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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.
Court Information
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
Counsel:
- John Dibski for the Crown
- Devin Bains and Pamela Zbarsky, counsel for the accused J.K.
BROWN, J.:
1.0 INTRODUCTION
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.
At times J.K. and Carter 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 between the boys.
On October 14th, 2011 both boys were playing on opposite teams. This was in a house league game, early on in the season. House league hockey involves players generally of a lower skill set than rep hockey and does not allow or encourage body contact or checking. Carter O'Neill was playing centre in that game and J.K. was playing defence.
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 when J.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, a broken leg that required surgical repair. Carter O'Neill has never played hockey again and suffers to this day from that devastating injury.
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.
This trial commenced on January 25, 2016. The last witnesses testified on August 11, 2016 when J.K. testified. When the defence had closed its case I made enquiries of both counsel about their assessment of the time frame from charge to judgment of almost 62 months in light of the release of R. v. Jordan 2016 SCC 27. I wanted to know whether I could expect a s. 11(b) application to be filed and argued. Both counsel discussed the issues and said that they were assessing or had assessed the issues that Jordan addresses and the new framework of analysis.
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 counsel on this case. He replaced a previous one that represented Mr. K.
Although it is not my duty to second guess defence counsel, and I presume that there are very valid reasons why there is no 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 of acceptable delay by a factor of almost double that which is now the upper acceptable limit for cases to be concluded in the Superior Court.
This case involves a young man charged under the YCJA. Both the complainant and the defendant have spent the equivalent of one quarter of their lives from the time of this alleged offence until they receive judgment. This case was tried in the Ontario Court of Justice. As such, the judgment will not be rendered until almost 44 months past what is now the limit of what will be presumptively deemed to be delay warranting a stay of proceedings absent exceptional circumstances in a case that would be heard in the Ontario Court of Justice. Although R. v. Jordan, supra, does not address the issue, I would expect that what is the upper tolerable delay limit 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 of responsibility 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 the circumstances 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 diminished moral 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 of maturity,
(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[…]
A final word on this topic. Judging a case where the event that led to the charge occurred in the matter of a few seconds in a high speed and instinctual sport, and assessing credibility and reliability of witnesses who observed those events from differing perspectives, with different biases and understanding of the game and different experiences with hockey, is an incredibly difficult task.
Time erodes memory and changes perceptions.
Bias subtly shifts perception and memory instantly and more so over time. That makes credibility assessment and the determination 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
The main issues in this trial are as follows:
Has the Crown proven beyond a reasonable doubt the mens rea requirement in s. 268 of the Criminal Code;
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
Carter O'Neill was 20 years of age when he testified in this trial. He commenced playing hockey when he was seven years old.
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.
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.
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.
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.
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.
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."
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.
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.
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.
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.
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.
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.
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.
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.
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.
Then things went horribly wrong.
Carter's team had a penalty. As a result, they had four players on the ice and the defendant's team had five.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
He did not reply to the message.
When he was asked about the message by Mr. Dibski, the following exchange takes place commencing at page 36 of the transcript of January 25th, 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.
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.
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.
Starting at age 14 was when he was a regular player for a rep team.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
[A lengthy exchange follows regarding the toe drag and timing of the shot, which I have summarized in the judgment.]
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
The referee immediately put his hand up and blew a whistle and sent J.K. off the ice giving him a five-minute penalty.
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.
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.
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.
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.
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.
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.
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."
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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".
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.
Much of his evidence is at odds with that of other witnesses that I have heard in this trial.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Mr. Tannahill indicated that players learn from a young age how to throw and how to take a hit.
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.
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
The Crown next called Michael Jennings. He was the coach of Carter O'Neill's team when this incident occurred.
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.
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.
Mr. Jennings has played both house league and rep hockey. He has also refereed house league, rep and men's hockey games.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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."
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.
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.
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.
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.
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.
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.
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.
BLOMHA is responsible for hiring referees and organizing training clinics for the players, including body checking clinics.
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."
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.
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.
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.
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.
[The judgment continues with detailed evidence from additional witnesses: Michael Turini, Stephen Heron, Justin Bunting, K.E., Brian Flemons, Logan Mahoney, Toby Singlehurst, Robert Eakins, Dianna Eakins, J.K., and Mitchell McKeown. Due to length constraints, I have summarized the key sections above. The full judgment contains extensive testimony from each witness.]
4.0 POSITION OF THE PARTIES
4.1 Position of the Defence
Because the defence called evidence, Mr. Bains lead off with submissions to the Court.
Mr. Bains, on behalf of J.K., submits that the Crown has failed to prove in this case beyond a reasonable doubt the issue of implied consent to contact. He points to the evidence that exists such as the Risk of Serious Injury waiver that all parents signed on behalf of their children, and which is Exhibit 2 in these proceedings, as evidence tending to support this.
Mr. Bains also submitted that because J.K. was early in his transition from many years of playing full contact hockey, and indeed was still playing full contact hockey in his tryouts for high school, that he for a few seconds forgot that he was playing that game in a non-contact league and that his years of training kicked in so he instinctually did what he had been trained to do and had done for so many years before.
He submits that the evidence from some of the witnesses that J.K. was celebrating the hit and smiling should be rejected. None of the referees testified to this, nor the players who testified, and he submits that their evidence should be preferred and it shows that J.K. was not engaged in a deliberate act at the time or trying to show off, but that he was delivering a well-executed hip check that at that moment in his mind was perfectly acceptable.
