2016 ONCJ 787, 2016 ONCJ 787

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows: 138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction.

Table of Contents 1.0 INTRODUCTION .. 1 2:0 THE ISSUES . 3 3.0 EVIDENCE AT TRIAL .. 3 3.1 Evidence of Carter O'Neill.............................................................................3 3.2 Evidence of Paul O'Neill..............................................................................14 3.3 Evidence of Dave Tannahill..........................................................................17 3.4 Evidence of Michael Jennings......................................................................20 3.5 Evidence of Michael Turini..........................................................................25 3.6 Evidence of Stephen Heron..........................................................................27 3.7 Evidence of Justin Bunting...........................................................................36 3.8 Evidence of K.E..............................................................................48 3.9 Evidence of Brian Flemons..........................................................................60 3.10 Evidence of Logan Mahoney........................................................................65 3.11 Evidence of Toby Singlehurst.......................................................................68 3.12 Evidence of Robert Eakins...........................................................................73 3.13 Evidence of Dianna Eakins...........................................................................76 3.14 Evidence of J.K................................................................................78 3.15 Evidence of Mitchell McKeown...................................................................86

4.0 POSITION OF THE PARTIES . 94 4.1 Position of the Defence.....................................................................94 4.2 Position of the Crown........................................................................95 5.0 ANALYSIS: 98 6.0 THE APPLICABLE LAW ... 101 6.1 Application of the Law to the Evidence in this Case . 103 7.0 CONCLUSION .. 111 CITATION: R. v. J.K. , 2016 ONCJ 787 COURT FILE No.: Halton 12-Y10-00 DATE: December 9, 2016 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — J.K., a young person Before Justice Stephen D.

Brown Heard on January 25, 26, 27, February 2, 3, August 11, 2016 Reasons for Judgment released on December 9, 2016 John Dibski ............................................................................................................... for the Crown Devin Bains and Pamela Zbarsky ........................................................... counsel for the accused J.K. BROWN, J.: 1.0 INTRODUCTION [ 1 ] This is a case about hockey. What can go right and what can go wrong. When J.K. was a young man, he was a skilled hockey player. Carter O’Neill was also a skilled hockey player.

Both boys had played hockey for many years. They had played hockey at the rep level, a level that allows body checking, encourages it, and trains its players in the skills required to both give and to receive body checks. [ 2 ] At times Mr. K. and Mr. O’Neill had played on the same team in rep hockey. They were friendly on the ice and,

although they did not extend that friendship off the ice, it is conceded by the Crown that there was no animosity or bad feelings betweenthe boys. [3] On October 14th, 2011 both boys were playing on opposite teams. This was in a house league game, early on in theseason. House league hockey involves players generally of a lower skill set than rep hockey and does not allow or encourage bodycontact or checking.

Carter O’Neill was playing centre in that game and J.K. was playing defence. [4] During the later part of the game, Carter O’Neill had possession of the puck and was making a play to J.K.’s goal whenJ.K. hip checked him. This caused Carter to go up and over J.K. and he landed badly on the ice. He was left with a serious injury, abroken leg that required surgical repair. Carter O’Neill has never played hockey again and suffers to this day from that devastatinginjury. [5] J.K. was charged with aggravated assault by wounding contrary to

section 268 of the Criminal Code. Although Mr.Dibski stated at the start of the trial that he would be seeking an amendment of the information later in the trial to read “wound or maim”to conform with the evidence, he never did apply for such an amendment. [6] This trial commenced on January 25, 2016. The last witnesses testified on August 11, 2016 when J.K. testified. Whenthe defence had closed its case I made enquiries of both counsel about their assessment of the time frame from charge to judgment ofalmost 62 months in light of the release of R. v. Jordan 2016 SCC 27 , 2016 S.C.C. 27. I wanted to know whether I couldexpect a s. 11(

b) application to be filed and argued. Both counsel discussed the issues and said that they were assessing or had assessedthe issues that Jordan addresses and the new framework of analysis. [7] Prior to final submissions, no s. 11(

b) motion was filed and no further reference was made to it by either counsel. Mr.Bains is an experienced and talented defence counsel who represented Mr. K. quite ably throughout this trial. He is not the first counselon this case. He replaced a previous one that represented Mr. K. [8] Although it is not my duty to second guess defence counsel, and I presume that there are very valid reasons why there isno s. 11(

b) motion argued before me, I lament the fact that this case will not be concluded until it has exceeded the presumptive limit ofacceptable delay by a factor of almost double that which is now the upper acceptable limit for cases to be concluded in the SuperiorCourt. [9] This case involves a young man charged under the YCJA. Both the complainant and the defendant have spent theequivalent of one quarter of their lives from the time of this alleged offence until they receive judgment. This case was tried in theOntario Court of Justice.

As such, the judgment will not be rendered until almost 44 months past what is now the limit of what will bepresumptively deemed to be delay warranting a stay of proceedings absent exceptional circumstances in a case that would be heard in theOntario Court of Justice. Although R. v. Jordan, supra, does not address the issue, I would expect that what is the upper tolerable delaylimit for an adult would be considerably shortened for that of a young person keeping in mind the declaration of principles set out in s.3(

a) and (

b) of the YCJA which states as follows: 3. POLICY FOR CANADA WITH RESPECT TO YOUNG PERSONS —

(1) The following principles apply in this Act: (

a) the youth criminal justice system is intended to protect the public by (

i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree ofresponsibility of the young person, (ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and (iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address thecircumstances underlying their offending behaviour; in order to promote the long-term protection of the public; (

b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminishedmoral blameworthiness or culpability and must emphasize the following: (

i) rehabilitation and reintegration, (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level ofmaturity, (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy,are protected, (iv) timely intervention that reinforces the link between the offending behaviour and its consequences[…] [10] A final word on this topic.

Judging a case where the event that led to the charge occurred in the matter of a few secondsin a high speed and instinctual sport, and assessing credibility and reliability of witnesses who observed those events from differingperspectives, with different biases and understanding of the game and different experiences with hockey, is an incredibly difficult task. [11] Time erodes memory and changes perceptions. [12] Bias subtly shifts perception and memory instantly and more so over time. That makes credibility assessment and thedetermination of the factual basis to which the law is applied to be a daunting task.

As such, I have given considerable thought and

reflection to the evidence presented in this case in arriving at the conclusions that I have reached. 2:0 THE ISSUES [ 13 ] The main issues in this trial are as follows: 1. Has the Crown proven beyond a reasonable doubt the mens rea requirement in s. 268 of the Criminal Code ; 2. Credibility and applying the W.D. analysis in a case where the defendant testifies. 3.0 EVIDENCE AT TRIAL 3.1 Evidence of Carter O’Neill [ 14 ] Carter O’Neill was 20 years of age when he testified in this trial.

He commenced playing hockey when he was seven years old. [ 15 ] All the time he played for teams in the Burlington Lions Optimist Minor Hockey Association. I will refer to that league by the acronym BLOMHA. [ 16 ] He commenced playing hockey and played house league hockey from the age of seven to 14 years old. When he was 14 years old he played for two years in another league, MD, which was a level above house league where he played single A teams. [ 17 ] He described the difference between playing in the two leagues.

House league was more relaxed, playing with friends, just having a good time where MD and rep was more competitive, contact was allowed and the pace of the game is a lot quicker. Skill levels of rep players are better than those of house league players and rep players have better balance, ability to skate and better shot power. [ 18 ] As well, house league hockey requires a lower time commitment with one practice and one game per week whereas rep would be four times per week.

Rep hockey requires travel to other cities, whereas house league is generally at the same local location. [ 19 ] The second season of playing rep found him on the same team as J.K., the Bulldogs. On that team there were sixteen players plus two goalies. [ 20 ] When Carter O’Neill played on the Bulldogs with J.K. he described their relationship as “neutral”. They socialized with different friends, but when the Crown asked him if there was any bad blood between them he said, “No. We’re on the same team.” [ 21 ] During the last year of playing MD rep hockey, Carter played right wing.

