Ontario Court of Justice

Date: August 9, 2017 Court File No.: London 16-537

Between:

Her Majesty the Queen

— AND —

Jason Ashton

Before: Justice Wayne G. Rabley

Heard on: April 26th and July 25th, 2017

Reasons for Judgment released on: August 9, 2017

Counsel:

• Mr. J. Miller, for the Crown
• Mr. R. Braiden, for the defendant Jason Ashton

RABLEY J.:

[1] Hockey and Violence in Sport

Hockey. It is Canada's game. There are few things that will energize our country like a hockey game. Bobby Orr flying through the air after scoring the game winning goal, Paul Henderson vindicating us against the big red machine, Wayne Gretzky dropping the perfect pass to Mario Lemieux, Sidney Crosby scoring the golden goal. All of these memories and more bind us together as a nation. In many ways, the sport represents who we are as a people. Like the game, as Canadians we are proud that in order to succeed we require tenacity, strength, intelligence and teamwork. Unfortunately, the sport also represents some aspects of our society that we no longer embrace and violence is one of them.

THE BACKGROUND FACTS

[2] The Incident

In 2016, Jason Ashton was a goalie for a team called BluCon in a no body contact league. On February 14th, Ashton's team was playing against another called the Mortgage Teachers in what was described as a competitive game. Tensions were high. There was 8 minutes left in the game and the Mortgage Teachers were applying pressure.

[3] Contact in the Crease

Douglas Gardner was part of that pressure. At one point, he skated through the goalie's crease and made contact with Ashton. As an official, Michael Daltry was on the blue line and watching the action. In his opinion, the game had been played cleanly up until that point, but when Gardner came into contact with Ashton, the goalie fell down as a result of that infraction. Daltry immediately called a penalty.

[4] The Assault

The official continued to watch what then unfolded. He saw Ashton get up off of the ice, then swing his goalie stick like a baseball bat with two hands and hit Gardner in the face. The impact of the blow knocked Gardner to the ice where he remained unconscious while others intervened. Daltry observed that Ashton did not leave the ice easily and remained where he was. During that time, he was staring at Gardner.

[5] Game Suspension

The game was called and Ashton was assessed a game suspension for attempting to injure. When he later found out that the injuries were substantial, Daltry returned to the ice and then completed an incident report.

[6] Extent of Injuries

Gardner was seriously injured. His bottom lip was split open and the bottom row of his teeth was caved into his mouth. He had 5 stitches to the exterior and 12 stitches to the interior of his mouth. Also the bone in Gardner's mouth was fractured and he was required to wear a brace for his jaw. Photographs of the injury were filed as an exhibit. They reflect the severity of the injuries involved.

[7] Long-Term Effects

In addition to the injuries to his mouth, Gardner suffered a serious concussion that forced him to be off of work for approximately 5 months. He was treated at the Fowler-Kennedy Sport Medicine Clinic and the Parkwood Hospital. However, Mr. Gardner still continues to experience reoccurring migraines, soreness in his mouth and changes to his mental health. Obviously it will take some time for him to fully recover from this incident.

[8] Guilty Plea

Mr. Ashton pleaded guilty before me and a Pre-Sentence Report was ordered. I heard submissions and then reserved my judgment to today in order to consider the positions advocated by counsel.

POSITION OF THE PARTIES

[9] Defence Submissions

Counsel for Mr. Ashton has provided me with a casebook which contains a number of cases that deal with the sentencing of hockey players who have been charged criminally. As is typical of Mr. Braiden, he has thoughtfully provided the Court with cases which not only support his position but also which assist the Crown.

[10] Defence Options

As counsel for Mr. Ashton, he has outlined a number of options. He points to the fact that sentencing in this area is unique and that many high profile cases have resulted in Conditional Discharges. He concedes that the situation for Mr. Ashton may be different because this was a no body contact league and submits that a Suspended Sentence should also be considered by the Court. Finally, he recognizes that a jail sentence may be an appropriate option and argues that given the circumstances of this case, a Conditional Sentence would meet the ends of justice as an alternative. In my view, all 3 submissions are available to the Court and I appreciate counsel's candor in that regard.

