Judge: 'Criminal code takes precedence over on-ice code'

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The Canadian Press
9/18/2009 6:13:34 PM
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MONTREAL -- A judge sent a message to hockey players across the country Friday that there are legal consequences for on-ice behaviour, and limits to the kind of thuggery that can be justified by the game's unwritten code of conduct.

In a case that can now be cited as jurisprudence across Canada, the Quebec judge handed a guilty verdict to a former major-junior player for a two-handed cross-check he delivered to the mouth of an opponent.

The blow occurred during a Quebec Major Junior Hockey League skirmish last fall, amid an increasingly aggressive series of shoves where the defendant was spurring his opponent to fight.

That behaviour may be part of a time-honoured fisticuffs ritual on the ice. But, in a courtroom Friday, it was deemed assault with a weapon.

While there have been a number of high-profile cases involving National Hockey League players, convictions have been extremely rare at the amateur level.

"His actions are sufficiently grave to be criminal," Quebec Youth court judge Jacques A. Nadeau ruled in an exhaustive ruling rendered Friday.

Crown prosecutors hope the message will be heard on hockey rinks across the land.

Prosecutor Ellen Baulne says, however, that she doesn't anticipate a flood of hockey-related cases as a result of the ruling.

"I think that every case will have to be looked at upon their merits and upon the facts also," said Baulne.

"I think that, in any sport, everyone should know that you cannot go overboard and you have to respect the law."

The judge said it's clear the law extends to hockey arenas, and that players need to understand that there are limits to the legal argument that players have consented to physical harm simply by being on the ice.

"The (victim) could not be presumed to have consented to the blow dealt to his face by (the accused) with his stick," Nadeau said.

"This deliberate and voluntary action on his part was unprovoked, unfair, excessive and dangerous."

A publication ban prevents the names of the accused and the victim from being made public.

Nadeau said he did not believe the actions were accidental, as the accused had testified.

The defence argued the accused was merely following hockey's unwritten code of engagement and that the stick attack in the QMJHL game was accidental.

But Nadeau said the court did not subscribe to that code.

"The fast-paced nature of the game of hockey makes it impossible to draft an exhaustive list of expected behaviours to particular situations such as the one (before this court)," Nadeau said.

"This is especially the case when the game is being played by young men between the ages of 17 to 20 -- albeit in a semi-professional league -- who are in a learning mode and are confronted with these situations on a regular basis."

After a whistle stopped play, a melee ensued with players from the two teams squaring off.

Defence lawyer Richard Shadley argued his client was trying to ensure none of his teammates were outnumbered.

The accused matched up with the only opposition player on the ice without a sparring partner and cross-checked him to the chest in an attempt to engage him before striking him in the mouth, knocking him to the ice.

The entire incident lasted about four seconds.

The victim needed a stitch to fix the wound and missed about six minutes of the game before returning to play.

During the trial, a QMJHL official testified that fighting remains part of the game -- although Pierre Leduc said the number of incidents have nearly been cut in half.

But the league expresses no intention to eliminate fighting altogether.

The Crown is asking for probation and a $1,000 fine, while the defence wants the accused to get only a reprimand.

"I think a test case was made out of this young man and I'm surprised it was made here (in youth court) where there is no publicity," said Shadley, the defence lawyer.

During sentencing arguments, Shadley said that his client's actions pale in comparison to high-profile NHL assaults such as Marty McSorley's 2000 stick attack on Donald Brashear, or Todd Bertuzzi's 2004 sucker-punch on Steve Moore.

McSorley received 18 months' probation while Bertuzzi received a sentence of one year's probation plus 80 hours of community service.

Shadley argued that unlike those cases, his client's incident was isolated and accidental.

"He's paid more than enough for what he's done," Shadley said, referring to the arrest and court proceedings.

Nadeau will hand down a sentence on Dec. 14.

The accused, who was 17 at the time, was facing one count of assault causing bodily harm and a second charge of assault with a weapon, but the judge ordered a stay on the bodily-harm charge.

Hockey Net (Photo: Bruce Bennett/Getty Images)

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(Photo: Bruce Bennett/Getty Images)
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