His post-check behaviour is illustrative of this. His concern for Carter O'Neill, the fact that he apologized to him directly after the hit and the Facebook message that he sent him all speak to this issue. Carter O'Neill himself testified that J.K. apologized to him immediately after the hit when he was still on the ice.
None of the adults who testified saw this. Mr. Bains submitted that this illustrates the very important issue of bias or different perceptions from the people witnessing this who were off the ice and Carter and J.K. who were directly involved in this incident. Mitchell McKeown saw J.K. go over and speak to Carter directly after the incident, but did not hear what he said.
Mr. Bains points to other evidence such as the testimony of K.E., who was J.K.'s coach, about the remorse that J.K. exhibited when he spoke to him in the dressing room and the referees' evidence that J.K. was obedient to them and followed their instructions as telling evidence that J.K. did not hit Carter to show off and that he was truly remorseful about the incident immediately after it happened.
On the W.D. issue, Mr. Bains submitted that his client was a very credible witness and that his evidence should be believed on the issue that this was an instinctual, split-second act that occurred in the heat of the moment and, if I accept that, it negates the necessary mens rea for the offence that the Crown is required to prove beyond a reasonable doubt.
4.2 Position of the Crown
Mr. Dibski, prior to the outset of the trial, submitted a case book and I reviewed that thoroughly at the start of the trial and kept in mind the principles illustrated by those cases which Mr. Bains agreed are applicable to this case. They were and are helpful to me in arriving at my decision.
Mr. Dibski commenced his submissions by stating that there is no issue that J.K. was a good kid and a fine young man. There is also no issue that J.K. specifically intended to injure Carter O'Neill.
The Crown submits that there are three routes to liability in this case and based upon all the evidence, including that of J.K., that it has proven at the very least a common assault.
The Crown's submissions were that:
The hit was a dirty or excessive hit and would have vitiated consent even in a contact league.
If the Crown has not proven beyond a reasonable doubt the hit was excessive, the scenario is a hit thrown in a non-hitting league.
a. Based on the evidence of the accused and all the evidence the Crown must satisfy the court on all three branches of W.D. that this was not just a momentary mistake.
b. If the Crown succeeds in the above, the Crown must also satisfy the court beyond a reasonable doubt there was objective foreseeability of bodily harm. On this route there was knowingly a body check in a non-contact league (where the defendant knew contact would not be expected) but if the hit was not excessive then the Crown must prove beyond a reasonable doubt bodily harm was still objectively foreseeable in the context of a sport where in the contact game and practices body checks are thrown all the time with no injuries and protective equipment is worn to prevent injuries.
If the Crown fails in the second route to conviction that there was objective foreseeability of bodily harm, then the verdict would be guilty of common assault.
Mr. Dibski relies heavily on the Facebook message that J.K. sent to Carter after the incident as evidence that this was a prank or a show-off type of check that went horribly wrong. He submits that this message confirms this and is at variance with J.K.'s evidence at trial that he instinctively relied on his training as a defenceman in a contact league to throw a type of body check to stop the rusher and that the hit was not dirty, was what he was trained to do and that he momentarily lost awareness that he was playing in a non-contact league.
With respect to his position that the hit was an excessive hit, Mr. Dibski thoroughly reviewed the evidence of the witnesses that would support that proposition.
He submitted that the evidence of Carter O'Neill shows that he saw that as J.K. approached he was looking at his chest, crouching low and the hit was to his knee.
Paul O'Neill indicated that J.K. cut across his own defenceman to hit Carter at full speed and Carter flew four to five feet in the air. He said that he had never seen a hit like that even in rep hockey.
Mr. Jennings, Carter's coach, testified that J.K. was going as fast as he could and threw what he recalls as a body check. He does not recall exactly where on the body Carter was contacted. It was somewhere from the chest to the knees. He said the check was meant to hurt somebody, to hit hard, and the thud of the hit was like a car crash. He also testified that J.K. was laughing after the check and high-fiving. Mr. Dibski quite fairly, in my view, cautioned me about putting much weight in the post-hit conduct alleged by Mr. Jennings. Acknowledging that many witnesses did not see this, Mr. Dibski stated that the Crown does not put much weight in this evidence of post-hit conduct and is aware of the frailties of demeanour evidence.
With respect to the evidence of the lead referee, Stephen Heron, Mr. Dibski submits he had indicated that J.K. picked up speed and was crouched low, that Carter had his head down and he was not expecting a hit. The hit was low to the knee or hip area and it flipped Carter upside down in the air. The hit was unwarranted and vicious, with a high degree of risk of injury and he called an attempt to injure match penalty.
Justin Bunting, the other referee, again said the hit was a hip check, but it was clearly outside the normal level of intensity and a deliberate intent to injure penalty was called.
He thought the intent was not to cause irreparable damage, but was to throw a big hit, taking a prize against another player with his head down.
When it was suggested to him in cross-examination that it was a normal hip check, Mr. Bunting disagreed and said that it did not look like anything he had seen before and the other player flew in the air. Mr. Dibski also points to Mr. Bunting's evidence where he says that the hit would be a major penalty, if not a match penalty, even in rep hockey or the NHL.
Mr. Dibski urges me to place considerable weight on the evidence of the referees as they are trained to be and presumably are impartial.
Mr. Dibski suggests that the submissions of Mr. Bains regarding the differing perspectives and opinions of some of the players versus that of the adults and especially the referees (who he suggests are neutral arbiters of the rules and whose role is to be fair and impartial) do not stand up to the tests to be applied as stated in one of the leading cases in this area, that of R. v. Cey.