When asked to describe his skill level, Carter stated that he was tall, had finesse and was quick, as well as being defensive and had average scoring ability. He had been skating since he was two years old, so he had good skating ability. Carter described himself as tall, toned and thin. [ 22 ] J.K. played defence on Carter’s team that last year in rep. He was described by Carter O’Neill as being a good player, shorter and stockier built than Carter, with good balance, good skating abilities and a good shot.

He was described as more of a defensive-type defenceman as opposed to a more offensive-minded defenceman who would go for rushes up the ice. [ 23 ] In the fall of 2011 Carter O’Neill said that he was 16 and was in grade nine or ten. J.K. was the same age. [ 24 ] That year, Carter had decided to play house league and played on a team that contained some of his teammates from the previous year that had dropped down to house league.

He wanted a more relaxing season and joined the team for the sake of being with friends that he had not played with in years since he was playing in a different league. [ 25 ] There were seven or eight teams in house league that year. He noticed that this league was more relaxed and everyone was just going out to have fun. MD was quicker play and had a lot of contact. House league did not allow contact. Unlike rep hockey where players were encouraged to body check to knock someone off the puck, this was discouraged in house league.

They would slap the puck away from someone, but not hit them to get them off the puck. [ 26 ] In house league, all players got equal time on the ice. In rep hockey the better players would be played more often than their less talented teammates. It was their coaches’ decision when to utilize their strongest players. [ 27 ] Although it did not come out through Carter O’Neill’s testimony but through later witnesses, Carter played for the team called the Flyers. J.K. was on a team called the Senators.

The Senators wore white jerseys and the Flyers wore orange. [ 28 ] It was the third game of the season when Carter O’Neill was injured. The game was split into three 10- or 12-minute periods. [ 29 ] Nothing eventful occurred up until this tragic event in the game. No hostility existed. Indeed, J.K. would skate by Carter O’Neill at the start of the game and tap him on his equipment in a friendly gesture and smile at him because they had both been teammates before. [ 30 ] Then things went horribly wrong. [ 31 ] Carter’s team had a penalty.

As a result, they had four players on the ice and the defendant’s team had five.

[ 32 ] A face-off took place, according to Carter, in the right circle of the defendant’s team’s zone, to the left of their goalie. Because it was early in the season and the coaches were trying to get a feel for the strengths and weaknesses of each player, Carter took the face-off as a centre.

He won the face-off and got the puck back to his defence who then got a shot on the defendant’s net that rebounded and then got cleared into the neutral zone which is the zone between the two blue lines closer to Carter’s blue line. [ 33 ] At this point Carter got control of the puck on the right side of the ice and started skating towards the defendant’s end.

He said that he skated past one of his and J.K.’s old teammates named Billy who was on Carter’s team around center ice and seconds after he got past the blue line he started to cut in towards J.K.’s goalie to the left of the ice and ended up towards the middle of the ice. [ 34 ] At this time he noticed the defendant crouching down and looking at his chest. At first he was confused. Having played contact hockey before, it appeared to him that the defendant was coming towards him diagonally and then realized that the defendant was going for him and not the puck.

He saw J.K. crouching down and setting him up for a check. Since he saw this coming, he tried to dump the puck on the other side of the defendant towards the goalie hoping that he would go for the puck, but that was not to be. By this time, J.K. was about three feet away from him when he shot towards the goal. He knew that the defendant was going to hit him because he had played contact hockey before.

He said that the defendant was completely crouched down doing what you do for a hip check. [ 35 ] The defendant was locked onto him and checked him hitting his left knee with his left hip and that is when he flew over his body and landed on his shoulder blade. He was hit when he was close to the top of the face-off circle where the hash marks are. Carter O’Neill said that when he was hit, the contact was made just above his knee. [ 36 ] He stated in his evidence that the defendant had other options rather than hitting him.

He could have blocked the shot or tried to lift his stick to slap the puck away or tried to take away his angle by putting his body in his path. [ 37 ] Before he was hit, Carter testified that he was going an average speed, not full tilt, but not gliding either. He stated that J.K. was going the same speed as he was. [ 38 ] After Carter O’Neill was hit and landed back on the ice, he felt intense pain immediately in his leg.

He was focused on the pain, but he recalls J.K. skating by him and saying something like “sorry”, but it was hard to hear because of what he had just gone through. [ 39 ] He could not move on the ice and was in extreme pain. The trainers attended to him and ultimately he was taken off the ice on a stretcher and taken to the hospital by ambulance.

At the hospital when his hockey equipment was removed, he could see that his leg was bent. [ 40 ] X-rays were done at the hospital and around noon the following day a doctor performed surgery on his leg and repaired the break that was towards the bottom part of the femur. The doctor had to put two screws in to repair the fracture.

Apparently the growth plate of the femur was fractured and it was a clean break. [ 41 ] Carter O’Neill remained in the hospital for about five days and ultimately went home with a full leg cast, in a great degree of pain and on medication for it. [ 42 ] When he got home he really could not move and was on his back in bed for two to three weeks.

He had to have nurses come into the home to tend to him and wash him. [ 43 ] He then commenced doing physiotherapy and testified that he still does it occasionally up to the time that he testified before me in January 2016. [ 44 ] He stated that the doctors were concerned because the break was in the growth plate of the femur and there was concern that, because he was still growing, one leg would end up longer than the other. [ 45 ] Carter O’Neill still suffers from the injury.

He has stiffness and cannot extend his knee all the way and sometimes he hears a clicking sound when he straightens his knee. [ 46 ] As of the time of his testimony, Carter O’Neill had not returned to playing hockey. He does not jog or run for long as it causes him pain and he thinks that his knee is too fragile. [ 47 ] He does play some basketball, but tries to avoid running much.

He stated that he plays basketball with his friends but he knows his limits, and if he avoids pivoting and sprinting much, he can play for a couple of hours. [ 48 ] Carter O’Neill stated that after the incident he received a Facebook message the same night or the next day from J.K. The message was entered as Exhibit 1 at the trial. It says: J.K. Hip check Yo, Carter, I’m so sorry, dude. I didn’t mean to hurt you. It was supposed to be a superman, I caught you in mid-crossover, again sorry feel better. K. [ 49 ] He did not reply to the message. [ 50 ] When he was asked about the message by Mr.

Dibski, the following exchange takes place commencing at page 36 of the transcript of January 25 th , 2016:

Q. All right. As far as the words in the message, do you, do you, do you know what that means, that it was supposed to be a Superman, did that mean anything to you? A. Yeah. Q. What did that mean to you? A. It means to me that he did intentionally mean to make body contact and check me in a non-contact league and a Superman is when you make contact, hit someone and then make them fly through the air, like, you know, like Superman. Q. All right, and he indicates – or, sorry, it says in there as well, “I caught you in mid-crossover”? A. Yeah. Q. Does that mean anything to you? A.

Maybe when I tried to dump the puck to get rid of it so he would go for it instead of me because I was reading the play. Maybe when I moved – or dumped the puck and then moved over to the other side... Q. All right. A. ...that’s what he meant. [ 51 ] I am certainly aware that this evidence is Carter O’Neill’s

interpretation of what J.K. meant to convey in the message. It may be an honestly held belief, but the best evidence of what J.K. intended to convey by the message will be found later in the defendant’s own testimony. I include this because it gives a glimpse of the bias, honestly held, that this witness bears towards the defendant. [ 52 ] In cross-examination, Mr. Bains commenced by clarifying Carter O’Neill’s history playing hockey.

He established that Carter O’Neill, while playing house league from 7 to 14 years of age, also for a time was an assistant player with the rep team the Eagles starting when he was 13 years old. Being an assistant player requires the player to go to all of the rep practices and they can get called up to play a game if one of their regular players gets injured. [ 53 ] Starting at age 14 was when he was a regular player for a rep team. [ 54 ] Mr.