[11] Crown Submissions

The Crown seeks a period of incarceration of 90 days. The Crown is not opposed to that sentence being served intermittently given the employment of Mr. Ashton and the desire of the Crown to have him continue to pay restitution. The Crown further submits that a Conditional Sentence would not meet the ends of justice as it would not appropriately deal with the denunciation and deterrence that are necessary in a case such as this.

BACKGROUND OF THE ACCUSED

[12] Personal and Family Background

Mr. Ashton is a 37 year old first offender. He was primarily raised by his father after his parents separated when he was quite young and has developed a number of positive relationships within his family. He has two daughters from a previous relationship and gets along well with their mother. He has a new partner and things appear to be going well. He is described as a family oriented man with an easy going personality.

[13] Education and Employment

Mr. Ashton graduated from high school and then completed a post-secondary certification course in Electrical Engineering. After working in a job that took him to the United States frequently, he decided to make a change and took up employment as a salesman for an electrical supply company. He is described as a man who has a good work ethic. He has no outstanding fines or debts.

[14] Character References

Letters of reference were filed on behalf of Mr. Ashton. He is described in positive terms as a good person and it is clear that this conduct was out of character for him.

[15] Remorse and Victim-Blaming

Mr. Ashton expressed remorse for what he did to Mr. Gardner, but it is clear that he still feels strongly that he too was victimized during the play. In the Pre-Sentence report, the author notes:

"The subject verbalized remorse for his actions; however, he stated the harm that resulted from his behavior was unintentional. He further stated he was provoked and angered when the victim knocked his feet from underneath him during an intense play. He described the action of the victim as one of the most heinous crimes in hockey. The subject continued to engage in victim-blaming statements and rationalized if the victim had been wearing a cage on his helmet his face would have been protected."

[16] Slew Footing and Misperception

Mr. Ashton was referring to the fact that he was 'slew footed' as it is known in the sport. What is most unfortunate is that even if that was the case, his response was completely inappropriate. Additionally, in this case, he was also wrong in his perception and Mr. Daltry confirmed that although there was contact in the crease, it was not of the kind that Mr. Ashton thought it was.

[17] History of Conduct

In my view, the history of the participant can be a consideration for the Court. In this case, there was nothing to suggest that this was atypical behavior of Mr. Ashton who played hockey on a regular basis. In fact, the opposite appears to be true and Mr. Ashton was described by those who have competed with him as level headed and sportsmanlike in his behavior.

[18] Restitution

Mr. Ashton delivered, through his counsel, $5,000 towards Mr. Gardner's losses. It is perhaps small compensation relative to the loss of income and other expenses that Mr. Gardner has sustained, but I am told that Mr. Ashton took a second job to raise this money and that in my view, shows good faith and a sense of accountability.

IMPACT ON THE VICTIM

[19] Victim Impact Statements

A number of Victim Impact Statements were provided to me by the Crown. They include statements from Mr. Gardner, his partner and the mother of his child to express her loss. These letters are articulate, well written and tell the story of those so sadly victimized by a senseless crime. Mr. Gardner's own words best summarize the tragedy from his perspective.

"I am currently still on work limitations, along with not being able to manage through simple daily tasks, such as brushing my teeth, struggling to look in the mirror and seeing the facial scars that I'm left with for the rest of my life, while eating and drinking fluids has made me very insecure in front of others, caused by the numbness and permanent damage to the bottom lip and extensive lower mouth damage prevents me from being able to passionately kiss my girlfriend of 2 years."

[20] Loss of Love for the Game

Mr. Gardner then goes on to explain that up until this event he loved hockey and was playing up to 4 times a week. He wonders now if he will ever play the game again.