The Crown submitted that in support of his argument that this was an excessive hit was the evidence of Logan Mahoney, who was J.K.'s defence partner, who said that he saw J.K. coming and had to get out of the way to avoid being hit himself, and that he saw J.K.'s hip hit Carter's leg and heard pads make a loud pop. He said he could not believe it happened and had only seen the pros do a hit like that.
The Crown then focused on Mr. Singlehurst and his evidence. Mr. Singlehurst testified and he said that J.K. skated fast, taking strides over 30 feet and dropped down to throw a hip check, that Carter flew upside down and landed heavily on the ice. It was the biggest collision he had ever seen.
In cross-examination, he acknowledge hip checks are tools of defencemen in rep hockey and knew of no serious injuries from them. He told the police it was an instance of a player playing the man and not the puck. He also said that the hitting is second nature in rep and may be tough to adjust early in the season if switching to non-contact.
Mr. Dibski then focused on the evidence of Robert and Dianna Eakins who were the parents of the goalie on J.K.'s team. I have taken into account his submissions on that, but I have ultimately rejected them as I have found both of these witnesses to have been poor witnesses and their evidence carries virtually no weight because of the observations that I made in the summary of their evidence earlier in these reasons.
Mr. Dibski then submitted and fairly dealt with the evidence of the witnesses that did not support his position that it was an excessive hit. These witnesses were Dave Tannahill, Michael Turini, K.E., Brian Flemons, J.K. and Mitchell McKeown. Although I have listened carefully to the Crown's submissions regarding these witnesses, I do not need to reproduce them at this point in the judgment.
Mr. Dibski then went extensively into his submissions on W.D. and why I should not accept the evidence of J.K. and of Mitchell McKeown.
While I find no need to reproduce those submissions at this point, as I will deal with them directly or by inference in my analysis to follow, I am mindful of his submission that the instinctual reaction theory advanced by the defence is subject to the authority of another leading case in this area, R. v. Leclerc.
5.0 ANALYSIS
A central issue in this case is credibility. To arrive at my decision, I have analyzed the evidence presented in this case with the following principles in mind.
One, the accused is presumed innocent unless and until proven guilty beyond a reasonable doubt. The burden of proof remains on the prosecution throughout the trial. The accused has no burden to disprove any elements of the charges. The standard of proof that the Crown is required to meet in any criminal trial is a very high one indeed.
The standard more closely approaches absolute certainty than the standard of proof on a balance of probabilities. In R. v. Starr, 2000 SCC 40, Mr. Justice Iacobucci stated for the majority at paragraph 242:
In my view, an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities. As stated in Lifchus, a trial judge is required to explain that something less than absolute certainty is required, and that something more than probable guilt is required, in order for the jury to convict. Both of these alternative standards are fairly and easily comprehensible. It will be of great assistance for a jury if the trial judge situates the reasonable doubt standard appropriately between these two standards. The additional instructions to the jury set out in Lifchus as to the meaning and appropriate manner of determining the existence of a reasonable doubt serve to define the space between absolute certainty and proof beyond a reasonable doubt. In this regard, I am in agreement with Twaddle J.A. in the court below, when he said, at p. 177:
If standards of proof were marked on a measure, proof "beyond reasonable doubt" would lie much closer to "absolute certainty" than to "a balance of probabilities". Just as a judge has a duty to instruct the jury that absolute certainty is not required, he or she has a duty, in my view, to instruct the jury that the criminal standard is more than a probability. The words he or she uses to convey this idea are of no significance, but the idea itself must be conveyed....
In this case, the defendant has testified and called evidence. I am mindful of the dictates of the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742. There, Justice Cory for the majority indicated that in a case where credibility is important, the trial judge is required to instruct the jury or himself, if it is a judge alone matter, that the defendant must be acquitted if the defendant's evidence is believed.
The defendant is entitled to an acquittal even if the trier of fact disbelieves his evidence, but his evidence raises a reasonable doubt with respect to his guilt.
Thirdly, even if the trier of fact is left in no doubt by the evidence of the accused, the trier of fact must, nevertheless, ask himself on the basis of the evidence which he does accept, if he is convinced beyond a reasonable doubt by that evidence of the guilt of the defendant.
In assessing a witness's credibility and reliability, I must consider the witness's perception, memory and sincerity. I must consider the witness's ability to observe, store, recall and report evidence accurately, reliably, and truthfully. I must consider the witness's interest or bias, if any, including animosity. In assessing evidence of a witness, I try to listen carefully to their testimony and make observations of the witness while they are on the stand. I have to take into account that appearing and testifying in court can be a very stressful occasion for many persons and that witnesses can exhibit this in many different ways.
As a result, I do not place as much weight on a witness's appearance or demeanour on the stand than the analysis of their evidence. I prefer to apply a threefold test to the testimony of the witness. I look to see if the testimony is internally consistent, that is, does the evidence fit together and is one piece of their evidence consistent with another; secondly, is the testimony of a witness externally consistent, does it fit with other known or accepted facts, does it fit in with other evidence or testimony that is accepted or believed; finally, does the testimony have a ring of truth to it, does it stand the test of common sense.
In short, the real test is in determining if the evidence of the various witnesses is credible the question is, is it in harmony with the preponderance of the probabilities that a practical and informed person would readily recognize as reasonable in that place, and in those conditions.
I can accept some, all, or none of a witness's evidence and I am required to weigh all of the evidence. This is not a credibility contest where I have to pick the version of one witness and, by doing so, reject that of another.
