Court Information
Information No.: 12-25323
Ontario Court of Justice
Her Majesty the Queen v. Emily Muir
Before: The Honourable Justice M. Block
Date: Tuesday, February 18, 2014
Location: Oshawa, Ontario
Appearances
For the Crown: Mr. K. Polley
For Emily Muir: Mr. M. Jacula
Reasons for Judgment
Overview of the Case
[1] On the evening of October 5, 2012, Wind at My Back was playing Pluggersz in the Adult Safe Hockey League, a non-contact house league in Durham Region. Late in the third period, the defendant, Emily Muir, playing for Wind at My Back, was skating to the box to serve a minor penalty when she struck Dana Schofield, a player for the Pluggersz. Ms. Schofield fell awkwardly to the ice. She broke her left leg above the ankle in two places.
Issues Before the Court
[2] These are the issues before this court:
- Did Ms. Muir intentionally strike Ms. Schofield, and, if so, was it an act of self-defence?
- Did Ms. Schofield's participation in the game imply consent to the defendant's conduct?
- Did the blow to Ms. Schofield cause her the bodily harm suffered?
Legal Framework
[3] As always, the Crown is obliged to prove the guilt of the defendant beyond a reasonable doubt. If the evidence leaves me with a reasonable doubt that Ms. Muir apprehended imminent danger from Ms. Schofield and that her response was proportional, she must be acquitted.
If I find that the Crown has not proven beyond a reasonable doubt that Ms. Schofield did not give her implied consent to the use of force of Ms. Muir, I must also acquit. If I find that Ms. Muir's action was an assault, but I have a reasonable doubt that the bodily harm was caused by the blow, I must convict her of the included offence of assault only.
Approach to Evidence
[4] The determination of these issues requires analysis of the credibility, perception, and memory of the defence and Crown witnesses. I can accept some, none, or all of the evidence of a particular witness. In particular, I will not focus on testimonial minutia, or unimportant gaps or contradictions on minor issues, but concentrate on significant elements of a witness' account.
[5] I am not obliged to review the evidence of each witness individually. I shall refer to particular portions of the testimony, as needed, and make observations and traits common to the evidence of several witnesses, when appropriate.
[6] In the circumstances of this matter, it is important to consider whether the witnesses were in a position to see the incident, whether their memories of the incident accord with the accounts of other persons present and the video recording of events surrounding the injury, and whether their evidence is tainted by collusion, bias, or apparent interest.
Uncontroversial Evidence
[7] Some of the evidence is uncontroversial. The identity of the defendant as the person who struck Ms. Schofield is conceded. It is also conceded that Ms. Schofield suffered bodily harm in the manner she described. Wind at My Back was a better team than the Pluggersz and was leading four-to-one late in the third period.
[8] Ms. Schofield, while not the weakest member of her team, was not a highly experienced hockey player. She was not in peak condition as she had recently given birth. The evidence suggested that she was a full eight inches shorter than Ms. Muir.
[9] The defendant is an experienced, elite hockey player who has played at a Varsity level and is proficient in contact play. She was described by a referee witness as the best player in this league.
Crown Evidence
Dana Schofield (Complainant)
[10] Ms. Schofield was on the ice when she saw the defendant take the slap shot and then knock a player down on her follow through. A referee blew his whistle to indicate that a penalty was called. Ms. Schofield felt that the slap shot was inappropriate in a game with novice players, and thought that the hit on the other player, during the follow through, was unnecessary rough play.
[11] She told the court that she was skating towards her own net at the time of the slap shot and the hit, and called out her displeasure by yelling, "What the hell was that?", as Ms. Muir was moving towards the penalty box.
[12] She denied deliberately and aggressively following the defendant. She denied preparing to slash the defendant. She stated that she probably held the stick with two hands. She said that she was intending to skate to her own bench for a line change. She denied intentionally approaching the defendant. She denied swearing at the defendant, threatening, yelling, or calling her on to fight. She also denied intending to make any form of physical contact with the defendant.