Bains established that when Carter O’Neill went back to house league after two seasons of playing rep hockey, the game that he got injured in was the third game of the year. Also, at the time he was playing on a select team which is a team that is closer in skill level to rep than house league but was no contact. It appears that this was the first year that a select team like that was a no- contact team. [ 55 ] Mr.

Bains established that Carter O’Neill learned about body checking and how to take a body check in rep practices and that he also took a one-day clinic to learn the skills. [ 56 ] During the particular game in question, Carter said that there were two other rep players on his team other than himself who were transitioning to house league. [ 57 ] He established that house league refs and coaches commonly told the players to play the puck and not the man.

Despite this, and even though house league is a more relaxed type of play than rep hockey, penalties are called when people start fighting or for tripping or body checking because, even though those things are not allowed, they do occur. [ 58 ] Mr. Bains established that Carter O’Neill had to remind himself to not have contact because he had been playing intensely in rep hockey where that was allowed. [ 59 ] Mr. Bains suggested to Carter that he was in grade 11 at the time of the game and was 16 years of age, and Carter could not disagree with that suggestion.

Nor could he disagree that J.K. was only 15 at the time. [ 60 ] He also reaffirmed that at the start of the game J.K. tapped him on the shin pad and they were both smiling and that this was a friendly gesture and bore no hostility. [ 61 ] Mr. Bains then took Carter to his statement that he gave to the police and cleared up some confusion in it wherein he had stated that some MD teams had gone no contact. Mr. O’Neill said he thought that this was so because of concern about concussions. [ 62 ] He then took Mr. O’Neill to hip checks.

Carter O’Neill said that he had seen them before, mainly on TV and sometimes in rep, but that they were rare. Mr. Bains suggested that the reason that he had seen them rarely in rep hockey was that there was quite a bit of skill required to deliver one properly. It required a high level of skating ability and balance to maintain your body positioning when you are bending over to deliver the hip check. Mr. O’Neill agreed with this. He also agreed that he had told the police that people usually do hip checks on taller players because there is more space on the taller player to upend their balance.

He also agreed that at the time he was one of the taller players on the team. [ 63 ] Mr. Bains also established in cross-examination that he had told the police that it was either J.K.’s hip or butt that made contact with him, but that he could not say with precision which one. [ 64 ] Mr. Bains suggested that Billy was on the other team, the Senators, rather than his team, the Flyers, and he agreed with that possibility. He also agreed that it was a possibility that Billy was the other Senator’s defenceman.

[ 65 ] Mr. Bains suggested that when Carter O’Neill was making the play, he skated past him. Mr. Bains also suggested to Mr. O’Neill that he told the police that as he was going by Billy he tried to do a move which was called a toe drag and which was described as using the toe of the hockey stick to bring the puck in closer to you and then drag it around someone. Mr. Bains then pointed out that he had told the police in his statement that he tried to do the toe drag, but when he saw that it would not be a successful maneuvre, he decided to shoot the puck towards the net. Mr.

O’Neill said that that part of the statement did not refresh his memory and did not accord with what he recalled had happened. The following exchange happens commencing at page 54: Q. Okay, so you think, you think maybe what you said to the police was wrong? A. No, I, I don’t think it’s wrong. I think there’s been an unusual amount of time that’s passed since the incident where maybe my memory isn’t a hundred per cent to every word that I’ve said that I would remember what, you know.... Q. Of course. I’m not at all suggesting that, that you’re not trying to give us the proper picture. A.

Is this – are you talking about – like, is this a play, like, that happened before the hit? Can you clarify or.... Q. You’re, you’re actually talking about the hit itself, what happened surrounding the hit, and you say to the police that... A. I might’ve.... Q. ...you tried, you tried to toe – sorry. A. Sorry. Q. That you were – you tried to toe drag around Billy, you figured out that you weren’t going to get around him, so you made, made a toe drag and shot toward the net and that, that, and that was the shot before, before contact with J.K.? A. Yeah.

At the time maybe I, I think I was most likely talking about a different player. Maybe I was confused about the question at the time, but now I’ve had a lot of time to think about it since then and I remember not shooting the puck. I shot the puck how I had mentioned earlier right before I was with J.K. Q.

Just so that you know, I mean, I mean, the police officer, when he took the statement from you a month later, tried to clarify that, clarify that point with you a few times and, and then he, he also asks you to draw it and when you’re, you’re, you’re drawing that moment you talk about you’re coming down and doing a toe drag around Carter [sic] and then taking the shot and getting hit after that. A. Maybe.... Q. Go ahead, please. A. Yeah. Maybe I said after the toe drag I took a shot which would’ve been correct, and then the statement it wouldn’t have been that very moment that I saw Billy I took the shot.

Maybe there’s some confusion around there. Like, because I did shoot after, but, like, I was – whatever happened with Billy I did shoot after that, but it necessarily wasn’t that split second because it – yeah. Q. Okay, I understand what you’re saying today, but you’re very clear with the detective, if I can say that, and then after you draw the diagram Constable Flannigan, the police officer right here, again reiterates it with you that, that you were coming down like this.

He’s looking at the sketch at the time, that you’re going forward, you do the toe drag around Billy, you shoot and then, and then you get, you get hit right after that, but that doesn’t accord with your memory today, right? Your memory is.... A. So what are you asking? Sorry? Q. Your memory is different today, that the shot – that, that.... A. What were you asking before that? Like, clarify what.... Q. I, I, I was just pointing out to you that in the, in the statement that you gave to the police there’s really no ambiguity, that you’re talking about doing the toe drag around Carter [sic], getting the... A.

You mean Billy? Q. ...shot out then and then getting hit. A. You’re confusing the.... Q. And then the toe drag around Billy, sorry, and then... A. Sorry. Q. ...and then getting hit. Like, it’s pretty – it’s very clear. A. So you’re – so what are you saying, sorry? I’m, I’m confused with what you’re... Q. Okay. A. ...trying to paint. I’m not sure what you’re trying to do.

Q. I, I think what you were saying is that the shot that you took after... A. Okay. Q. ...you did the toe drag around Carter [sic] must’ve been a different one from the one after which you got hit, right? A. A different play? Q. Yeah. A. No, it, it wouldn’t have been in the same play. Q. Okay. So do you agree, then, that you, that you got hit – that what happened is you were coming down the ice, there was another defender named Billy, that you did a toe drag to get around Billy, but you, you weren’t going to get around him so you made the shot and it’s after that that you got hit by J.K..

Do you, do you agree with that? A. No. Q. Okay, what – where is, where is that wrong? A. I don’t agree that I shot the puck when I interacted – when I saw Billy on the ice. It’s not when I took a shot. Q. Okay, do you have, do you have an idea of why you would’ve said that to the police? A. No. Maybe confusion on just answering the question maybe. Q. You were reading your statement right before you came to testify this morning, right? Yes? A. Yeah. Q. Do you remember reading that part? A. About shooting the puck when I was with Billy? Q. Yep. A. No. Q. You were reading it.... A.

I remember – like, actually I do remember that part, but in my head I was thinking that was a different play completely. Like, I was thinking that it was a different play to do with the game. Like, there was a ton of plays that happened that game with me going past defencemen. Q. Okay. A. And on that particular play I didn’t shoot the puck the moment I was - when I was near Billy I didn’t – when I got hit because I know J.K. hit me. It wasn’t like a shot the puck because it wouldn’t have made sense really. MR. BAINS: Okay, I’m looking at page 55 now, for my friend’s sake. Q.

Right after Detective Flannigan clarifies the, the toe drag and the shot around Billy, he asks you if you were intending to take the shot as, as J.K. was lining you up or coming toward you. You – I’m sure you remember the police officer asking you questions about that moment. A. Yeah, I remember that. Q. Okay, and your answer is that you took the shot a split second before you got hit. A. Yeah. Q. Is that accurate? A. Yep. Q. Okay.