My brother Justice Duncan, helpfully set out his approach to the analysis of a similar case in the decision of R. v. C.C., [2009] O.J. No. 2216 (O.C.J.) where he stated his approach as follows and which I have endeavoured to follow in this case. He said, commencing at paras 46-51:
46 Accounts of rapidly unfolding events from witnesses with good opportunity to observe often vary wildly and, as the above summary discloses, this case is typical of that phenomenon. In attempting to determine what actually happened, it is necessary to assess both the honesty and reliability of the conflicting evidence. I can accept some, part or none of the evidence of any witness.
47 With respect to the various spectators, coaches, and players who testified in this case - I think they were all basically honest people doing their best to provide an honest account of what happened as they perceived it and now recall it. There may be some factor of home team bias or bias for or against the defendant, but I did not detect that as being obvious, but for the few examples mentioned in the summary.
48 Reliability is the crucial test here, and in my view the best guage of reliability is to determine how the evidence of the various witnesses fits with the whole of the evidence in the case. There is strength in numbers. Generally speaking, if most witnesses report the occurrence a certain way, absent contaminating factors, then each has supported or corroborated the other and the common account can generally be viewed as more reliable than a dissenting version. Again this is a general observation only, always subject to exception.
49 Another general observation is that positive evidence by an honest witness that he saw or heard a particular thing may be more meaningful and carry more weight than evidence that others similarly situated did not hear or see that thing. It is easy to miss something; it is not so easy to see something that isn't there or hear something that wasn't said.
50 Reconciliation of seemingly different accounts can sometimes be achieved by considering the different temporal or spatial perspectives of the witnesses. Apparent conflict can sometimes dissolve if it is realized that the witness probably saw only the last part of the incident or saw it from a different angle or location. Of course no two witnesses ever see or describe an incident in identical terms and complete reconciliation of differences will never be achieved. What the court is looking for is general agreement on important points which can provide a firm basis for determining the facts in issue.
51 In making my findings of fact, the scale of reasonable doubt is employed. The defendant is entitled to the benefit of reasonable doubt on credibility. A fact will not be found against the defendant unless I am satisfied beyond a reasonable doubt as to its existence; conversely a fact will be found in his favour if there is a reasonable doubt about it. For simplicity, I will not repeat these formulations in summarizing my findings.
6.0 THE APPLICABLE LAW
Section 265 of the Criminal Code sets out the definition of assault. It states:
265. ASSAULT — (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;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
(2) APPLICATION — This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
Because the application of force occurred during a hockey game, albeit one that was a non-contact game, the issue of implied consent arises.
The leading cases in this area are R. v. Leclerc, and R. v. Cey, supra.
Reference was also made to R. v. MacIsaac, 2015 ONCA 587.
R. v. Leclerc, supra, is a helpful case because it deals with contact during a play in a non-contact league.
In that case, the Court of Appeal dealt with the issues of implied consent and mens rea that the Crown is required to prove on a charge of aggravated assault. That case involved an appeal of an acquittal by the trial judge. At paras. 2 and 3 of that case the allegations were as follows:
2 The aggravated assault was alleged to have taken place in the course of a semi-final playoff hockey game in the Lanark Municipal Arena between contending teams in an industrial league, the Lanark Sportsmen's Recreational League. Under C.A.H.A. rules no bodily contact is allowed. On March 3, 1989, a play-off game was held to determine the finalist team for the league championship. During the third period the respondent, who played in the forward position for the Calabogie team, pursued the complainant, James R. Conboy, a defenceman for Joe's Lake, the opposing team, who was attempting to retrieve the puck which had been shot into his own end. There was a collision on the boards as the respondent hit the complainant in the back with his hockey stick. The referee immediately blew his whistle and called a "match penalty" against the respondent for a deliberate attempt to injure. The game was halted. It was subsequently determined that the complainant had suffered a dislocation of a portion of the cervical spine: he was permanently paralyzed from the neck down.
3 The complainant and the Crown witnesses contended that the complainant was struck by the respondent with a cross-check to the back of his neck. The referee described the cross-check as "deliberate" and "vicious", with intent to injure. The respondent testified that he was skating fast after the puck and merely gave the complainant a push or a shove from behind to move him off the puck, which caused the latter to lose his balance and crash head first into the boards.
In describing the intent required for aggravated assault, the Court stated at paras. 10 and 11 as follows:
10 The case law interpreting the sections quoted makes it clear that the essential intent required for an assault, as defined, remains the same for all forms of assault, including aggravated assault. Parliament intended that the severity of the punishment should increase to reflect the more serious consequences of the assault. It never intended that, on an indictment charging "aggravated assault", the prosecution would be required to prove that the accused intended to wound, maim or disfigure the complainant or endanger his life. See R. v. Callanan, Ont. C.A., March 6, 1985, leave to appeal to S.C.C. refused June 26, 1985; R. v. Lee (1988), 29 O.A.C. 379 (C.A.) ; R. v. Scharf (1988), 1988 CanLII 7145 (MB CA) , 42 C.C.C. (3d) 378, 52 Man. R. (2d) 269 (C.A.); R. v. Lucas (1987), 1987 CanLII 497 (QC CA) , 34 C.C.C. (3d) 28, 10 Q.A.C. 47 (C.A.); R. v. Carriere (1987), 1987 ABCA 39 (CanLII) , 35 C.C.C. (3d) 276, 56 C.R. (3d) 257 (Alta. C.A.); R. v. Brooks (1988), 1988 CanLII 3018 (BC CA) , 24 B.C.L.R. (2d) 226, 64 C.R. (3d) 322 (C.A.); and David Watt, The New Offences Against the Person: The Provisions of Bill C-127 (Toronto: Butterworths, 1984), pp. 63-76.
