2013 QCCQ 9971, 2013 QCCQ 9971

Unofficial English Translation R. c. Thériault 2013 QCCQ 9971 JD 2570 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF LOCALITY OF SAINT-FRANÇOIS SHERBROOKE "Criminal and Penal Division" No.: 450-01-068345-110 DATE: August 30, 2013 ______________________________________________________________________ PRESIDED BY: THE HONOURABLE PAUL DUNNIGAN, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v.

JOËL THÉRIAULT Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Joël Thériault is charged with assault causing bodily harm to A. L., on September 24, 2010, in Sherbrooke, thereby committing the indictable offence set out under

section 267 (

b) of the Criminal Code . [ 2 ] The fact that L. suffered bodily harm that day after he was body checked by the accused during a pre-season Ligue Nord- Américaine de Hockey (“ LNAH ”) match is admitted by the defence. [ 3 ] Thus, the only issue to be decided is whether or not the Crown has proved beyond a reasonable doubt that the accused intentionally used force against L. without his consent. [ 4 ] The act in question was filmed and the resulting video was filed in the record. [ 5 ] The Crown argues that, in addition to what can be observed visually, the comments of the accused from the penalty bench just beforehand demonstrate that it was a [ translation ] "gratuitous act of violence" constituting not only a violation of game regulations, but also an [ translation ] "offence outside of sport". [ 6 ] Counsel for the accused argues instead that it is an [ translation ] "accidental act, occurring in the heat of the moment when players were battling for the puck near the boards" and that L. was aware of [ translation ] "the high risk of injury associated with this tough league", which he knowingly accepted.

BACKGROUND [ 7 ] L. has been playing hockey since the age of three; he played the sport at the highest levels of each category until the age of sixteen, at which point he played in the Midget AAA league and then two years in what is referred to as Junior AAA while completing his collegiate studies. [ 8 ] He received a scholarship from Michigan Tech in the United States, where he played for that university's team for four years. [ 9 ] At the end of his degree in mechanical engineering from Michigan Tech, and having failed to be drafted by an East Coast League team, he returned home to Magog.

He has not given up on having a career as a professional hockey player.

[ 10 ] In the fall of 2009, Jean-François Grégoire , managing director of the Sherbrooke Saint-François team in the LNAH, called L. and offered him a position as a regular player in his organization. [ 11 ] L. answered that he was [ translation ] "more or less" interested because of all the fighting in that league; he concedes that he knew that at the time penalties were being handed out for high sticking, charging, attempting to injure, checking from behind, dangerous checking, and even interfering with officials. [ 12 ] Karl Simard , who refereed the match during which L. was injured by the accused, testified at trial that it is an "ultra-tough" league. [ 13 ] L. explains that Grégoire convinced him, however, that the players who [ translation ] "really wanted to play hockey" could do so.

L. also accepted the salary he was offered, $250 per match. [ 14 ] Although he had previously sustained a concussion while playing at Michigan Tech when he was pushed into the boards by a player on the opposing team, L. chose to play with a half-visor helmet, like the majority of players in the LNAH even though he was aware that wearing a full-face visor reduced the risk of injury.

In fact, the rules of the league in which he had played with Michigan Tech required full-face protection and prohibited fighting. [ 15 ] L. therefore joined the ranks of the Saint-François team during the 2009-2010 season, with about thirty matches left to play. [ 16 ] L. refused an invitation to join a professional team in Arizona for the 2010-2011 season because he believed that the calibre of that league was not high enough and the salary offered was the same as the one he was receiving here in Quebec. [ 17 ] Instead, he went to the Saint-François training camp to join that team for a second season, to try to rack up as many points as possible, and to maximize his chances of getting a contract in Europe. [ 18 ] On September 24, 2010, L. played his third pre-season match, which pitted his team against the Thetford Mines Isothermics. [ 19 ] At trial, L. states that the first period [ translation ] "went very well, there were no incidents, it was a normal first period of hockey".

It is noteworthy that a consultation of the [ translation ] "scoresheet" and the penalties that were given reveals that the definition of normal is relative. [ 20 ] At 4 minutes and 45 seconds into the second period, the accused was handed a two-minute minor penalty for elbowing. [ 21 ] The witnesses for the Crown who testified as to the events that occurred subsequently are not entirely consistent. [ 22 ] The timekeeper Michaël Langlois stated that he heard the accused, who was [ translation ] "hectoring [the head referee] from the penalty box", saying: [ translation ] "I'm gonna show you a real penalty". [ 23 ] Although Langlois twice stated that the accused was alone in the penalty box, on cross-examination, after his attention was drawn to the scoresheet, he admitted that another player for the Isothermics was also serving a penalty that had not yet run out when the accused went to the box. [ 24 ] The announcer Maxime Lalonde also claims to have heard: [ translation ] "I'm gonna give you a real reason to give me two minutes, you're gonna have a good reason to give me a penalty, or something like that.