In fact, the entire play – and right after you say that, you go on to say right after you did the toe drag, right after you knew you weren’t going to beat Billy, so you took the shot right at the goalie and then you got hit, that it all happened in a matter of seconds. A. Can you clarify what happened all in a matter of seconds? Q. Okay. Well, you.... A. I... MR. BAINS: I’m looking at page 56 now. Sorry, I apologize. That was for the sake of my friend.

Q. What you say to the police after you talk about the split second of taking the shot, the split second before you, you got hit, you say to the police right after Carter did the toe drag – or, I’m sorry, right after you did the toe drag you know, you knew you weren’t going to beat Billy so you just shot right at the goalie and that it – then you noticed J.K. coming at you and you got hit, it was all a matter of seconds. A. So you’re asking me if that entire play was a matter of seconds or if that with Billy was a matter of seconds? Q. Well, whether that.... A.

Like, the play that - after I went past Billy, after I shot the puck to dump it because I knew J.K. was clearly coming for me to hit me and then I got out of the way, like, are you asking if that entire play was just a few seconds or.... Q. Yes. A. No. Q. So when you told the police officer that it was all a matter of seconds, that, that was incorrect? A. Could you clarify? Like, you’re kind of confusing. Q. Would it, would it help you... MR. BAINS: And I’m subject to Your Honour’s view here. Q. ...but would it help you to read over the portion that I’ve been reading from.

It’s just a couple of pages where you’re, where you’re talking about going around Billy and, and – would that help... A. I.... Q. ...to refresh your memory? A. I, I read it and I understand. It’s just the way you’re wording it and going back. I’m, I’m not – I think I’m getting – maybe it’s my end, I’m sorry. I’m getting confused on which parts of the play because then you’re asking me if, if it’s true this happened, then you’re, like, you’re.... Q. You see, maybe it would help you to look at the statement because all I’m doing is I’m following the statement. A. Okay. Q. Like, I’m not trying to confuse you.

I’m just using.... THE COURT: Why doesn’t he read the couple of pages of the statement... MR. BAINS: Thank you, Your Honour. THE COURT: ...okay? MR. BAINS: May I have – do you have a clean copy? THE COURT: Do you have a clean copy? MR. BAINS: It’s a Crown transcript, yeah. I think probably.... MR. DIBSKI: Page 42. MR. BAINS: I think probably if you went from, I think – if I could make this suggestion, Your Honour. If the witness could look at page 42 of the transcript, which is where he first introduces the, the topic, and then, and then the clarification by the police officer which is at page 54, 55 and 56. A.

So which pages, 42.... MR. BAINS: Q. Yeah, I think you should begin with 42. There’s not that much writing on each page. And then from 54 to 56. A. Okay, thank you. Q. No problem. ...WITNESS READS DOCUMENT Q. Okay. First of all, you – I take it you’re not disputing the fact that you said these things to the police? A. No. Q. Okay, does reading this passage help to refresh your memory about the timing of the hit? A. No. I believe at the time I said that I might have been confused. I, I definitely remember saying this and going in and talking to the

police, but it’s been four years and I’ve had a lot of time to think about it, so.... Q. Okay. A. Maybe, like, I read it and I kind of see my own, like, confusion with my words and, like, I understand that’s – I did – that’s what I said, you’re right. Q. Okay. You’ll recall that when you spoke to the police, you know, this was about a month after your, your injury and you told the police you were feeling a lot better, right? A. Yeah. Q. And you were off of painkillers at that point? A.

Yeah. [ 66 ] I have included the entirety of that lengthy exchange in this judgment because it shows an inconsistency between Carter O’Neill’s evidence to the police that he gave in his videotaped statement one month after the incident, but also a defensiveness and a confusion in the exchange that raises some concerns in my mind about his credibility and reliability as a witness. That, combined with a bias exhibited against J.K., gives me cause to approach his evidence very carefully in my analysis. [ 67 ] Mr.

Bains then moved on to what occurred after the hit and established that Carter O’Neill recalled J.K. skating over to him and speaking to him when he was on the ice saying “sorry” or “sorry buddy” and it was his impression at the time that he did not know that J.K. knew the extent of his injury at the time.

Carter O’Neill agreed that when the defendant was talking to him he was swearing because he was in pain, but he still remembered the defendant’s voice speaking to him. [ 68 ] Dealing with the Facebook message, he stated that he was unaware that the defendant had also tried to see him at that time and said that nobody had told him that. [ 69 ] In dealing with the injury itself, Mr.

Bains established that although the doctors were concerned that the injury involved the growth plate of the femur and that one leg may grow longer than the other, thankfully that did not occur. [ 70 ] Carter O’Neill acknowledged that in an effort to address the injury that he suffered, he and his parents have sued the defendant, the defendant’s parents and BLOMHA for two million dollars. [ 71 ] Finally, in cross-examination Mr.

Bains had Carter O’Neill agree that he had told the police in his statement that he was planning to go for try-outs for his high school team, which was full contact hockey, but he had not done so. He was also playing select hockey which would have made him ineligible to play for his high school, but he conceded that if he had made the high school team he would have been playing in a full-contact body-checking league, as well as a non-contact league. [ 72 ] Mr.

Bains offered to take Carter O’Neill to the point in his police statement where he had talked about trying out for the high school team, but he said that this would not be necessary and he agreed that may be the case. [ 73 ] When he was asked about the document that was signed to register in house league acknowledging the risk of bodily injury, he was not familiar with that document and agreed that his parents would have done that. [ 74 ] In re-direct, Mr.

Dibski took Carter to the statement that he made to the police which differed from the statement that he made at trial in that the statement to police indicated that he could not get around Billy despite trying to do a toe drag so he shot the puck and was going for the rebound when he saw J.K. and then was hit. [ 75 ] When asked what his recollection today of the incident was, he replied that it was that he got around Billy and then he saw J.K. coming and that is when he got hit.

This unfortunately did not clear up the inconsistency between the statement that Carter O’Neill gave to the police and his trial evidence. In his statement to the police he also said that he was hit in the knee which is contrary to the preponderance of other evidence led at this trial. 3.2 Evidence of Paul O’Neill [ 76 ] Paul O’Neill is the father of Carter O’Neill and was at the game when his son was injured. He was standing at the right- hand corner of the rink in the offensive zone behind the glass. [ 77 ] Mr.

O’Neill played hockey himself when he was younger, playing at the house league level when he was aged nine to 15 years old. [ 78 ] In describing the play, he stated that it started as a face-off in the offensive zone with his son and J.K. taking the face-off in J.K.’s own zone. [ 79 ] He described his son as winning the draw and getting the puck back to one of his defencemen on the point. He believes there was a shot from the point on net and then there was a rebound and Carter started going for the rebound.

He said Carter was in the slot area pretty much in the centre of the ice between the hash marks of the face-off circles. [ 80 ] As Carter was going for the rebound, he saw J.K. coming from the corner on the left side of his goalie skating diagonally towards him. He said that he was at full speed “a good four or five strides” and that Carter was being defended by J.K.’s other defenceman who was about five feet in front of Carter.

[ 81 ] He described J.K. as cutting off his other defenceman and just before he got to Carter he crouched down “a couple of feet” in front of him and gave him a hip check on his left leg with his left hip. He said that J.K. was going at full speed at this point. [ 82 ] He described his son’s left leg as going about 4 or 5 feet into the air, higher than any other part of his body and he was bent over flipping and hit the ice head first and then onto his shoulder and then rolled onto his back. His right leg was also off the ice after he was hit.

He described J.K. as going through him and stopped on the other side of him. He said that J.K. hit his son very low, enough to catch him on the femur of his leg. [ 83 ] The referee immediately put his hand up and blew a whistle and sent J.K. off the ice giving him a five-minute penalty. [ 84 ] When Mr. Dibski asked him what J.K.’s reaction was, he described him as laughing and smiling and then waving goodbye to the referee. It must be noted at this point that this was contrary to the evidence of many other witnesses, including that of J.K. and the referees.