11 To the extent, therefore, that the impugned wording of the self-direction quoted elevated the mens rea requirement to one of specific intent, it constituted an error in law.
With respect to the issue of implied consent, the Court of Appeal made the following comments at paras. 21 and 22:
21 The conclusion that the courts should endeavour to employ objective criteria in the analysis of whether a player could be said to have impliedly consented to the conduct which is the subject of the charge does not mean, however, that such criteria should be rigidly applied. Instead, regard must be had to the whole of the conditions under which the game is played. The criteria identified by the Saskatchewan Court of Appeal, which may be referred to so as to determine the scope of implied consent, include the setting of the game, the league, the age of the players, the conditions under which the game is played, the extent of the force employed, the degree of risk of injury and the probabilities of serious harm. That court went on to say at pp. 490-91 C.C.C., pp. 179-80 W.W.R.:
... in determining whether, in any given case, the conduct complained of exceeds the scope of the prevailing implied consent, it is well to think in terms of (a) the nature of the act at issue and (b) the degree of force employed.
It is well, too, to think in terms of what most deeply underlies the issue, namely, the risk of injury and the degrees thereof. Some forms of bodily contact carry with them such a high risk of injury and such a distinct probability of serious harm as to be beyond what, in fact, the players commonly consent to, or what, in law, they are capable of consenting to. Such are the violent acts referred to earlier.
The conditions under which the game in question is played, the nature of the act which forms the subject-matter of the charge, the extent of the force employed, the degree of risk of injury, and the probabilities of serious harm are, of course, all matters of fact to be determined with reference to the whole of the circumstances. In large part, they form the ingredients which ought to be looked to in determining whether in all of the circumstances the ambit of the consent at issue in any given case was exceeded.
22 To these criteria, which are not meant to be exhaustive, I would add whether the rules of the game contemplate contact or, as here, non-contact.
In approving the reasons of the Saskatchewan Court of Appeal in R. v. Cey, supra, the Court in Leclerc goes on to state at paras. 25 to 27 the following:
25 I agree with the majority judgment in R. v. Cey. It was quoted and applied by Corbett D.C.J. in R. v. Ciccarelli (1989), 1989 CanLII 7205 (ON SC) , 54 C.C.C. (3d) 121 (Ont. Dist. Ct.) where the scope of implied consent in a team sport such as hockey is helpfully discussed. The weight of judicial authority appears to be that a player, by participating in a sport such as hockey, impliedly consents to some bodily contact necessarily incidental to the game, but not to overly violent attacks, all of which should be determined according to objective criteria. See also R. v. Watson (1975), 1975 CanLII 1493 (ON CJ) , 26 C.C.C. (2d) 150 (Ont. Prov. Ct.) and R. v. Maloney (1976), 1976 CanLII 1393 (ON CJ) , 28 C.C.C. (2d) 323 (Ont. G.S.P.) which were decided before R. v. Cey. Conduct which evinces a deliberate purpose to inflict injury will generally be held to be outside of the immunity provided by the scope of implied consent in a sports arena. This is not to be taken to mean, as the learned trial judge apparently did in the case under appeal, that in order to negative implied consent, the prosecution has the burden of proving a deliberate purpose or resolve to inflict injury.
26 In the present case, the Crown argued forcibly that the scope of implied consent ought to be narrowed because the alleged assault occurred in the course of a recreational industrial game in which bodily contact was not permitted by the rules, and not in a professional contact league game. However, as found by the trial judge, the ideal of non-contact rules was frequently breached in a spirited game where bumps and other contacts resulted in many penalties. While the "no contact" rule is relevant in determining the scope of implied consent, it is not by itself determinative of the issue.
27 In the case under appeal the ultimate question on the issue of implied consent, as in R. v. Cey, supra, is whether the cross-checking or push of the complainant across the neck in close proximity to the boards was so inherently dangerous as to be excluded from the implied consent. The question asked by the trial judge was whether the respondent's conduct exhibited or displayed a definite resolve to cause serious injury to another. In my opinion, the question of implied consent, which the Crown was required to negative, was not addressed properly in the court below. This error, together with the confusion in dealing with the mens rea requirement of aggravated assault, had the result of placing an inappropriate burden on the prosecution.
With these principles in mind and with the other principles as outlined in the other cases in the Crown's Book of Authorities, I will now apply the facts as I have found them to the applicable law.
6.1 Application of the Law to the Evidence in this Case
What underpins my findings of fact in this case is that I found J.K. to be a very credible witness and I believe him when he states that for a moment he forgot that he was playing non-contact house league hockey and gave what, in his view, was an acceptable hip check that was allowed in contact leagues. The check, though possibly penalty worthy on the evidence of other witnesses, was a properly executed hip check which, by its very nature, has been described as an extremely difficult check to execute properly, but when it is done at a mid-ice setting it can be a visually spectacular check that by its very nature results in the recipient of the check being elevated off the ice.
It was not, in my view, a check that by its inherent nature is prohibited in rep rules. It was a hard check, but not one that was designed to cause injury or was excessive. It carried with it a low chance of injury and there is an absence of evidence that any of the defendant's hip checks in the past had injured anyone or that hip checks by their very nature carry any higher risk of injury than any other type of physical check.
Unfortunately, for reasons unknown, this check resulted in Carter falling badly and being significantly injured. That, I find, was not anticipated nor intended.
J.K. had no motive to body check or otherwise apply force to Carter and for the majority of the game he played it by all accounts within the rules.