[13] Ms. Schofield said that while skating to her bench in the manner described, she was blindsided by the defendant. She was unsure whether she was punched, or elbowed and thought that the contact was in the chest, or face area. She fell on being struck, broke her ankle in two places when she fell, and was concussed. She did not lose consciousness following the blow, but was in intense pain. She did not recall her skate being caught in a rut.
[14] Ms. Schofield acknowledged that incidental contact is a feature of play, even in this league. She also acknowledged that there was an unavoidable inherent risk in the sport. Ms. Schofield admitted a reputation for 'mouthiness'. She did not expect the blow from Ms. Muir. She militantly resisted the suggestion that the blow was the kind of action that could be expected in a league, particularly after the whistle calling play.
[15] I was asked to consider the fact that the complainant brought the criminal complaint only after the league imposed, which she felt was an insufficient sanction on Ms. Muir. I do not accept that this is an improper motive, or an oblique reason to initiate criminal charges.
[16] The court must use particular caution in assessing the accuracy of her account. She was concussed. The agony she unquestionably suffered does not lend itself to good memory, or careful perception. She appeared to be understandably angry and motivated when giving testimony, although it is not at all clear to me that she was intentionally shading her evidence.
[17] Her account of much of the action following the slap shot was corroborated by the aforementioned video recording taken from a camera placed behind the Pluggersz' net. Exhibit 3 is the video recording taken from that camera. The two seconds of Ms. Schofield's final approach behind the defendant across the right Pluggersz' face-off circle was off screen.
[18] Defence counsel reviewed with Ms. Schofield the portion of the video that recorded the action immediately after the blow. Ms. Schofield agreed with counsel that she:
"... didn't see Ms. Muir swinging right around with a full elbow that twists her body ...", after the blow.
[19] I could not detect in my review of Exhibit 3 any aggressive skating at the defendant, or change in the complainant's stick handling in the recorded portion of her approach to the defendant. In fact, the video shows the complainant's glide across the crease towards the boards, directly across the portion of the face-off circle, farthest away from the intersection with Ms. Muir. Far from showing that the complainant skated directly after the defendant, the video corroborates testimony that the complainant curved back towards her own bench in a path taking her behind Ms. Muir.
[20] Ms. Schofield's evidence is reliably contradicted in two areas. First, she told the court that she did not intentionally coast behind the defendant on the way to her bench. The evidence of other witnesses and the video recording suggest otherwise. She took an indirect route to her bench consistent with bringing her in proximity to the defendant.
[21] Second, she testified that she limited herself to the loud comment, "What the hell was that?", or words to that effect. The testimony of other witnesses, including the referee, Kevin Gray, indicate that the complainant continued to 'chirp' at the defendant when she glided behind her.
Gina Waduck (Crown Witness)
[22] Gina Waduck is a 34-year-old athletic administrator for the Durham Region School Board. She acknowledged that she was one of the better Pluggersz, with 30 years of prior hockey experience, including play at the Varsity level. Ms. Waduck stated that the Wind at My Back was by far the superior team. Half of the Pluggersz were beginners. She agreed that both teams became intense as the unequal match went into the third period.
[23] She was on the bench at the time of the incident. Ms. Waduck saw nothing in Ms. Schofield's behaviour which she felt merited the blow. She saw no aggressive action by Ms. Schofield. She stated that the complainant didn't use her stick to swing or slash at the defendant. She heard the complainant calling out about the incident to the defendant about the action that led to the penalty. She described Ms. Schofield gliding out after Ms. Muir as opposed to chasing her.
[24] She described Ms. Muir as dealing a forceful blow or shove with the back of her arm, just above her elbow, at the complainant's chest level. She described the injured woman dropping, "Like a sack of potatoes", with her legs collapsing first, and her head hitting the ice at the end of the fall.
[25] Ms. Waduck said Ms. Muir then skated towards the opposite side of the rink where both benches were located. She described members of the Pluggersz skating over to aid the injured woman. One player, Deb Michlits, was just in front of the Pluggersz' bench, with her back to Ms. Muir, when she was punched in the back of the head by the defendant. The accuracy of her account of this episode was confirmed by the video recording.