Certainly one would think that if J.K. had been laughing and smiling and waving goodbye to the referees, they would have noticed this and remembered this. They did not and I find this to be a telling example of the bias that this witness holds towards the defendant and plays significantly into my assessment of his credibility and reliability as a witness. [ 85 ] He stated that his son had been playing hockey for ten years up to this point and that the difference this year was that he was playing in a non-contact league.

He said that his son and J.K. played on the same team the year before and, as far as he knew, there were no issues between them. [ 86 ] He described J.K. as a good, strong skater and that it did not appear that he lost his balance or went out of control. He described the hit as very hard and said he had never seen a hit like that in house league before or even in rep hockey. He said that he was shocked by it. [ 87 ] When asked to describe Carter’s recovery, he stated that he had a long period of recovery.

He said that his son never played hockey again and now he only plays a little bit of basketball, more just shooting hoops. [ 88 ] At the end of direct examination Mr. Dibski attempted to minimize the presence of the $2 million lawsuit that was brought out in his son’s cross-examination. Mr. Dibski asked him who determined the quantum of damages sought and Mr. O’Neill said that it was the lawyer that did that. It was not asked, nor answered, but one always knows that lawyers suggest but ultimately act upon their client’s direction and authority. [ 89 ] In cross-examination, Mr.

Bains confirmed that this was only the third game of that season in house league and that the year before Carter had played rep hockey with J.K. on a team called the Bulldogs. [ 90 ] Mr. O’Neill was questioned about never having seen a body check like that in house league before and was asked if he had seen any successfully executed hip checks in rep hockey. He replied that he had seen some “but not one where you’re taking just one leg.” (Page 84, January 25, 2016) [ 91 ] Mr.

O’Neill stated that what made this check unusual in his mind was that it was the single leg of his son that was struck. [ 92 ] It was also established that Mr. O’Neill thought that J.K. was not being uncooperative, but he was being disrespectful of the referees. When asked if that was something that the referees would have seen, he replied that they should have seen that and he was sure about that. [ 93 ] When questioned about his evidence that J.K. was smiling shortly after the hit, he was asked by Mr.

Bains whether there was a general celebration among the players of both benches after the hit and he denied that there was and said that the arena went quiet after the hit. [ 94 ] He was pressed on this and asked whether, when he had seen other body checks in rep and house league, sometimes players high five each other and otherwise celebrate hits, particularly in the 15- to 16-year-old age group, and he agreed that some do. [ 95 ] Mr.

O’Neill knew that J.K. had sent Carter a Facebook message shortly after the incident because his son had shown it to him, but he did not see, hear or remember J.K. apologizing to Carter on the ice after the hit. He said that J.K. had no opportunity to do that because as soon as he made the hit the whistle went and he was escorted off the ice by the referees. [ 96 ] Mr. O’Neill denied being aware of any efforts that J.K. and his family made to see his son when he was in the hospital and that he was sure of that.

Some doubt on that testimony arose later in the case based on the evidence of K.E., J.K.’s coach, as well as Exhibit 7 in this proceeding which suggests that indeed these efforts were made. [ 97 ] Mr. O’Neill became somewhat defensive and guarded when the area of the consent form and waiver that he signed for his son was explored.

In part, I find that this is because of the existence of a civil proceeding in this matter which claims a considerable amount of money for damages against the defendant and his family, the referees and the league, and it informs my opinion concerning the bias of this witness against the defendant. [ 98 ] He maintained that the waiver of liability and the acknowledgment of the risk to his son of serious personal injury from participating in hockey only applied to “accidental injury”. When Mr.

Bains pressed him on the fact that his son might have been subject to some body checking that would invite penalties in house league play, he was adamant that house league was a non-contact league and that he never anticipated his son being hit. When further pressed on this, he reluctantly acknowledged that it was not “uncommon” for there to be penalties for body checking. Mr. Bains also extracted from him that there could be injuries that result from these more common penalties that he had seen. [ 99 ] Mr.

O’Neill maintained that his waiver and acknowledgment of injury only extended to “accidental” contact and not deliberate. Therein lies the crux of this case.

[ 100 ] He was shown a copy of the risk waiver that he signed for the 2011-2012 season on behalf of his son which was made Exhibit 2 in these proceedings. It includes a clause under item 3 on page 2 that says: RISK OF SERIOUS INJURY; I hereby understand and appreciate that participation as a hockey player carries a degree of risk to me/my participating Child of injury, including permanent disability, paralysis or death. [ 101 ] In re-direct, Mr. Dibski touched upon the defence questioning of Mr. O’Neill that suggested that players did high fives after body checks in rep and house league which lead to Mr.

O’Neill clarifying the number of checks that one would see in house league as opposed to rep. Mr. O’Neill stated, when asked how many body checks one would see in a typical house league game, there was “generally zero, there shouldn’t be any”. [ 102 ] I felt that Paul O’Neill approached his testimony and tailored it to a degree so as to enhance his position in the outstanding civil suit.

Although understandable, it provides me with unease about accepting him as a reliable witness. [ 103 ] Much of his evidence is at odds with that of other witnesses that I have heard in this trial. [ 104 ] I am certainly acutely aware of the differing standards of proof in a criminal trial as opposed to a civil trial and the different issues involved, although Mr. O’Neill’s testimony gives me some serious concern regarding its reliability. With the wind of bias driving his perspective, I attribute no malice to him.

His son suffered a serious injury and he, as most parents in a similar position, would feel that an injustice would be done if that were not to be sanctioned both in the civil and the criminal courts, but the issues and the objectives are different and discrete and of that I am mindful. 3.3 Evidence of Dave Tannahill [ 105 ] Dave Tannahill was the next witness called on behalf of the Crown. Mr. Tannahill is the father of a player on J.K.’s team, the Senators, but was not acquainted with Mr. K. Tannahill was a paramedic for 27 years and now is part owner of a retail golf store in St. Catharines. [ 106 ] Mr.

Tannahill played at the AAA hockey level for the whole of his minor hockey career and was subsequently drafted to the London Knights in the Ontario Hockey League. He played the position of defence for the entirety of his hockey career. [ 107 ] Mr. Tannahill was present at the hockey game when this incident occurred and was sitting in the spectator stands approximately eight to ten feet from the glass. He was situated in the end zone where the incident occurred. Mr.

Tannahill observed Carter O’Neill skate with the puck across the blue line into the end zone heading towards the Senators’ net. [ 108 ] He then observed Mr. K. turn around and begin to skate backwards at the same blue line. As Mr. Tannahill described in his evidence, both players were going a moderate speed, but indicated that Mr. K. appeared to be picking up speed and slowly crouching down as he did so. He indicated that Mr. K. “kind of turned his body towards the centre of the ice in a crouching manner” as Carter O’Neill approached him with the puck.

He advised the Court that, from what he observed, Carter was skating with his head down because in a non-contact league a player does not expect to be body checked. [ 109 ] When the impact occurred, Mr. Tannahill indicated that Carter O’Neill went over top of Mr. K. and landed on the other side of him in a “heap” and referred to that as a hip check. [ 110 ] Mr. Tannahill observed the play to stop immediately after the referee blew the whistle and went over to Carter O’Neill, who was not moving on the ice. The referee called for the trainer to attend to Mr.

O’Neill and he observed the trainer holding Carter’s leg in the knee area. [ 111 ] Mr. Tannahill was watching the injured player on the ice and not watching the referee, but he indicated that he did see Mr. K. escorted off the ice. [ 112 ] When asked about the justifiability of the referee’s call for what he thought was a misconduct penalty, Mr. Tannahill indicated that he thought it was justified given that the league was a non-contact league and the body check delivered to Mr. O’Neill had rendered him injured. [ 113 ] Mr.