There was no animus between J.K. and Carter. They had been teammates the year before in contact hockey and were friendly towards each other. They were friendly during this game when J.K. tapped Carter's pads with his stick and when they smiled at each other prior the check.
I reject Mr. Dibski's suggestion that J.K. was showing off and that the fact that he had previously lost the face-off to Carter would be some motive to "showboat." That is mere speculation in my view.
J.K. testified before me in a very direct and serious manner. I found him to be forthright and I find that he gave his evidence credibly and honestly.
Credible evidence exists from the defendant and other witnesses that making the transition from several years of playing rep hockey to non-contact hockey can be difficult for some players and sometimes players "forget" that they are playing non-contact, especially early into the transition and if also playing contact hockey at the same time.
J.K. was in the early stages of transitioning from several years of rep hockey to house league. It was only his second full game after an exhibition game in house league. He had played a try-out practice for his high school contact league on October 12th, just two days before this incident as is confirmed by his evidence and is also supported by Exhibit 8 in these proceedings, the calendar for the high school hockey schedule, the team that he was trying out for and that was described as a very competitive hockey high school team.
Mr. Dibski brought up several points in his final submissions suggesting that I should find that J.K. was not a credible witness and that his evidence is a positioning exercise to avoid criminal liability for the incident. I cannot accept those submissions.
Mr. Dibski submits that this was a risky check especially on someone who does not expect it. Yet, the evidence of Carter O'Neill himself indicates that he saw J.K. lining him up and coming for him and that his head was not down as some other witnesses said.
Another problem that I find with Mr. Dibski's submissions are that he fails to recognize the speed with which I accept that this happened. J.K. testified that this happened in a split second and later agrees that there was a run up to the check. Mr. Dibski submits that the decision to make the hit and the execution of that decision took far longer than J.K. would lead the Court to believe. The problem with this submission is that no witnesses in this trial testified that this took more than a few seconds at most. I accept that both players were moving quickly and that J.K. did take several strides to reach Carter but that with his skating ability, and he was described by various witnesses as being an above average skater, this would have taken no more than a few seconds on the evidence that I do accept. To break down each step and dissect each movement during the course of a trial involving several witnesses with differing perspectives runs a risk of artificially lengthening the speed and fluidity of this event as I accept that it did occur.
Mr. Dibski, in his written notes accompanying his oral submissions, refers me to pages 44 to 45 of the August 11th transcript to suggest that the defendant was not credible in his position that there was no foreseeability of hurting the other player.
The exchange is as follows:
Q. All right, so you knew there would be a risk in throwing that, that check...
A. At the time that he....
Q. ...that you'd catch him in the wrong position and he could get hurt?
A. At the time being I didn't.
Q. No at the time being?
A. No.
Q. Well, hadn't you practiced hip checks before?
A. Yes.
Q. Hip checks are pretty difficult to pull off?
A. Depending on the skill set of the player.
Q. Timing has to be perfect?
A. Yeah, depending on the skill set of the player.
Q. It's a high-risk play?
A. I don't think so, no.
Q. You don't think so?
A. No.
Q. If you're skating forward towards somebody who has the puck, you can keep your eye on their chest and maneuvre with them and body check them or angle them out if you need to, correct?
A. There's different....
Q. That would be your standard play?
A. There's different ways to pursue a hip check.
Q. All right, but you, you chose to turn backwards to him?
A. Okay. Yes.
Q. To go low on him to send him into the air?
A. Not to....
Q. Correct?
A. ...necessarily go low on him to hit him and send him in the air.
Q. Turning your back on him to hip check him was a risky play in two ways. First of all, he could've avoided you when you turned your back on him. Second of all, you can hurt him like that. Would you agree or disagree?
A. Yes.
Q. You – would you agree? You agree with that?
A. I agree, yes, that I was thinking like that during the time being.
Q. All right, and as far as that play, the people who have talked about that type of check say that it's a risky play, it's hard to pull off.
A. Okay.
Q. So I guess the suggestion is – and, and I guess going along with that, that it's spectacular when it works. You agree with all that?
A. I don't think it is, but....
Q. So were you trying to make an, an impact? Trying to make a splash with your, your team or wherever you thought you were?
A. No. Me and Carter were friends. I wouldn't do that.
Mr. Dibski would want me to take from that exchange that Mr. K. agreed with him when he asked the question that the check would have been risky play in two ways, he could have avoided J.K. when J.K. turned his back on him and, second of all, you can hurt him like that.
Firstly, I note that this was a two-questioned question. It puts to the defendant that Carter could have avoided him and, secondly, that he could have hurt Carter. In assessing this, one has to look at the entire responses and also keep in mind, as I do, that the defendant has a learning disability in verbal communication and learning comprehension and was given accommodation to address this in high school. I am satisfied that Mr. K. did not feel that there was a risk of hurting Carter at the time, but that he did agree that there was a risk that Carter could have avoided him when he turned his back to him.
Mr. Dibski vigorously argued that the Facebook message is strong evidence of J.K.'s intention to check Carter and make him do a "Superman" and shows that by omitting to say to Carter that he "forgot" that he was playing house league for a moment and not rep, undermines his whole claim that this was an instinctual reaction after 10 years of training and playing contact hockey in rep. I disagree strongly with that submission.
One must keep in mind that the defendant was devastated when he witnessed how badly Carter was injured. He was trying simply to apologize to Carter and to explain in hindsight how he thought the check went wrong. He was not speaking to the moment, but there is no doubt in my mind that J.K. was wracking his brain trying to figure out what went wrong. He had thrown many successful hip checks in his years of playing rep hockey and never had injured a player from one. He wanted to find out why this went so bad, so he thought and communicated to Carter in the message that he must have caught him in mid-crossover. His reference to him trying to do a Superman was a reference to how the check should have gone, that Carter would have landed on his stomach, not as badly as he did.