[26] She said that Ms. Michlits had said nothing to the defendant before being struck. Ms. Waduck agreed it was common knowledge that there was a risk of injury, but disagreed that there was any understanding that participation in league games implied consent to assault after play had concluded.
[27] In my assessment, Ms. Waduck was a perceptive and honest witness. She seemed to have no inclination to whitewash her own team. She confirmed that she told the investigating officer that Ms. Schofield was 'mouthing-off' in a 'screechy' voice to Ms. Muir prior to the blow.
[28] She agreed that she told the officer that Ms. Muir may have used her elbow to "... clear her space ...". She said that it was possible that the complainant was within slashing distance of the defendant, but wasn't going closer to her when struck. She agreed with counsel that the complainant was following the defendant. She thought that, "Emily could've felt threatened that someone was skating towards her, but she wasn't close enough to make contact". Of course, my analysis of the evidence is not bound by the speculation of this fair-minded witness.
Sheldon Ploughman (Referee)
[29] Sheldon Ploughman had considerable experience at many levels as a referee in the 13 years leading up to this game. He described the Wind as the far better of the two teams. As Ms. Muir was escorted to the penalty box after the roughing call, he saw Ms. Schofield 'curl' past her back, as opposed to skating at her in an aggressive manner. Ms. Schofield came within touching distance of Ms. Muir and said something to her. He couldn't hear what was said.
[30] He saw Ms. Muir turn and elbow the complainant to the head with the back of her elbow in one motion. Ms. Schofield went down in a twisting motion. She screamed immediately. He assessed the hit in the following language:
"This one was bad for the violence of it, if that's a word, and for the unprovoked defence. Like, the Pluggersz' player was completely defenceless. Like, there was no way that she had a chance to get away from it and get out of it. It was sudden, and it was quick, and it was, it was pretty vicious, actually ...".
[31] Under cross-examination, Mr. Ploughman reluctantly guessed that it was possible Ms. Schofield caught her skate in a rut. I took this evidence to be an indication of his fairness without further significance. Mr. Ploughman correctly advised that he couldn't assess whether Ms. Schofield's motion, as she fell, was consistent with the rut scenario, "I'm not a forensic guy that can tell you".
[32] There were no significant inconsistencies between the evidence of this referee witness and his prior statements. And there was no evidence that his account was coloured by ulterior considerations involving league management, or concern that he had negligently handled the episode as was suggested to him in cross-examination. He was a highly experienced and objective observer who observed the incident at close range while doing his job. Mr. Ploughman was not cross-examined on the issue of implied consent. He told the court that he found Ms. Muir's action to be completely unacceptable and recommended to the league that the defendant be thrown out.
Cory Stern (Timekeeper)
[33] Cory Stern was the timekeeper at the game. He frankly admitted his absolute disinterest in this game, in particular, and hockey, in general. He knew neither Ms. Muir nor Ms. Schofield. He switched his focus from his reading to the ice only when the penalty was called on Ms. Muir and his duties required that he record the details of the penalty.
[34] The passage of time since the incident did not help his recall. He allowed that he probably told facilities manager, Ian James, that Ms. Schofield made a sharp turn to go at Ms. Muir. Three months after the game he provided an investigating police officer with the obviously incorrect observation that there was a period-and-a-half left in the game at the time of the incident.
[35] Nevertheless, his evidence assists the court in determining the essential facts of the blow. He saw the complainant as skating in close to say something to the defendant. He assumed she was chastising the defendant. She was not yelling. She was not behaving aggressively. She made no slashing motions. The defendant hit her hard in the face with a 'very violent elbow'. She was able to swing around and hit her without much movement.
[36] Under cross-examination, he said that the defendant paused for a second, cocked her arm, and then swung back in a spinning motion. The complainant went down fast, and started wailing immediately. It was the worst act of violence he had seen in this league, a 'vicious elbow' in his contemporaneous written account. A ten-out-of-ten for violence in this league, the next worse being a four.
Deborah Michlits (Crown Witness)
[37] Deborah Michlits was a Pluggersz player on the bench at the time of the blow to Ms. Schofield. In her flawed description of the incident, Ms. Muir took several strides over to the complainant immediately before striking her. This was different from any other account, including those of disinterested persons better placed to observe. It suggests that her testimony of that part of the game is unreliable.