As soon as I'm outta here, I'm gonna get the first guy I see, or something like that". [ 25 ] He added that the accused repeated these remarks at least four times as the referee skated past the penalty box. [ 26 ] Lalonde is the only witness to point out that the linesmen [ translation ] "tried to calm" the accused, that he was standing for the whole penalty, that he was [ translation ] "really angry" and [ translation ] "over-excited", and that one of the linesmen must have told him: [ translation ] "Calm down, calm down, if you don't, we'll have to kick you out". [ 27 ] Steve Gosselin was the official scorer that night.

He was seated with the timekeeper Langlois and the announcer Lalonde in a glassed-in box near the boards, right next to the penalty box. [ 28 ] Gosselin indicated that the accused was [ translation ] "a bit frustrated or angry for having been handed a penalty", but that he was not [ translation ] "violent or excessive" and that he remained seated during his penalty and only got up in the last 15 or 20 seconds, [ translation ] "which is normal". [ 29 ] The same witness is of the view that the accused [ translation ] "was in a hurry to get back to the game ... not ... to prove anything to anybody, but merely to get into the fray ... probably not any more impatient than what you would normally see ... in any hockey player who is a proud competitor ... [who] does not want to spend too much time in the penalty box". [ 30 ] Gosselin does not remember hearing Thériault make any remarks whatsoever. [ 31 ] For his part, Sébastien Laplante was a linesman; he was the one who accompanied the accused to the penalty box that time.

Laplante stated that the accused was calm. He did say, however, that in this league, [ translation ] "the play is tough ..., but every year, it gets a little better". [ 32 ] The testimonial evidence concerning the direction and path taken by the accused as he exited the penalty box is also inconsistent. The successive versions given by the witness Lalonde on this subject vary from one to the other. [ 33 ] The video sequence is without a doubt the most probative evidence in this respect. The Court adopts the

summary prepared by counsel for the accused:

[ translation ] 1:35 p.m . [1] The puck is cleared by a Thetford Mines player into the Saint-François zone; 1:39 p.m . A. L. takes the puck. Two more players from his team are in the Saint-François zone; 1:40 p.m . A. L. takes the puck and goes around his own net. Joël Thériault's penalty is over. Thériault skates up to the Sherbrooke team's face-off circle and meets another Sherbrooke player who does not have the puck. This player skates between A. L. and Joël Thériault. Thériault turns left to go after the puck, which is carried by A. L., who is close to Joël Thériault but there is no contact between them.

Thériault is behind A. L.; A. L. heads toward the Thetford Mines zone. He gets to the blue line. Joël Thériault is still behind him and tries to make him lose the puck. Thériault's stick is in front of L.'s body; Simon Robidas is near A. L. and Joël Thériault between the blue lines. Robidas gets between L. and Thériault. A. L. continues to skate toward the Thetford Mines zone. Joël Thériault slows down and moves to Robidas' left; A. L. crosses the blue line. A defenceman from the Thetford Mines team is in front of him; A. L. and the defenceman are at the top of the face-off circle in the Thetford Mines zone.

The puck touches the blade of the defenceman's stick and is slowly pushed away toward the boards to the right; The Thetford Mines defenceman and A. L. come into contact. Neither one of them has the puck. They are now at the bottom of the face-off circle; Thériault is alone. A player from the Sherbrooke team places himself in front of him. L. turns to skate to the puck, which is free against the right-hand boards; Thériault takes two or three strides and goes for the puck; 1:50 p.m. A. L. takes the puck and with his backhand pushes it along the boards, he turns his back; 1:51 p.m. Body check from behind. A.

L. falls to the ice; (Verbatim reproduction.) [ 34 ] This recital is corroborated in part by the testimony of L. and his teammate Simon Robidas . [ 35 ] Ultimately, after watching the video again, L. confirms that there was about one second [ translation ] "between the time the puck was free along the boards where an Isothermic player had just sent it and the body check".

He adds that because he is left-handed, he had no choice but to turn his back on Thériault just before the body check. [ 36 ] As for Robidas , the Court accepts from his testimony his admission that he [ translation ] "got on the ice to pick a fight" with the accused as soon as the latter left the penalty box.