THE LAW

[21] Discharges in Hockey Violence Cases

There is a significant body of law that suggests that a Discharge is an appropriate sentence for an assault committed in the heat of the moment during a hockey game. This is so even where significant injuries occur. The case against Todd Bertuzzi obviously comes to mind when discussing the possibility of a Discharge for an athlete who has seriously injured another. In the case of R. v. John Perry, Justice Daniel of the Alberta Provincial Court reviewed a number of cases where hockey players were granted a Discharge. The prevailing view appears to be that violence is part of the sport and when players go too far, they should be prosecuted, but the fact of that prosecution is in of itself a significant factor when determining what further sanctions should be imposed.

[22] The Bertuzzi Principle

This is best stated in the Bertuzzi case where Justice Weitzel said:

"I am satisfied that when the reports of the case are made public, and that other hockey players see the potential effects that they will be deterred by the process itself: by the laying of the charge, by the public notoriety attracted by the charge, by the incredible disruption of one's personal life who is the subject of the charge, and then by the significant financial consequences which already have flowed as a result of the charge. So the issue of individual deterrence has been met, and general deterrence can be addressed, where a discharge is to be granted.

The issue of denunciation is clear; again, addressed by the bringing of the charge."

[23] The Ball Case

Each case will, of course, turn on its own facts and circumstances and I find the recent case of my brother Justice Colvin in R. v. Todd Ball to be compelling. The sentencing of Ball took place on March 29th of this year. The facts are somewhat similar. In that case, the victim Ryan Cox was on a breakaway. Mr. Ball was the goalie and as Cox came towards the crease, Ball swung his goalie stick with two hands and hit him in the face. The victim suffered a concussion, a shattered nose and fractures on the orbital bone. He required extensive facial surgery to rebuild his nose and continued to suffer both physically and mentally even at the time of sentencing. Similar to the situation before me, Ball had no record and was described as "reliable, hard-working, respectful and dependable."

[24] Distinction Between Professional and Recreational Leagues

Justice Colvin reviewed a number of cases and concluded "that the tendency has been to be lenient in cases involving sporting events." He made what I believe to be an important distinction between competitive leagues like the National and American Hockey Leagues and those which are considered to be recreational or non-contact leagues.

[25] Importance of the Distinction

This is an important distinction and makes good sense. Professional athletes in the NHL or AHL are far different from those involved in recreational leagues. In my view, there are two distinct differences between the two.

[26] First Difference: Consent

The first difference is the consent involved. There is a lot of violence in sports like hockey and it is accepted because the athletes know going into each game that there will be violence and that they may be involved in a fight whether they like it or not. By playing the sport at this level, the athletes consent to 'some violence' because they know it is part of the game that they have contracted to play in.

[27] Consent in Recreational Leagues

The same cannot be said for non-contact or recreational leagues. In these leagues there is no consent to the violence that regularly forms part of the sport at the professional or semi-professional level. Therefore, athletes who might otherwise expect a degree of violence and prepare for it at the higher level will not do so at the recreational level. The distinction is important because there is a different understanding or level of consent when the players take the ice in the various leagues.

[28] Second Difference: Athlete Preparation

The second difference is the athletes themselves. Players in the NHL or AHL are many of the best in the world in their sport. They are elite athletes who for the most part are young, strong, well trained and prepared both physically and mentally for the violent aspect of the game. One need only watch the NHL playoffs and listen to the participants to understand the importance of attrition and the philosophy of physically punishing one's opponent.

[29] Recreational Athletes

Recreational leagues are often competitive and have many great athletes, but as much as they may dream of greater glory, their best days are often behind them and many are employed in jobs where the rigors of physical training and preparation are not involved.

[30] Different Sentencing Principles

There are real differences between the two types of play and the athletes involved in them. Therefore, when serious violence occurs in a recreational league, although a Court should consider a Discharge, when appropriate, these cases should not necessarily follow the principles established for those in professional and semi-professional leagues.

[31] The Ball Sentence

In the Ball case, Justice Colvin considered all of the circumstances and imposed a sentence of 30 days incarceration to be served intermittently. It was at the bottom end of what the Crown was recommending.