[38] She told the court that she left her bench after the injury to Ms. Schofield. She had just left her bench and had turned to the Wind bench to make a sarcastic comment when she was struck on the back of the head. She was knocked to the ice by the blow. Her mouth bled as a result. She didn't see Ms. Muir coming. She denied saying anything to the defendant before the blow.
[39] Her version of the blow was corroborated by Ms. Waduck and, as well, by Exhibit 3. The video recording indicates she was struck on the back of the head within one second after stepping on to the ice. She was standing motionless with her back to the defendant about one metre from the boards. Ms. Muir could've easily avoided the much less skilled, much older player with ease on her way off the ice.
[40] Ms. Michlits described two attempted punches by Ms. Muir once she got up and Ms. Muir entered the Wind bench. I could not see the punches on the video recording. I did see Ms. Michlits get up and approach the Wind bench, 2.6 seconds after falling to the ice. As she approached the boards, Wind players on the inside can be seen in a flurry of activity. The poor resolution of the recording makes it impossible to see what they are doing, but the motion seems consistent with rapid arm movement.
[41] 2.2 seconds after closely approaching the Wind bench, Ms. Michlits jumped sharply backwards. This video recording would tend to corroborate this portion of Ms. Michlits' evidence though not with the same power or certainty as her account of the initial blow to her by Ms. Muir.
Kevin Gray (Senior Referee)
[42] Kevin Gray was the more senior of the two referees that night. He is a retired GM worker in his fifties. It was clear that minor hockey is his life. He has officiated some 10,000 games at all levels of minor hockey, including Junior-A. He was the closest referee to the incident. He called the penalty on Ms. Muir.
[43] His testimony was candid. He called the penalty a 'cheap call' that he would not have imposed in more advanced play. He appeared to have high regard and professional respect for Ms. Muir. He described her as the best player in the league. Mr. Gray was about three feet away from the two players at the time of the blow. He described Ms. Schofield's conduct as 'chirping', the often annoying and frequently vulgar commentary that is the ever-present companion of spirited hockey.
[44] He was 90 percent sure she said, "Why did you push that other girl?". He was clearly critical of Ms. Schofield's conduct. He told the court that she shouldn't have put herself close to Ms. Muir, and that, "If that girl says nothing to Emily, we're not sitting here today". However, he resisted the suggestion that Ms. Schofield's conduct was aggressive or suggested violence.
[45] He told the court that Ms. Muir swung around with her hands on her stick and delivered a blow to the complainant's head. The blow by Ms. Muir was, "A pretty good shot. I haven't seen an elbow like that for awhile".
[46] Counsel suggested that there were meaningful lapses in this witness' recall of the event. I disagree. I am not disturbed by Mr. Gray's failure to recall his position on the rink when he called the penalty on Ms. Muir. He knew where he was when he saw the blow to Ms. Schofield. He was escorting Ms. Muir to the penalty box. The video recording confirmed that both referees were close to the two women at the time of the blow.
[47] In common with the timekeeper and the other referee he was an unbiased witness. The only party for whom he displayed any warmth was the defendant. He struck the court as a keen observer. His vast experience made him the ideal witness to assess the play and the action after the whistle. He recommended that the league expel Ms. Muir as her conduct was incompatible with play in recreational hockey.
Defence Evidence
Emily Muir (Defendant)
[48] Ms. Muir testified. She did not dispute striking the complainant with her elbow, or the back of her arm. She said she felt, but did not see her approach, and heard Ms. Schofield swear, scream and threaten for five seconds as she made her way across to the defendant's location. As she recalled it, the complainant yelled, "What the fuck was that? You're a fucking bitch", and, "You're done number seven".
[49] She told the court that she believed that she was going to be hit, slashed, cross-checked, or punched. She reacted by bracing herself for the impact and, "... turning to clear my space from her to get some distance, because I knew she was coming up close to me ...". In her evidence, she did so by turning or spinning with her arms out in front of her, holding her stick in a cross-checking position.