Tannahill indicated that he does not see body contact very often in house league and has been watching his own son in house league for about two or three years. He said if there is body contact, it is usually two players fighting for a puck along the boards and one player getting knocked into the boards. [ 114 ] When asked by the Crown how surprised he was to see a hit like he witnessed in this particular house league game, he said he was moderately surprised that that had happened. [ 115 ] Upon discovering that Mr. Tannahill also played the position of defence, the Crown delved into possible options Mr.

K. would have had instead of administering a hip check. Mr. Tannahill indicated that there were several ways for a defenceman to run interference on a player who is advancing on the net such as executing a poke check, a sweep check or simply blocking the player’s intended path with his body which, as a result, would encourage the player to take a different route and perhaps slow himself down. [ 116 ] When asked by the Crown if a player is allowed to run into another player in order to release the puck from them, Mr. Tannahill indicated that with hockey in general contact cannot always be avoided.

He further explained that differing tolerance levels of referees plays a

part in how physical contact is perceived in a hockey game. [ 117 ] Finally, when asked to describe the strength level of the impact that he witnessed Carter O’Neill receive, he described it as severe for non-contact house league hockey and added that it would not be considered as such for rep hockey.

[ 118 ] In cross-examination, Mr. Tannahill agreed with Mr. Bains’ suggestion that there were quite a few players who were transitioning from rep hockey to house league hockey. [ 119 ] He also agreed that the hip check that he saw Mr. K. execute on Carter O’Neill was a “good” hip check in the context of contact hockey given that it successfully separated the player from the puck. He also agreed that it was not a “dirty” hip check which would have invited a penalty of clipping. [ 120 ] Drawing on Mr. Tannahill’s experience and knowledge of hockey, Mr.

Bains explored the intricacies of delivering, in his words, a “classic good hip check.” Mr. Tannahill agreed with his suggestion that the contact area for a good hip check was somewhere between the waist and down to just above the knee area. [ 121 ] Mr. Tannahill agreed with Mr. Bains’ suggestion that even in non-contact hockey where checking is not anticipated, it is not good practice for a player to have his head down looking at the puck more than he would be looking up. [ 122 ] Mr. Tannahill also agreed with Mr.

Bains that although he thought that Carter had his head down, he cannot say that he had not noticed that Mr. K. was “lining him up” and that he was attempting to make an evasive play. [ 123 ] Also, it was conceded by the witness that when he was asked by the Crown how long during the play J.K. was in a crouched position and he replied for a longer portion of the play, that the whole event occurred in only a few seconds. [ 124 ] Mr.

Tannahill agreed that the player who executed the hit could play at a much higher level of hockey than the house league level because of his accomplished puck handling, skating and hard shot, acknowledging that a hard shot is important for a defenceman so he can effectively shoot on net in the opposing zone. [ 125 ] He also agreed that executing a good hip check also requires a certain level of skill, strength, speed and balance. Mr.

Tannahill indicated that he is no stranger to throwing hip checks himself in hockey and agreed that hockey players’ skills are developed early in their careers through clinics and training sessions. [ 126 ] Mr. Tannahill indicated that players learn from a young age how to throw and how to take a hit. [ 127 ] When asked by Mr. Bains about the importance of a rep defenceman knowing how to body check properly, Mr. Tannahill indicated it was especially important and it would essentially become second nature. [ 128 ] Mr.

Tannahill struck me as a very knowledgeable, credible, honest and non-biased witness and I was impressed with his evidence. 3.4 Evidence of Michael Jennings [ 129 ] The Crown next called Michael Jennings. He was the coach of Carter O’Neill’s team when this incident occurred. [ 130 ] Mr. Jennings has a wide spectrum of hockey-related experience which includes playing hockey since the age of five, refereeing between the ages of 13 to 20 and he has been coaching for at least 10 years. [ 131 ] He started coaching when his own son began playing hockey.

As he followed his son through the age divisions of house league hockey, he too moved up as coach at all age levels from Novice right up to Midget. [ 132 ] Mr. Jennings has played both house league and rep hockey. He has also refereed house league, rep and men’s hockey games. [ 133 ] Mr. Jennings indicated players are evaluated in the previous year by being assigned a numerical value for skill level, after which the hockey administration splits up the players so that the teams are proportionately balanced. [ 134 ] For a typical house league team, Mr.

Jennings advised that each one would have approximately four rep players, two weaker players and every skill level in between. There are six to eight house league teams, but he indicates that this can vary from season to season. He believed the team that he was coaching when this incident occurred had three rep players on it with a total complement of 18 team members. [ 135 ] Mr. Dibski took Mr. Jennings through the rules of house league hockey regarding contact and he indicated that while there is incidental contact, body checking is not allowed whatsoever. [ 136 ] Mr.

Jennings indicated that at the Midget level of hockey a player who wanted to play high school hockey could not play rep hockey as well so they would come into house league which would enable them to play both. [ 137 ] Mr. Jennings said that at the start of the hockey season he would remind his team that there is no body checking and it is always better to “beat the team on the scoreboard.” He further stated that most of the players who previously played rep hockey had no difficulty with the non-contact rule and they would have been aware of that when they started in house league.

His evidence that most players who had previously played rep hockey had no difficulty with the non-contact rule in house league is contrary to the testimony of many witnesses who testified at this trial, including some of the players who had made that transition such as Michael Turini and Mitchell McKeown, and some non-players such as Toby Singlehurst and K.E., and where it conflicts with their evidence, I prefer their evidence to the evidence of this witness. [ 138 ] As far as the incident in question, Mr. Dibski established that Mr. Jennings had a fairly good recollection of the game itself.

It happened in the third period of the game and there had been no nefarious episodes prior to the event.

[ 139 ] The Crown suggested that the beginning of a hockey season has less intensity than the end of season knock-out play-off stage and Mr. Jennings agreed with that suggestion. [ 140 ] Mr. Jennings indicated that, despite skill level, there should be equal ice time for everyone and that “stacking” the team’s best players on a power play maneuvre is not allowed.

He advised that, as the coach, he asks the players what positions they wish to play at the start of the season and he moves players around and does not force any player to play only one position. [ 141 ] When the incident between J.K. and Carter occurred, Mr. Jennings indicated that he was standing on his team’s bench which was located at or around the centre line of the ice in his team’s own zone. [ 142 ] He indicated that the incident started in his end with Carter O’Neill picking up a loose puck and moving up the ice in an opening towards the goal.

He was close to the boards as he approached and crossed the other team’s blue line. As Carter moved on the open ice he proceeded to initiate a turn towards the net and that is when Mr. Jennings saw a player from the other team come straight across the ice, lower his shoulder and make contact with Carter. [ 143 ] He advised that as soon as the two players made contact, Carter immediately fell down and the referees blew their whistles to stop the play. Carter was not moving and then the player who hit him was told to leave the ice. [ 144 ] Mr.

Jennings explained that there was something “different” with the way the other player was skating directly across the ice towards Carter and that is what caught his attention. He identified that other player as Mr. K. [ 145 ] Mr. K.’s reputation as an accomplished hockey player was known to Mr. Jennings through other coaches and players telling him who the better players on the teams are. [ 146 ] From Mr. Jennings’ perspective, when Mr. K. was skating towards Carter O’Neill, he believed he was “lining him up” to go over to hit him, not trying to get the puck away from him. He says this because Mr.

K.’s stick was in his hands and not down on the ice to try to make off with the puck. [ 147 ] He indicated that although he was physically located out of the play and coming from the other side of the ice, J.K. skated in an east/west direction of travel and headed directly towards Carter. Carter was headed directly towards the net. [ 148 ] When asked by Mr. Dibski what options Mr. K. had as a defenceman to make a play on Carter, Mr. Jennings indicated that he could have played the puck with his stick instead of going for the player, but there was no movement with his stick whatsoever.

