When I began this blog a few years ago, I planned on posting periodically to counter some ‘expert analysis’ that I saw out there in mainstream papers and the blogosphere. After Zack Kassian’s high-stick caught Sam Gagner in the face last Saturday night in Edmonton, some journalists and bloggers rushed to put their take online for others to read. Most were very level-headed, but one particular tweet caught my eye.
That's from a prominent Edmonton Oilers’ blogger named Tyler Dellow (@mc79hockey), who often writes level-headed pieces about his favourite team, advanced statistics, and various other topics that catch his eye.
I’ve been a fan of Tyler’s stuff for some time and was one of the first to retweet and share his piece on Colin Campbell and his emails about Marc Savard – before the mainstream media got it. Since that article, Dellow has generated a larger loyal following of readers.
In part due to his Colin Campbell story, I feel that Dellow’s notoriety as a blogger also comes with responsibility. As a popular hockey blogger, his pieces represent other bloggers and the legitimacy of their work, which are often contrasted as 'sub-par' from published journalists that you’ll find in your newspaper each morning. Furthermore, when a writer has higher education in a particular area (such as law), I would argue that they also carry the responsibility to be unbiased and fair in analysis, to prevent offering opinions as fact to impressionable readers.
That being said, when Dellow suggested that he might write a piece about the Kassian / Gagner play from a Criminal Law perspective, I wholeheartedly encouraged him to do so.
Much to Dellow’s credit, he published a nice piece that puts forward an argument in favour of charges being laid against Zack Kassian.
Now, if you’re seeking representation for a criminal matter – Dellow is probably your guy. He’s a criminal lawyer, and I am not. Zack Kassian could afford better representation than me. I’m a Criminology graduate who has worked with criminal records for years, and done considerable research on the Brashear / McSorley incident and the Bertuzzi / Moore incident over the years, but I’m not a practicing lawyer, nor did I get many gold stars as a student.
But, as I read Dellow’s various tweets and articles on the subject, I couldn’t help but disagree with his analysis. He does an excellent job of laying out various case law around the issue of implied consent to force (violence) on a hockey rink, but I feel he misses some important points.
Consent to Force/Violence in Hockey
In the area of consent, some have argued that there is a certain element of accepted risk involved in playing professional hockey. I would agree, and Dellow aptly covers this topic. To give you the gist of the argument, pretty much any action in a hockey game would be considered assault on the street in day to day life, based on the relevant legislation in Canada. Section 265 of the Criminal Code provides as follows:
265. (1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
Now, different cases over the years have determined that there is implied consent amongst players that step onto the ice regarding the allowable amount of force employed. Depending on if you play in a beer league, or professional hockey, the level of force consented to will vary, with the NHL most likely having the highest threshold for acceptable force. Dellow covers this well, citing the R. v. Cey decision from the Saskatchewan Court of Appeal:
“As a general matter, conduct which is impliedly consented to can vary, for example, from setting to setting, league to league, age to age, and so on: See R. v. St. Croix, (supra) at p. 124. In other words, one ought to have regard for the conditions under which the game at issue is played in determining the scope of the implied consent.”
“Different levels of violence become criminal in different levels of hockey. This seems sensible to me. I play in a men’s league. Guys have to go to work the next day. Nobody’s getting paid. There’s no crowd to entertain. It’s sensible to think that what is impliedly consented to by me stepping on the ice in my league is different than what Sam Gagner impliedly consents to when he steps onto the ice in the best league in the world.”
So we are in agreement that Sam Gagner impliedly consents to a greater level of force in a game than we consent to in a casual beer league game, but, Gagner’s consent is still not at a high enough level to include being intentionally slashed in the face and having your jaw broken. This is discussed in R. v. McSorley, and highlighted by Dellow in his argument (emphasis mine):
“The policy of the common law will not affect the validity or effectiveness of freely given consent to participate in rough sporting activities, so long as the intentionalapplications of force to which one consents are within the customary norms and rules of the game.
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 of force which clearly extend beyond the ordinary norms of conduct will not be recognized as legitimate conduct to which one can validly consent.”
The problem here for Dellow is that he takes for granted a very important detail at this stage of his argument - intent. McSorleyadmitted to having the intention of slashing Brashear in the upper body, near the shoulder, to instigate a fight. That's important. Even if we return to the definition of assault once again, it would require that McSorley or Kassian“applies force intentionally”.
You cannot base a decision in criminal law solely on the level of injury sustained by the victim, or by the act itself (otherwise, any high-stick of errant slap shot that causes an injury might be grounds for criminal charges). For lowly Criminology graduates such as myself, it falls back to the actus reus (guilty act) and mens rea (guilty mind). Both must be present.
Dellow has shown that the injury sustained and force employed exceeds that which Gagner has consented to, however, this argument is a bit of straw man. It’s not the real issue. McSorley and Kassian both demonstrate the actus reus of swinging a hockey stick and hitting someone’s head, but that’s where the similarities end.
In R. v. McSorley, it was successfully argued that McSorley intentionally attempted to slash Brashear in the shoulder, while being aware of a) the danger (likelihood of injury) in slashing someone in close proximity to the head and neck, and b) the fast pace of the game and sudden changes in direction that create a razor-thin margin for error. Basically, McSorley intentionally did something stupid with a high likelihood of error when he should have been aware of the risks and known better.
So, did Kassian intend to slash Gagner in the face, or at all?
If you ask Dellow, “Kassian got beat by Gagner and wanted to take a pound of flesh anyway.”
Well, that’s pure fabrication.