She denied moving her elbows up. She was not attempting to apply any force to the complainant. In her evidence, she made contact with Ms. Schofield with her forearm at neck level. She testified that she lifted both arms to shoulder height and turned to push off the defendant. In doing so, her forearm made contact with the head or neck of the shorter woman.
[50] No one else at the scene heard the alleged threat. Neither referee, nor the timekeeper, heard the alleged swearing or threatening, although they were close to the two women. Neither referee perceived Ms. Schofield's approach to be aggressive.
[51] I was properly urged by counsel to carefully and repeatedly examine the video record to discern the core of these events. I have done so, but I've come to different conclusions. The video camera recorded Ms. Schofield's hand gesture of dismay at the perceived rough play by the defendant after the whistle was blown.
[52] It is obvious that she didn't propel herself directly toward the defendant by deliberate strides. She glided slowly across the goal crease, towards the goal-side portion of the right Pluggersz' face-off circle. She then disappeared from the view of the video camera as she moved in the direction of the board.
[53] 2.4 seconds of the video recording elapsed between that point and her reappearance just behind the defendant near the part of the face-off circle closest to the blue line. This motion corroborates the evidence of Crown witnesses who describe her gliding in a curve past the back of the defendant, as opposed to the power skating directly toward her.
[54] The complainant's speed also belies the suggestion of aggression. Her speed as she curved across the 30-foot face-off circle in 2.4 seconds can be calculated at a leisurely maximum speed of 8.14 miles per hour. Ms. Muir's stance and motion at the time of the blow are visible, despite the very poor quality of the video.
[55] In my view, the video recording is inconsistent with the defendant's evidence. At eleven hours, 19 minutes, 49.5 seconds, she is just visible at the extreme right of the screen at the top of the right Pluggersz' face-off circle. The defendant's stick is angled approximately 18 inches down on her left. Her front is oriented towards the penalty box.
[56] At 49.9 seconds, more of the complainant comes into view behind the defendant. As she does, the defendant glides very slowly backward towards her. At 50.1 seconds, there is contact. The front of the complainant meets the right side of the back and shoulder of the defendant. The precise anatomical points of impact are indiscernible. More of the defendant is now visible on screen, indicating that at the moment of impact the defendant was still gliding slowly backwards in the direction of the complainant.
[57] At 50.3 seconds, the complainant hit the ice with her buttocks. Both of her feet are in the air. The orientation of the defendant's body was apparent in the point-six second before contact. Her left hand remained at waist level. Her blade remained close to the ice. Her lower body still faced the penalty box. Her upper body turned approximately 30 degrees to the right towards the defendant.
[58] The exact mechanism of the blow isn't apparent from the video recording. But it little matters whether the defendant hit Ms. Schofield while wheeling slightly to the side, as described by most witnesses, or whether her elbow went straight back. It is also not apparent from the video recording whether the blow fell on her face, or her chest, or somewhere in between. What is clear is that the defendant closed the distance to the complainant by gliding backward in her direction, turned her upper body slightly to the right, and then struck back making contact with her elbow, or the back of her right arm just above it.
[59] This action was remarkable for the graceful absence of wasted effort. After delivering the blow, Ms. Muir looked over at the complainant and then moved smoothly off in the direction of the penalty box. I reject the defendant's version that she turned to parry or motion off an attack by the complainant. The blow itself would not be an effective defence against being boarded, slashed, or cross-checked. It would not interfere with a stick aimed at the back, head, or legs. It would do nothing to stop the momentum of a human body moving against the defendant's back.
[60] Ms. Muir could've side stepped to avoid the alleged on-rushing threat, or turned to parry the opponent's stick with her own. The blow she employed would be effective only against the unwary. It was intended to deal with an annoyance, in my view, not repel an attack.
[61] Powerful evidence of Ms. Muir's combative state of mind came immediately after the injury to Ms. Schofield. Ms. Muir told the court that she extended her arm to push Ms. Michlits aside because she was obstructing her route to the bench. She said that Ms. Michlits looked straight at her, said, "Fuck you", and came right at her. She testified that she thought, "There's another one coming at me".