This is the only option that Mr. Jennings felt Mr. K. had in an attempt to impede Carter’s continued advancement on the net. [ 149 ] When asked about the speed of J.K.’s motion towards Carter, Mr. Jennings indicated that it “looked like he was going probably as fast as he could” which resulted in a solid hit to Carter. He described the sound of the impact as a thud. [ 150 ] When asked what position J.K.’s body was in as he advanced towards Carter, Mr. Jennings indicated that J.K.’s head and shoulder were both lowered as he turned into Carter. He said J.K.’s shoulder was lowered about six inches. [ 151 ] When Mr.

Dibski enquired as to where J.K.’s body hit Carter’s body upon impact, Mr. Jennings indicated that it looked like it probably would have been J.K.’s side because at the moment before impact J.K. appeared to turn, lower his body and hit Carter with his shoulder a little bit below Carter’s shoulder area down to just above his knee. As a result, Carter went down to the ice and appeared limp. [ 152 ] He indicated that the referees told J.K. to leave the ice, which he did but not before laughing, high-fiving other teammates and, as it appeared to Mr. Jennings, J.K. may have even hugged another player. [ 153 ] Mr.

Jennings indicated that his trainer attended to Carter on the ice and eventually an ambulance arrived to transport him to hospital, after which the referees ended the game prematurely. [ 154 ] Upon discussion with the referees, Mr. Jennings was informed that a match penalty was being assessed against J.K. for intent to injure. This was a call that Mr.

Jennings felt was a correct assessment by the referees as he felt there was no intention by J.K. to play the puck and he believed that J.K.’s intention was to hurt Carter. [ 155 ] When pressed by the Crown to expand his explanation on why he felt this was the correct penalty call, Mr. Jennings opined about his own hockey career, as well as his observations from watching a lot of hockey and suggested that there is a difference between trying to run somebody off of a puck and trying to hit somebody.

He indicated that if Carter had seen J.K. approaching him, he would have prepared for the hit as he was trained to do. [ 156 ] In Mr. Jennings’ experience, he indicated that he has indeed seen body checking in house league hockey and that it occurs probably at least once every game. This comes in the form of players being side by side and throwing a shoulder to push the other player into the boards causing a very low impact hit. [ 157 ] In the role of coach, Mr.

Jennings instructs his team not to body check because the team can’t afford to have players in the penalty box. [ 158 ] After exploring the different types of penalties that can be assessed generally in hockey, Mr. Jennings indicated that a match penalty is the most severe penalty that can be assessed whereupon the player is kicked out of the game and a hearing must be held with the hockey administration to determine when the player can return to play. [ 159 ] Mr. Jennings indicated that this was the first time he has seen a match penalty assessed in house league hockey in his 10 years of coaching.

As a referee, he indicated that he has only seen one match penalty assessed in house league 35 or 40 years ago and

that penalty was assessed for one player kicking another player with a skate. He had never seen a check like this before in house league. [ 160 ] Mr. Bains confirmed with Mr. Jennings that in order for young men to play high school hockey, they have to drop down to house league from rep because of potential time conflicts that could affect the team make up. [ 161 ] Mr.

Jennings acknowledged that body checking is an important part of the game in high school and rep hockey, although in house league there should be no contact because it simply results in players sitting in the penalty box leaving a short-handed rotation of players which gives the opposing team a power play advantage. He confirmed that a power play opportunity does not permit coaches to “stack” a shift with five of their best players to gain advantage over the other team. [ 162 ] Mr. Bains then addressed the issue of adjustment problems players may have when transitioning from rep hockey to house league hockey. Mr.

Jennings indicated that he has never seen a problem with that transition amongst players. [ 163 ] Mr. Bains then turned to the actual hit that is the subject of this trial. Mr. Jennings did not recall if it was a power play situation or whether any penalties had been called previous to the incident that occurred in the third period. He agreed that there may have been penalties called, but then remarked that it had been “actually a very clean game.” [ 164 ] When describing Carter’s movement with the puck, Mr.

Jennings indicated that Carter passed a few players while cutting up to the net, but he does not recall whether he passed any defencemen. J.K. passed no players to get to Carter. [ 165 ] He conceded that J.K.’s job as a defenceman in house league hockey is to defend the net and prevent a goal. He added that this should be accomplished by taking the puck away and not hitting the player. [ 166 ] Mr. Jennings gave a statement to police regarding this incident and indicated that when he saw J.K. advancing on Carter he had expected a hit, but it was a larger hit than he anticipated. [ 167 ] J.K. was a player that Mr.

Jennings watched because of his superior hockey ability and he wanted to make sure J.K. was not able to wind up and shoot the puck. Mr. Jennings agreed that Mr. K. was one of the stronger players on the other team. [ 168 ] When discussing the timing of the incident in relation to the entirety of the game, Mr. Jennings indicated that the hit occurred shortly into the third period. He could not recall the score at that time, but when Mr. Bains suggested the score was one to one, Mr. Jennings retorted that he was not bothered by the score. I found that to be a strange response from a coach of a team.

Other evidence at this trial, such as Exhibit 4 which is the Official Game Report, shows that J.K.’s team had a penalty at the time and that Carter’s team would have been on a power play at the time of the hit. With J.K.’s long history of competitive rep hockey, I find that this would have been of some concern to him at the time of the game and, combining that with his knowledge that Carter had rep skills having played on J.K.’s own team in the previous season, would have made J.K. aware that Carter was a threat in a power play situation. [ 169 ] Mr. Bains’ cross-examination revealed that Mr.

Jennings is now a director of BLOMHA, the governing body of Burlington house league hockey. When Mr. Jennings was informed that BLOMHA was being sued by Carter O’Neill’s family, he indicated that he was not aware of that. Again, I found that to be a troubling answer. A director of a hockey organization that was involved in a game as a head coach that resulted in his player being severely injured and that ended up with that player suing the organization is something that I think surely could not have escaped his attention. [ 170 ] Mr. Jennings does not coach any longer, nor does he referee.

His sole role with BLOMHA is in an administrative capacity where he watches games and ensures game sheets are done correctly. [ 171 ] BLOMHA is responsible for hiring referees and organizing training clinics for the players, including body checking clinics. [ 172 ] Mr. Bains then explored with Mr. Jennings the different types of penalties that can be called in a hockey game. Mr. Jennings suggested that a referee would be better able to answer the more specific questions asked by Mr. Bains as he does not “assess stuff that I don’t see, so I couldn’t make a judgment call.” [ 173 ] Finally, Mr.

Bains discussed with Mr. Jennings the sound of the impact when Mr. K. hit Carter. Mr. Jennings indicated that, to his memory, it was louder and more significant than other thuds he has heard before when witnessing a body checking incident. [ 174 ] In re-examination by Mr. Dibski, Mr. Jennings explained that defencemen on a team work together by talking with each other and moving up the ice together to cover each other’s backs. He further indicated that both defencemen on any given shift usually do not go after the same opposing player as it would put both defencemen out of a play.

One has to always be available if the puck gets loose. [ 175 ] Mr. Dibski attempted to get Mr. Jennings to agree that, by working together, one defenceman would hold an opposing player up while the other defenceman could “sweep in and hit the player.” Mr. Jennings did not agree with this, explaining that if both defencemen were tied up in one play, that would create an opportunity for the other team since they are the last line of defence before the net. [ 176 ] In conclusion, Mr. Jennings did not agree that Mr.

K. was simply trying to defend his goal because, in his view, he made a play on the body instead of the puck. This concluded the evidence of Mr. Jennings. I did not find Mr. Jennings to be a particularly helpful or credible witness and some of his answers to questions summarized here gave me grave cause for concern. 3.5 Evidence of Michael Turini [ 177 ] The next witness for the Crown was Michael Turini who was a teammate of Carter O’Neill’s when this incident occurred.

[ 178 ] He had played hockey for 9 or 10 years prior to this incident in the house league, high school hockey and rep levels. He had been playing in house league for a couple of years prior to this incident. [ 179 ] Mr. Turini indicated that the main difference between house league and rep was body contact and skill. [ 180 ] Mr. Turini played the position of defence on the ice. He indicated that the body was played more in rep than it was in house. [ 181 ] When asked about any adjustment when transitioning from rep to house league, Mr.