He points out that instead the accused [ translation ] "played the game" and [ translation ] "skated by him and continued to play" despite a clear invitation to fight. [ 37 ] Asked by the Crown to describe [ translation ] "the specific actions" of the accused at the time of the body check, Robidas answered: [ translation ] "well, specific actions, a body check, when the puck is cleared to the back of the zone, checking happens, often the player... it happens all the time, the player comes up, he might take a few strides and then he'll hit the player who has the puck". [ 38 ] Asked whether [ translation ] "there is anything else to say about the attitude that the accused may have had on the ice", Robidas answered, [ translation ] "no, I mean we were playing hockey, it's a contact sport". [ 39 ] He added in cross-examination that [ translation ] "it happened really, really quickly", as it happens [ translation ] "every time". [ 40 ] Luc Lachapelle , who testified as an expert witness, has been a referee for 27 years in the Quebec Major Junior Hockey League, in world championships, and in the National Hockey League.

He watched the video in question. [ 41 ] He asserts that, in the circumstances, to do his job properly, Thériault had to hit L. He is of the view that L. turned [ translation ] "at the last second", that Thériault was then [ translation ] "sliding", and that he had to stop but could not because he was [ translation ] "too close". [ 42 ] In response to the question [ translation ] "if A.

L. had not turned around in that fraction of a second and Thériault had done exactly the same", Lachapelle answered: [ translation ] "the body check would have been regulation". [ 43 ] On the facts, L. suffered an injury to his face. There was a pile-up, Thériault was thrown out of the game, and the referee gave him a major penalty for checking from behind, deeming it to be [ translation ] "extreme misconduct". [ 44 ] Linesman Stéphane Chagnon escorted the accused to the players' room.

He described him as calm and cooperative. [ 45 ] In the following days, the accused was given a three-match suspension from the League, which the members of the Saint- François organization felt was clearly insufficient. [ 46 ] Two months later, despite a broken cheek bone requiring surgery, L. is playing again, with a full-face visor.

ANALYSIS [47] It is evident that players in a so-called semi-professional hockey league accept that the players on the opposing team willintentionally use force against them and that there are certain inherent risks in this context. [48] The decision of Fitzpatrick J. of the Ontario Court of Justice in Regina v.

Green[2] concerning facts that occurred during aNational Hockey League match in 1969, described the existing state of affairs: 12 There is no doubt that the players who enter the hockey arena consent to a great number of assaults on their person, because thegame of hockey as it is played in the National Hockey League, which is the league I am dealing with, could not possible [sic] be playedat the speed at which it is played and with the force and vigour with which it is played, and with the competition that enters into it, unlessthere were a great number of what would in normal circumstances be called assaults, but which are not heard of.

No hockey player enterson to the ice of the National Hockey League without consenting to and without knowledge of the possibility that he is going to be hit inone of many ways once he is on that ice. 13 … One now gets the most difficult problem of all, in my opinion: since it is assumed and understood that there are numerous whatwould normally be called assaults in the course of a hockey game, but which are really not assaults because of the consent of the playersin the type of game being played, where do you draw the line? ... [49] Gonthier J.'s remarks in the Supreme Court judgment Jobidon[3] are relevant here: Stated in this way, the policy of the common law will not affect the validity or effectiveness of freely given consent to participate inrough sporting activities, so long as the intentional applications of force to which one consents are within the customary norms and rulesof the game.

Unlike fist fights, sporting activities and games usually have a significant social value; they are worthwhile. In this regardthe 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 offorce which clearly extend beyond the ordinary norms of conduct will not be recognized as legitimate conduct to which one can validlyconsent. [50] In R. v. Watson,[4] Edmondson J. of the Ontario Court of Justice discussed the limits of the consent that is implied simply byparticipating in a hockey match: 20 Hockey is a fast, vigorous, competitive game involving much body contact.

Were the kind of body contact that routinely occurs ina hockey game to occur outside the playing area or on the street, it would, in most cases, constitute an assault which the sanctions of thecriminal law would apply. Patently when one engages in a hockey game, one accepts that some assaults which would otherwise becriminal will occur and consents to such assaults. It is equally patent, however, that to engage in a game of hockey is not to enter a forumto which the criminal law does not extend.