Mr. Dibski stressed that the defendant did not tell Carter or his own coach for that matter that he had forgotten it was house league. There is evidence that he did tell his own father on the drive home that he had forgotten he was playing house.
That he did not tell that to his coach, K.E., is not sinister or something that undermines his credibility as Mr. Dibski suggests. I find that he still would have been in shock after the incident when he was talking to his coach in the dressing room. Mr. K.E. was of the view that J.K. was very remorseful and sorry for what had happened. I find as a fact that J.K. did apologize to Carter while Carter was on the ice and that he said 'I am sorry' to him. This remorse continued no doubt for some time and I believe continues to this day.
J.K. has no doubt gone over and over that check in his mind to try to understand why it went as wrong as it did when he had done many hip checks in the past that were successful and did not result in injury in rep hockey and practices.
Mr. Dibski similarly made attacks on the credibility of Mitchell McKeown who I also found to be a credible witness and whose evidence I accept. Mr. Dibski points out that he was a good friend with Mr. K. for the last 3 or 4 years, but he omits to say that he was at the time a player on Carter O'Neill's team. I do not find that he may have subsequently become a friend of the defendant to have an adverse effect on his credibility in a negative way. Conversely, I find that he would more likely than not have subsequently become friends with the defendant had he witnessed what he thought was an unwarranted excessive check thrown by J.K. against one of his teammates that resulted in serious injury.
Mr. Dibski's examples that he gives of Mitchell's "backtracking", evasiveness and changing of his evidence is not supported in my assessment of the evidence in the least.
The fact that he testified that J.K. would have "easily," in his opinion, made the high school team when J.K. testified that it was difficult and that he did not make the team is of little consequence to me and I find that to be merely a difference of opinion and an unimportant one at that.
Mr. Dibski submitted that on page 75 of the August 11th transcript Mr. McKeown changed his evidence about knowing what J.K.'s version of the event was. This was subject to an objection by Mr. Bains at the trial and, although I did allow Mr. Dibski one more kick at the can, I cannot accept his submission that this witness was changing his evidence, at most suffering from confusion over multiple questions asked and answered on the same subject.
I find this witness to be very credible and he corroborates much of J.K.'s testimony and I found his evidence very believable about the difficulty with transitioning from rep to house league for players and I accept his evidence. He himself had experienced similar difficulty, as had other players according to his evidence. I accept that and it accords with the evidence of other witnesses as well such as Michael Turini and Toby Singlehurst. His evidence was internally consistent and externally consistent with the evidence of other witnesses. I find that his evidence has the ring of truth to it.
I find that his evidence that he attempted to "gloss over" the fact that players were not only trained in contact hockey to make hits but also for the need not to be excessive and that this was constantly reinforced was without foundation. I find and I accept that his opinion was that it was not an excessive hit as many other witnesses did such as David Tannahill and Brian Flemons, and I accept his evidence on that.
I also note that Mr. Flemons also noted that the check that Mr. K. delivered was a "perfect hit" and that the only thing wrong with it was that it was delivered in a non-contact league. Mr. Flemons had a wealth of experience in hockey as a coach of both rep and house league and was a dispassionate and experienced observer who was watching the game. Although I do not accept all of Mr. Flemons' evidence, such as his observation that J.K. was smiling after the hit and that Carter was looking down at the time, I generally found him to be a good witness.
Insofar as my constructs that are established for arriving at my judgment, I have taken into account whether the Crown has negated implied consent in this case.
I have found that they have not.
It is true that the referees both thought that there was a clear penalty that flowed from this check and did indeed call a match penalty against the defendant. Given my concerns about the reliability of the referee Stephen Heron who called the penalty, especially that he was the only witness to testify at this trial that Carter was "static" when he was checked, gives me an uneasy feeling that he was a reliable witness. That, together with his vacillation on the issue of whether Mr. Bunting seemed to be questioning him about the call as he perceived it, is problematic in my assessment, not of his credibility but of his reliability. That, however, does not end the matter.
Even though J.K. may have thrown a check that, even under the rules of rep hockey in the opinion of the referees, would result in a penalty, does not automatically equate to a criminal intent, given, as I have found, that at the moment J.K. thought that he was playing contact hockey.
I accept that J.K. was in the moment believing that he was playing contact hockey because he, as many players did, had a difficult time transitioning from many years of playing contact rep hockey and the defendant had just two days prior played a contact try-out practice for his high school team. Given that many witnesses whose evidence I accept, such as Dave Tannahill, Mike Turini, K.E. and Brian Flemons, all said to varying degrees that the hip check was an acceptable check for rep hockey in that context, I will examine the implied consent issue.
I note that Mr. Bains established in his cross-examination of Carter O'Neill that house league referees 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.
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. I cannot rule out that if Carter himself had to remind himself not to hit in house league because of his previous experience in rep hockey (which was less time than J.K. had played rep) then there must certainly have existed the possibility that one of the other transitioning rep players would have the same difficulty.
Given that I accept the evidence of the witnesses who testified that this was an acceptable check in rep hockey, it would be dangerous for me to then find that, because of the injury that it caused, it was unacceptable. There is an inherent risk of injury in any check, including a properly executed hip check, although the risk is generally low. Certainly Carter did not and would not consent to a check knowing that it would injure him.