Turini indicated that it took a few games to adjust to the different leagues. [ 182 ] Mr. Turini testified that he was playing defence in this particular game and was on the ice behind the other players when the hit occurred. [ 183 ] He said that Carter had the puck in the corner and was head down. He indicated that Mr. K. was in the opposite corner of the rink in the other team’s zone. [ 184 ] Mr. Turini was not overly familiar with J.K. and only knew him “a little bit.” [ 185 ] When asked about what happened leading up to the incident in question, Mr.

Turini explained that Carter O’Neill came around with the puck and successfully maneuvred around another player when J.K. came across in front of the net, passed the goalie and hip checked him. [ 186 ] He said that as J.K. was approaching Carter he was picking up speed as he went. He described J.K. positioning himself for the hip check by crouching over. Mr. Turini indicated he was approximately 15 feet away when he observed this. His belief was that Carter did not have any idea that a hit was imminent. [ 187 ] Mr.

Turini described the contact as “a pretty big impact and you could hear Carter hit the ice.” He said that it appeared as if J.K. lowered his body in an attempt to almost lift Carter off the ice. As a result of that, Carter’s skates left the ice and it appeared to Mr. Turini that Carter almost turned in the air. His landing on the ice was audible. He indicated that everything stopped at that point and the ref blew the whistle. [ 188 ] Mr.

Turini said that he did not see J.K. after this happened and guessed that the ref would have escorted him off of the ice. [ 189 ] When asked about J.K.’s intention as he approached Carter, Mr. Turini indicated his intention was to hit him. [ 190 ] Mr. Turini was asked about other options J.K. may have had to make a play other than throwing a hit and he indicated that he could have slowed down a little bit and played the puck more. [ 191 ] When he saw Mr.

K. moving in, he indicated it appeared to him that he was trying to play the puck at first but then hunched over in a bracing type of position before he hit Carter. He indicated that the type of check that was delivered was a hip check. [ 192 ] In cross-examination, Mr. Bains established with Mr. Turini that effective hits are a skill set for defencemen in rep hockey that require practice and training to accomplish. [ 193 ] Mr.

Turini conceded that in house league hockey body checking occurs and that referees in house league hockey should call every incident of body checking but they do not always. [ 194 ] When asked by Mr. Bains to explain the transition from contact hockey to non-contact hockey, Mr. Turini explained it as follows from line 13, page 47 of the January 26, 2016 transcript: Q. …Some players are either fresh off of rep when they go into house, correct? A. Yeah. Q. Or they’re – some of them are even trying out for or playing high school hockey at the same time? A. Yeah. Q. And, and high school hockey like rep is contact? A.

Yeah. Q. You – when you were talking to the police back in November of 2011, that’s just over a month after the, the injury... A. Yeah. Q. ...to Carter, you told the police that, that, that you play high school hockey, which is contact, and that with respect to the guys that are in house who also are, have recently played contact, that some of the guys get mixed up even though everybody knows, you know, sort of intellectually that it’s not, that it’s not contact in house... A. Yeah. Q. ...what did you mean by that?

A. Well, if you’re – like, I know when I was playing high school hockey you’d go from, like, a high school hockey practice right to a house league game so you’re kind of in that, that mode of play the body, play contact hockey.

It’s faster, it’s – like, it’s more so – and you, you’re at high school hockey a lot more than you’re at house league hockey, so you’re just kind of, like, switching between the both. [ 195 ] He further indicated there was more of a division for him personally when going from rep hockey to house league hockey and agreed that even more potentially confusing for a player would be adding high school hockey into the mix. [ 196 ] Mr. Turini had had experience playing both high school hockey and house league hockey at the same time. [ 197 ] I found that Mr. Turini was a particularly helpful witness.

He was in the same age range as the defendant and had similar prior hockey experience in rep hockey then transitioning to house league. His insight as to the difficulty in transitioning to house league during the “first few games” for rep hockey players and that some of them “get mixed up” is corroborative of the evidence that J.K. presented in this case. [ 198 ] Additionally, Mr. Turini was an unbiased witness. He was playing on the opposite team from J.K. and did not know him very well.

Despite the potential for bias, he, in my view, was quite helpful to the defence that was advanced in this case and was an important witness in my consideration of the evidence and arriving at my ultimate decision. 3.6 Evidence of Stephen Heron [ 199 ] Stephen Heron was the next witness called on behalf of the Crown. By profession, he is a teacher. Mr. Heron was one of the two referees who officiated this particular hockey game between the Senators and the Flyers. Mr. Heron is also the referee who made the penalty call on the hit to Carter O’Neill. [ 200 ] Mr.

Heron explained that both referees have the ability to make a penalty call, but, generally speaking, it is the referee that is closest to the infraction who is responsible for making the call. The other referee is tasked with picking up on peripheral incidents that may occur during the call. [ 201 ] Mr. Heron played approximately seven years of house league hockey and four years of minor rep hockey before advancing to a Junior B hockey team in Thunder Bay where he was attending university.

Junior B hockey is more of an elite level of hockey than a BLOMHA level rep league. [ 202 ] When asked to explain the difference between house league hockey and rep hockey, Mr. Heron indicated that, depending on the avenue of pursuit for a hockey player, the main difference is the skill level of a player. [ 203 ] Mr. Heron began refereeing in 2004, the year he received his Level 1 certification. He had to complete an on-ice session, training and a written test to achieve this certification.

He subsequently received his Level 2 and 3 certifications where the testing requirements and time investments were incrementally more involved. He indicated that his Referee-in-Chief had approached him to complete his Level 3 certification and he did so in Thunder Bay. [ 204 ] Mr. Heron indicated that not even 10 per cent of referees in the BLOMHA organization are Level 3 referees. [ 205 ] In Thunder Bay he refereed house league and men’s hockey. Upon his return to the Region of Halton, he began to referee more rep games in Oakville and Burlington.

He has been a referee and a linesman for the Burlington Eagles organization and has worked with all age groups of hockey at the A, AA and AAA levels. [ 206 ] He stated that he began refereeing with BLOMHA in 2011 and stopped in 2014 when he started his family. While with BLOMHA, Mr. Heron officiated for both house league and rep hockey games at various levels. [ 207 ] When asked by the Crown about whether there was a code of conduct for referees, Mr.

Heron indicated that the governing rules are that referees must show up early for a game dressed in a shirt and tie and be available to deal with any pre-game issues. They are also tasked with crowd, audience and bench management, as well as with what happens on the ice. [ 208 ] As a referee, he indicates that during the course of play he is mindful of the fair play initiative and making sure that everyone is protected on the ice. He agreed he absolutely has a duty as a referee to be neutral in all aspects of player conduct and enforcing the rules of the game.

He indicated that it “keeps the cohesiveness of the game” and that there “shouldn’t be bias to either team.” [ 209 ] Mr. Dibski produced an excerpt from the Referees Case Book/Rule Combination that was made Exhibit 3 in this trial, as well as the official game report from the game in question which was made Exhibit Number 4. Mr. Heron agreed that that was the game report from October 11, 2014 upon which his name appears as a referee. [ 210 ] Mr.

Heron explained that a game sheet is generated for house league games at the head office and is provided to the referees by the timekeeper to review prior to each game to ensure there are the required number of players indicated on it after the respective coaches and/or trainers have completed filling it out. [ 211 ] When asked about whether rep and house league hockey have differing objectives, Mr. Heron replied at page 13 of the January 27, 2016 transcript as follows: A. Everybody wants to win, of course, but – and everyone likes to compete, it’s just in different levels.

I’d say house league is a lot more based on having fun and being competitive, whereas – and hopefully rep is, but a lot of times there’s a significant difference between the, I guess the body language and the mood of the players, I guess, in terms of house league and rep hockey.

[ 212 ] He explained that there is an over-arching fair play initiative in house league hockey and the only reason why a house league player may be held back from ice time would be if t

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