ANALYSIS

[32] Discharge Inappropriate

In my view, a Discharge is inappropriate in all of the circumstances of this case. It may be that this Judgment will impact a few others involved in the sport locally on a recreational basis. It may not. That is not for me to determine, but it is clear that this decision will not have the significance that cases like Bertuzzi or Cicarelli had when they were national news. Therefore, the impact of the laying of the charge as a deterrent is lessened and is not the same as it would be for those who are in the public spotlight each and every day.

[33] Balancing Sentencing Principles

In determining a fit sentence, the Court must balance a number of factors. Traditionally, the principle of rehabilitation should be considered paramount when dealing with a first offender. However, the principles enunciated in section 718 of the Criminal Code including denunciation and deterrence must also be given appropriate weight.

[34] Sanctioning Violent Behavior

Those involved in recreational sports leagues must appreciate that significant violent behavior will be sanctioned by the Courts and that this kind of conduct will not be condoned in our community.

[35] Custody Required

I am of the view that having balanced the aggravating and mitigating factors that a period of custody is required in this case. Mr. Ashton's criminal conduct was serious and the consequences to Mr. Gardner require the Court to denounce this conduct. The question then becomes what should the form of that custody be? Is it necessary for the protection of the public and the need to deter others that Mr. Ashton be sentenced to real jail?

[36] Conditional Sentence as Deterrent

It may be that many 'purists' of the game believe that 'what happens on the ice' should be dealt with by the respective sporting bodies. That may be true for most cases. However, I am satisfied that a Conditional Sentence will send a clear message to many that not only will cases involving serious violence on the ice lead to convictions, but they may also lead to a restriction of one's liberty by way of house arrest or jail. In my view, this will send a clear message to others warning them that the Courts will not condone this type of behavior.

[37] Sentence Imposed

The sentence for Mr. Ashton will be one of 90 days to be served conditionally in the community. Following that there will be a period of probation for 2 years. During that period of time, there will be a term that Mr. Ashton not be allowed to play hockey.

[38] Explanation of Sentence

I appreciate that for some this may be considered a harsh penalty and for others it may be considered lenient. Therefore, I will further explain my thinking so that all will know why I have decided to deal with Mr. Ashton's sentencing in this way.

[39] Punitive Effect of Conditional Sentence

Conditional Sentences are able to meet society's need to deter and denounce. The restriction of one's liberty is always a punishment. As part of my order, Mr. Ashton will have to continue to work and compensate Mr. Gardner for some of his losses. It must also be remembered that although Mr. Ashton will not serve his sentence in a real jail, he will be confined to his residence with a bracelet when not at work or at large with his supervisor's permission. For the first few weeks, he will probably not feel the impact of the sentence, but I rather suspect after that, he will realize that a sentence involving house arrest can be quite punitive and difficult. Additionally, if Mr. Ashton breaches the terms of the order, then jail will become a real option. I trust he is a man who will not be so foolish to think otherwise.

[40] Suitability for Conditional Sentence

Mr. Ashton is an appropriate candidate for a Conditional Sentence. His antecedents show that he is likely to comply with the terms of the Order and therefore he will not likely put the public at risk. The Crown has proceeded summarily and this is an offence where the sentence is less than two years. Mr. Ashton is an intelligent man and notwithstanding my earlier comments, I do take into account the circumstances of the offence, including the fact that it was during a hockey game where an unforeseen incident occurred that caused Mr. Ashton, in the heat of the moment, to act in a manner that was completely out of character.

[41] Terms of Order

Terms of the Orders are then discussed.

Cases Cited

• R. v. Bertuzzi (2004), 26 C.R. (6th) 1, [2004] B.C.J. No. 2692 (B.C. Prov. Crt.)
• R. v. Perezhogin, [2005] O.J. 3205 (Ont. C.J.)
• R. v. Perry, 2011 ABPC 221
• R. v. Ball, 2017 (Ont. C.J.)

Released: August 9, 2017

Signed: Justice Wayne G. Rabley