at the relevant time and this is to be expected as it was not remarkable. I found Mr. Winton’s evidence to be both credible and reliable. [ 117 ] Mr.

Clark did not recall very many details one would expect him to recall. He clearly recalled the incident which involved his actions at the blue line. Although Mr. Clark’s evidence corroborated the evidence of Mr. Desjardins and Mr. Winton in regards to the deliberate nature of the hit, I did not place much weight on his evidence as I found that this witness had difficulties with recall and would not have been in the best position to see the hit he described. [ 118 ] Mr. Scott was a more biased witness as he lived with the Castertons.

I reject his evidence on the issue of his actually having heard the word “retaliation”. I find it incredible that he would not have spoken to anyone about what he had heard until he was contacted by police. He lived with the victim and his brother and this key point would have been the topic of discussion around the house. As a result, I place no weight on this witness’ evidence in regards to the words spoken by Mr. MacIsaac as he skated by the bench. I accept his evidence in regards to the physical consequences to Mr. Casterton following this incident.

He would have seen his friend on a daily basis and I did not find that he overstated his evidence in this regard. [ 119 ] I find that Mr. Lee Casterton overstated the accused’s physical actions and demeanor as he skated by the Pirates bench. Lee Casterton was obviously upset that his brother was injured and screamed and cursed at the accused. Lee Casterton did not minimize his evidence in this regard. [ 120 ] I find that Lee Casterton correctly recounted that Mr.

MacIsaac, upon being cursed at and called out, spoke of his actions being in response to the actions of the person who took the Tiger-Cats player out at the blue line. Mr. Casterton immediately reported what he had heard to Mr. Desjardins. Mr. Desjardins recalled that Pirates players reported the comments to him immediately and that this played a role in his assessment of a gross misconduct penalty. I find that Mr. Casterton would not have had the presence of mind to make this up if it had not been said, as his brother was laid out covered in blood on the ice.

This evidence is also corroborated by the evidence of Mr. MacIsaac himself when he told police that he responded to the Pirates by saying that “it could have easily have been our player that was hurt on that play .” [ 121 ] Mr. Casterton testified and the Court finds that it was upon hearing these words that Mr. Casterton determined that police would be called. Mr. Casterton did not say that he saw his brother and determined that police would be called at that moment.

Rather, it was the moment that he heard the accused utter a pronouncement that his actions were not dissimilar to what had happened at the blue line that Mr. Casterton concluded that he had to report what had been said. This is very reliable evidence which is logically connected to the events which followed and which is corroborated by the accused’s own words to police. [ 122 ] I reject Mr. Robinson’s evidence in regards to his observations of the hit. I am not prepared to find beyond a reasonable doubt that Mr.

Robinson was on the ice as it was not logical that three defencemen would be on the ice in the last minute of the game when the Tiger-Cats were down by two goals. If Mr. Robinson was on the ice, his position was not conducive to observing what he described. Mr. Robinson testified that the complainant crossed in front of the goalie, something no one else described and he stated that the accused’s shoulder hit Mr. Casterton and caused the injury. [ 123 ] Mr. Robinson testified that the accused’s hands were down which he could not have seen as, according to his location, he would have been observing Mr.

MacIsaac from the back. Mr. Robinson minimized the severity of the collision and recorded that Mr. MacIsaac was protecting the puck from the opposing player. I reject Mr. Robinson’s evidence in its entirety as he appears to have been watching some other event. His evidence was both biased and unreliable. [ 124 ] Mr. Shouldice testified that he was the other defenceman on the ice at the relevant time. He provided his statement eight months after the event. Mr. Shouldice testified that he did not observe the accused’s skates leave the ice and found that the accused did not deliver an intentional hit.

He also testified that the accused and Mr. Casterton were facing each other when the collision occurred. [ 125 ] I find that Mr. Shouldice was on the ice at the time of this incident but that his location and distance from the point of impact did not allow him to see what transpired. Mr. Shouldice was close to center ice when the collision occurred. The puck was in the left corner. He was not in a position to make the call as to whether the hit was deliberate as he attempted to do during his testimony cloaking himself as an experienced referee. [ 126 ] Mr.

Shouldice was also internally inconsistent as he testified that he would have called a penalty on the accused because he believed that Mr. MacIsaac could have avoided the hit while also stating that Mr. MacIsaac did not intentionally hit Mr. Casterton. Mr. Shouldice also testified that both players could have avoided the collision. Mr. Shouldice’s evidence was also illogical when he said that both players faced each other yet did not move to avoid the collision. Mr. Shouldice’s evidence that both players faced each other is also inconsistent with Mr.