To hold otherwise would be to create the hockey arena a sanctuary for unbridled violence towhich the law of Parliament and the Queen's justice could not apply. I know of no authority for such a proposition. Provincial CourtJudge Carter in obiter in R. v. Maki (1970), (ON CJ), 1 C.C.C. (2d) 333, 14 D.L.R. (3d) 164, [1970] 3 O.R. 780,observed at p. 336 and I quote: "No sports league, no matter how well organized or self-policed it may be, should thereby render theplayers in that league immune from criminal prosecution.

" Later in the same judgment he said, and I quote again: ... all players, when they step onto a playing field or ice surface, assume risks and hazards of the sport, and in most cases the defence ofconsent as set out in s. 230 [which is now s. 244] of the Criminal Code would be applicable.

But as stated above there is a question ofdegree involved, and no athlete should be presumed to accept malicious, unprovoked or overly violent attack. 21 It is quite clear that each case of this kind must be decided on the peculiar facts. [51] More recently, Duncan J. of the Ontario Court of Justice made the following observations in R. v. C.C.:[5] 6 The playing field is not a criminal law-free zone. The laws of the land apply in the same as [sic] way as they do elsewhere.

The legalanalysis of whether a crime has been committed on the playing field is the same as it is on the street, though contact sports present aunique factual context for that analysis. ... 8 Physical force in contact sports is usually not criminal because the participants impliedly consent to it by their participation in thegame. Such consent will be implied for contact and force that comes within the rules of the game. Consent will also be implied withrespect to force that is outside the rules but within the scope of the accepted standards by which the game is played: R. v.

Cey (1989) (SK CA), 48 C.C.C. (3d) 480 (Sask CA); R. v. Leclerc (ON CA), [1991] O.J. No. 1533 (ONT CA). 9 The Crown must prove beyond a reasonable doubt that there was no implied consent. Case law suggests a reluctance to imposecriminal liability in the context of contact sports activities and a wide

interpretation of situations in which implied consent may be found:... ... 11 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'sparticipation in the game. But consent to excessive violence and serious hurt must be regarded as exceptional; the competing and perhapsmore reasonable inference is that the participant entered the game for its pleasures and benefits and had confidence that his opponentswould act in a civilized manner, that the rules would be enforced by the presiding officials and that gross violence would be deterred bysanctions, including the civil and criminal law.

(Emphasis added.) [ 52 ] In R. v. McDonald , [6] the Court of Appeal for Ontario stated that consent is a defence, even against aggravated assault, if the accused did not initially intend to cause serious bodily harm. [ 53 ] The fact that a penalty was imposed or that a player was suspended does not mean that the player is guilty of assault; the same is true regarding the consequences of that player's actions. [ 54 ] As the Saskatchewan Court of Appeal stated in R v.

Cey , [7] to which Gonthier J. refers in Jobidon , [8] implied consent is not limited to situations where the rules of the sport in question are respected: Intentional bodily contact in the context of an organized sporting situation requires that implied consent be considered. ... ... It is clear that in agreeing to play the game a hockey player consents to some forms of intentional bodily contact and to the risk of injury therefrom. Those forms sanctioned by the rules are the clearest example.

Other forms, denounced by the rules but falling within the accepted standards by which the game is played, may also come within the scope of the consent. ... Between, on the one hand, those forms of intentional bodily contact sanctioned by the rules and thus ordinarily included within the scope of the implied consent and, on the other, those forms which are beyond the rules and so violent as to be obviously excluded from consent, lie a host of others, many of which will present uncertainty.

Since this is a matter of degree, the question becomes what, in general, is it that serves to distinguish those which exceed the ambit of the implied consent from those which do not. [ 55 ] A body check that was caught on video was the subject of a trial lasting several days. The video shows a short sequence of events that unfolded so quickly that it had to be closely examined numerous times during the hearing. [ 56 ] The Crown called several witnesses to establish the factual background.

Some of them gave their opinion as to what the Court should understand from what can be seen in the video; some, however, had to admit that their testimony, initially given from memory, clearly did not reflect what had in fact transpired. [ 57 ] With respect, the Court does not agree with the Crown's assertion that the accused [ translation ] "had ample time and the necessary ability to change direction and head toward the puck" when L. [ translation ] "was already in a vulnerable situation". [ 58 ] The Court finds that the Crown has not met its burden of establishing beyond a reasonable doubt that the accused intentionally used force against A.

L. without his consent, which must be assessed or inferred in the context of a hockey match played in a so-called semi-professional league. [ 59 ] The accused is accordingly acquitted of the charge laid against him. __________________________________ PAUL DUNNIGAN, J.C.Q. Mtre André Campagna For the prosecution Mtre Carole Beaucage For the defence