In fact, Kassian has not indicated anything to that effect, and proving that beyond a reasonable doubt would be difficult to prove in court.
If you are unfamiliar with the burden of proof in various courts, I’ll help you out. It's not just as simple as 'innocent until proven guilty'. If this case were tried civilly, the burden of proof would be lower, and Gagner’s counsel would only need to prove ‘on a balance of probabilities’ that Kassian intentionally slashed Gagner beyond a level of force consented to in an NHL game. That basically means ‘more than a 50% chance’. However, since Dellow is discussing criminalcharges, the burden of proof lies on Gagner’s side to demonstrate beyond a reasonable doubt – that Kassian intended to injure Gagner.
So, the real question is…is there proof (of the highest standard used in Western jurisprudence) of Kassian’s intent to injure Gagner to such a degree that no other logical explanation exists?
I suppose it depends on if you’re wearing Oiler-coloured glasses or not. If you look at the video, you’ll see that Kassian is not even looking at Gagner when he swings his stick, and when it hits him. That should not exhonerate him on it's own, but in R. v. McSorley, the fact that McSorley “aimed” at Brashear was cited numerous times, and was relevant in the decision.
Should Kassian have control of his own stick? Absolutely. Did he intentionally slash at Gagner to injure him? Boy, not sure. Watch the video again. Kassian’s other arm also flails out, suggesting he may have been off-balance. A second stick in his right hand might’ve done the same thing in the other direction. Moreover, there does not appear to be a snapping motion to his left arm, indicating a desire to increase force of the swing.
Now, as Kassian’s fictitious counsel, remember that I do not have to prove that Kassian was off-balance. The burden of proof does not rest on us. The burden of proof lies on Dellow, as Gagner’s fictitious counsel, to demonstrate that Kassian purposely slashed Gagner with the intent of injuring him beyond a reasonable doubt.
I don’t know about you, but I have my doubts. Does this look like the face of someone who intentionally does anything?
When it comes to proving intent beyond a reasonable doubt, crown counsel in R. v. McSorley had more than just video of the act. They had the benefit of the context of the game and previous altercations between the two men - Brashear riling up the Boston bench earlier in the game after beating up McSorley in a fight, and McSorley’s repeated (failed) attempts to instigate another altercation, and McSorley’s desire to settle the score before the end of the game to avoid suspension.
With Kassian and Gagner, we have no previous history with these players. Gagner is not a fighter, and alleging that Kassian was attempting to goad him into a fight is silly. It was a 2-1 game in the second period, and Kassian and the team would gain nothing emotionally from pummeling a smaller player, and there was no retribution to be sought from an earlier incident against Kassian or another Vancouver Canucks’player.
Basically, there is no context for Kassian to commit such an act, and there is significant doubt as to his intentions.
Can an argument be made that Kassian’s actions were criminal? Absolutely. But in the infamous words of Chris Rock:
"Shit, you can drive a car with your feet if you want to, that don't make it a good fucking idea!"
All jokes aside, Dellow does an excellent job of articulating how this case could be put before the courts. In fact, his account for the level of consent implied in an NHL game explains why Corey Tropp of the Buffalo Sabres likely would not have a case for his broken jaw, suffered during a fight (an acceptable level of force in the NHL) the same night as Sam Gagner’s in Edmonton.
However, in light of the lack of evidence proving Kassian’s intent to slash Gagner or cause injury, the argument really doesn’t hold any water.
Basing criminal charges on the injury sustained from an accident without proving intent would open a huge can of worms. That’s long been a complaint ofmine with the NHL’s supplementary discipline 'system', a complaint shared by many NHL fans.
Dellow closes his article by saying
“I’ve had people on Twitter who have criminology degrees (editor's note: THAT’S ME!) or who are “aspiring law people” condescendingly explain to me that I’m wrong and that Kassian is ok because there’s no intent. With respect, the intent that’s necessary was the intent to swing his stick at Gagner. What he intended to hit is relevant in terms of determining whether it’s within the scope of the violence to which Gagner consented – if, for example, Gagner had fallen, and caught a slash intended for his shins in his face, it’s different – but when you swing a stick blindly and high back at a player, you intended to strike him high on the body.”
Again, Dellow is taking for granted that Kassian intended to swing his stick at Gagner, and that it wasn’t an accident. Moreover, he’d have to prove that Kassian intended to slash Gagner in an area of his body that was likely to cause serious injury, as Dellow himself alleges would exhonerate Taylor Hall for this play.
Basically, Dellow puts forth an argument that Oilers’ fans might associate with, but that’s because it’s written by one.
Anyone who followed the Todd Bertuzzi / Steve Moore incident is familiar with how stupid putting suggesting eye for an eye violence in hockey is. When Dellow opens up his article agreeing with Oilers’ forward Ben Eager’s quote:
“We play them a lot down the stretch, and we’re going to go after their skill players also.”
By saying “he’s hit on the only rational response that a hockey player in the current climate can have”, he instantly loses credibility in my eyes for a fair and factual take on events.
I fully applaud him for articulating an argument on Gagner’s behalf, but the article fails to prove the assertion that Kassian deliberately swung his stick at Gagner’s head. Instead, the writer focuses too much time on the level of force exceeding that which is consented to during an NHL game. It’s all meaningless without proving the intent beyond a reasonable doubt...and don’t even get me started on his take on the Cold War!
Of course, I'm not a lawyer. But law degree or not, I'm pretty sure the only person who knew exactly what he was doing is Zack Kassian... and I don't think he's a lawyer either. What do you think?