Casterton’s injuries as depicted in the photographs and with the way Mr. Casterton fell to the ice, as described by Mr. Desjardins and Mr. Casterton. [ 127 ] Mr. Shouldice testified that he heard Mr. MacIsaac speak as he skated to the bench and that he said words to the effect that this was “a contact game. These things happen and it wasn’t intentional.” No other person testified that any of these words were spoken. I did not find Mr. Shouldice’s evidence reliable and I reject it. [ 128 ] I find that Mr. Cameron accurately described the frustrations and chippiness of the game and how emotions were running high.

He correctly recalled the types of penalties being called and provided the evidence in a clear fashion. His characterization of the game as becoming increasingly intense is also corroborated by most if not all of the witnesses. [ 129 ] I do not accept Mr. Cameron’s evidence in regards to the play that was unfolding. He described several players contesting for the puck and no other witnesses made this observation as occurring behind the net as he described. Mr. Cameron conceded that his

attention was focused on the play clock as he waited on the Tiger-Cats bench hoping to jump onto the ice to join the play as the sixthattacker. Mr. Cameron was also one of the furthest players from the play when it was unfolding. Mr. Cameron also testified that thePirates players were threatening to harm Mr. MacIsaac in the parking lot, words that no other witness reported hearing. Mr. Cameron’sevidence in relation to the incident and the exchange which followed was not reliable and I reject his evidence. [130] Mr. Shorey clearly recalled the trip which occurred at the blue line immediately before the collision.

He was mistaken inregards to Mr. Casterton being the player who tripped up the Tiger-Cats player. He was also mistaken when he testified that his teamwas down by one goal at that point and hoping to tie up the score. Mr. Shorey provided his statement nine months after the incident. [131] Although Mr.

Shorey calmly described the event at the blue line in very neutral terms when he described it the first time, hebecame more animated and provided a biased version of that event as he progressed through his testimony stating that the Pirates playerdeliberately charged at their player, collapsing him into the boards commenting that this infraction was not called by the referee. I findthat Mr. Shorey was frustrated by the missed call and that this is the event most clearly retained in Mr. Shorey’s memory. He wanted towin that game and was frustrated by the missed call. Mr.

Shorey testified that the complainant did not have the puck at the time of thecollision and that both players braced themselves as they collided. [132] Mr. Shorey also minimized the seriousness of the hit to the complainant, testifying that he sees hits like that all the time. Mr.Desjardins’ evidence to the effect that this was the most serious hit he had seen in this league stood in stark contrast to Mr. Shorey’scharacterization. Mr. Casterton’s injuries were inconsistent with the hit described by Mr. Shorey and Mr. Shorey’s evidence wasinconsistent with the evidence of Mr. Desjardins, Mr. Winton and Mr.

Casterton which I accept. [133] I find Mr. Shorey to be a biased witness who claimed to have seen an unremarkable hit between two players who were bracedfor it. His evidence was not reliable with respect to the hit. However, I find that his evidence was reliable with respect to the frustrationand his teammate including the accused were feeling when the call was not made for the trip at the blue line. [134] I have directed my mind to the decision of the Supreme Court of Canada, in the matter of R. v. W.(D.) (1991), (SCC), S.C.J.

No. 26, which sets out the well-established standard to be applied by a trial court when assessing credibility. Where theCourt believes the evidence of the accused, obviously, the Court must acquit. If the Court does not believe the testimony of the accusedbut is left in reasonable doubt by it, the Court must acquit.

Finally, even if the Court is not left in doubt by the evidence of the accused,the Court must ask whether, on the basis of the evidence which the Court accepts, the Court is convinced beyond a reasonable doubt bythat evidence of the guilt of the accused. [135] I reject the evidence of the accused as it was illogical and inconsistent on key points. [136] Mr. MacIsaac was a defenceman who was out of position both because he was deep in the other team’s zone and because hewas on the wrong side. It defies logic that Mr.

MacIsaac, a defenceman, would have gone to the net in the hopes of scoring a goal andthat he would be skating with such lack of control. I reject the accused’s evidence that Mr. Casterton made a move which was notpredictable and that Mr. MacIsaac was skating in so quickly to get the puck that he could not avoid the collision. [137] Both Mr. MacIsaac and Mr. Casterton were experienced and skilled hockey players. If Mr. MacIsaac was skating in to score agoal or to poke the puck away, he would have had to have more control over his speed than he purports to have had. If Mr.

Casterton hadseen him coming, he would have skated out of the way. I find that the play as described by Mr. MacIsaac did not happen. Mr.MacIsaac’s evidence in relation to the play is not consistent with the injuries sustained by the complainant and it is not consistent withthe evidence of Mr. Desjardins and Mr. Casterton which I accept. [138] Mr. Casterton’s head was clearly turned to the right as he rounded the net and skated towards the hash marks to receive a pass. Mr. Casterton’s injuries are consistent with this finding as the injuries were on Mr. Casterton’s left side. I also reject Mr.

MacIsaac’sassertion that Mr. Casterton had the puck because it would be illogical for Mr. Casterton to not see Mr. MacI

[…]