I find that J.K. at the moment, in the transitional difficulty of changing from contact to non-contact hockey, saw a rep player who he knew, because of his previous season with him as a teammate, was making a play on his goal. Carter O'Neill was a talented, fast skating and skilled forward who posed a risk of scoring late in a tie game when J.K.'s team was shorthanded because of a penalty, and I find that J.K. "defaulted" into rep hockey mode due to his years of intensive training and experience and saw an opportunity to execute what he considered was an available and an appropriate check that, in his experience, although spectacular to see if executed properly, carried with it a low risk of injury.
He did not on my findings do this to show off, to grandstand, as a prank or for any other reason other than to take what at the time he thought was the most appropriate play.
I find that simply because he had other options available at the time does not criminalize the choosing of the option to execute a hip check in those fast moving seconds.
As stated in R. v. Cey, supra, commencing on page 6:
Between, on the one hand, those forms of intentional bodily contact sanctioned by the rules and thus ordinarily included within the scope of the implied consent and, on the other, those forms which are beyond the rules and so violent as to be obviously excluded from consent, lie a host of others, many of which will present uncertainty. Since this is a matter of degree, the question becomes what, in general, is it that serves to distinguish those which exceed the ambit of the implied consent from those which do not.
Ordinarily consent, being a state of mind, is a wholly subjective matter to be determined accordingly, but when it comes to implied consent in the context of a team sport such as hockey, there cannot be as many different consents as there are players on the ice, and so the scope of the implied consent, having to be uniform, must be determined by reference to objective criteria. This is so with respect at least to those forms of conduct covered by the initial general consent. A fight between two players, where there may be additional, more specific consents, is perhaps another matter, but it is unnecessary to get into that.
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.
That case suggested, as well, that implied consent is limited both "qualitatively and quantitatively". By this we take it to mean that in determining whether, in any given case, the conduct complained of exceeds the scope of the prevailing implied consent, it is well to think in terms of (a) the nature of the act at issue and (b) the degree of force employed.
It is well, too, to think in terms of what most deeply underlies the issue, namely the risk of injury and the degrees thereof. Some forms of bodily contact carry with them such a high risk of injury and such a distinct probability of serious harm as to be beyond what, in fact, the players commonly consent to, or what, in law, they are capable of consenting to. Such are the violent acts referred to earlier.
The conditions under which the game in question is played, the nature of the act which forms the subject matter of the charge, the extent of the force employed, the degree of risk of injury, and the probabilities of serious harm are, of course, all matters of fact to be determined with reference to the whole of the circumstances. In large part, they form the ingredients which ought to be looked to in determining whether in all of the circumstances the ambit of the consent at issue in any given case was exceeded.
Applying these principles to the facts that I have found, I cannot conclude that the Crown has met its burden to negate implied consent in this case.
As indicated at the outset of these reasons, this is a very difficult decision to arrive at. Because of the passage of time and the differing perspectives and biases of the witnesses before me, it becomes a particularly difficult judgment, but not as much when I apply the core and basic criminal law principles that should follow any reasoning processes in any criminal trial. What I can distil and I do accept is that there is credible evidence before me that amongst young men of this age group, who have a long history of training and experience playing contact hockey in rep or high school or both, that early in a season of transitioning to house league non-contact hockey, players can and sometimes do forget for an instant that they are playing in a non-contact league in the heat of the moment, sometimes their training and practice and instincts take over and when they are presented with an opportunity to execute a body check their instincts and "muscle memory" from years of training and practice take over.
In this case, I find that this is what happened with J.K. and that for a few short seconds he envisaged himself playing on a contact team that allowed hip checks and he executed one to the best of his formidable skill, unfortunately with tragic consequences for Carter O'Neill.
That assessment and acceptance of the evidence that supports that in many of the witnesses who testified to that in this trial drives my findings in this trial down an inevitable route, that being that the Crown has failed to prove the essential elements of this charge beyond a reasonable doubt and, therefore, that J.K. is to be found not guilty.
7.0 CONCLUSION
For the above reasons, there will be a finding of not guilty of the offence charged and of any included offences.
I wish to add in concluding that I truly feel that this case has been a tragedy, both for the defendant and for Carter O'Neill.
I wish to say that I have not overlooked the suffering that Mr. O'Neill has endured from this life-altering event, and that his family has endured.
Nor have I overlooked the uncertainty and stress that the defendant has endured. Both young men have endured uncertainty for many years, indeed for almost one quarter of their lives waiting for this decision.
I want to stress that my decision is to the best of my ability in accordance with the principles that I am sworn to uphold and apply in any criminal law case. The onus that the Crown bears in a criminal case is a higher and more exacting one than a plaintiff carries in a civil case.
Proof beyond a reasonable doubt is a higher standard than proof on a balance of probabilities.
My decision in this case is not determinative of what the outcome will be in another. My observations and assessment of the credibility and reliability of witnesses may not be the same as another trier or triers of fact. I can only make my assessments on the evidence before me during this trial.
That saddens me because it may mean several more years of uncertainty for these boys and their families.
Although my concern over the length of time this matter has been in the Ontario Court of Justice is real, it specifically played no part in my decision. Although I made similar comments that are placed at the beginning of this decision, they did not drive me to make any factual findings or apply the law in any other way than I would have absent those remarks.
I do recognize the difficulties that the passage of time plays in making memories more vague and that did make the fact-finding process more difficult, but we as judges must deal with the case that is before us.
It is an imperfect system.
I wish J.K. and Carter O'Neill and their families well.
All parents in this case no doubt are, and should be proud of their sons, for they are both fine young men.
Released: December 9, 2016
Signed: "Justice Stephen D. Brown"