[62] She told Crown counsel that one player had attacked her from behind, and now one was attacking from the front. Her account is contradicted in every respect by the video recording and the evidence of both Ms. Michlits and Ms. Waduck. I unreservedly reject her version of this episode. The unprovoked blow to Ms. Michlits, as Ms. Muir left the ice, leaves no doubt that she was behaving like a hooligan at that time.
Defence Witnesses
[63] A number of Ms. Muir's fellow players were called in her defence. Andrea Rodrigues was on the far end of the Wind bench. She didn't hear anyone yell, scream, or threaten. She saw Ms. Schofield aggressively skate at Ms. Muir's back. She appeared intent to catch up to the defendant for the purpose of slashing, or cross-checking her. She said she saw Ms. Muir act in self-defence and shove Ms. Schofield in the chest without much force. Ms. Muir didn't put her entire body into the shove. The blow was a simple shove into the chest.
[64] She guessed that the complainant's skate had become caught in a rut. She told the court that as the defendant left the ice, a player, who we now know was Ms. Michlits, skated aggressively towards her and threw at least three punches to her head and left side. This witness told the court that Ms. Muir never hit her, or any other player.
[65] On cross-examination, she reluctantly admitted that her recollection of this episode was mistaken when presented with video evidence to the contrary. I cannot accept this witness' evidence. Her recollection of the incident involving Deb Michlits was entirely wrong, and she would not readily admit her error when confronted with the conclusive video evidence.
[66] In her testimony, she volunteered that the defendant acted in self-defence and had probably heard the complainant's skates carve an approach. This suggests that she'd either discussed the case with the defendant, or that she was speculating in her interest. Her evidence of the aggressive approach of Ms. Schofield is clearly belied by the video record.
[67] She also took it upon herself to review the statements of other witnesses in the disclosure package. She explained that as a result of her employment as a prosecutor for the Region of Durham, she felt that she was not susceptible to having her evidence tainted by this familiarity. As Crown counsel submitted, she was on a mission.
[68] Kristina Sundal was on the Wind bench at the time of the incident. She testified that the complainant aggressively approached the defendant in a directed skate, while yelling. She said that Ms. Muir raised her arms to shoulder height, shoved Ms. Schofield away with moderate force using her other upper arm, and that she did not notice the way the complainant fell.
[69] It was clear from her testimony that Ms. Sundal's teammates discussed the incident at some length in the dressing room afterward. She also said that the aggressive nature of the game had been discussed in the courthouse hall by some defence witnesses present to give evidence.
[70] Annette Thompson was playing forward for the Wind, and was on the ice at the time of the incident. She said Ms. Schofield charged the defendant with her arms up around face level. Her recollection was that the complainant carried no stick. She heard the complainant say, 'fuck', and 'bitch', as she approached. She stated that Ms. Schofield actually made contact with the defendant's back with her hands. After contact the defendant pushed the complainant using her right forearm. The arm she used was not holding a stick.
[71] Under cross-examination, Ms. Thompson confirmed that she and Ms. Sundal spoke about the evidence in the hall outside the courtroom. She also testified that the incident had been discussed among players in the dressing room and on another occasion within one week of its occurrence.
[72] Stephanie Hogg was on the Wind bench at the time of the incident. In a concentrated form her testimony reflected the frailties of her teammates' evidence. She told the court that she saw the complainant aggressively skate towards the defendant's back. She skated in a straight line fast enough to require a "... spray kind of stop". She raised her stick to shoulder height in order to slash at the back of Ms. Muir's legs. Her slash was cut short by Ms. Muir as she turned to push away the assailant.
[73] The witness suggested the amount of force used was no more than the turning motion itself. She did not hear the complainant yell, or scream anything on approach. In her evidence, Ms. Hogg tried to warn Ms. Muir of the on-rushing complainant by yelling, "Turn, turn", as loudly as possible. No other witness saw the attempted slash, or heard the warning. Ms. Hogg said that Ms. Schofield appeared to have caught her skate in a rut as she fell, although, under cross-examination, she admitted that this was a guess, not an observation.
[74] She testified that as Ms. Muir skated to her bench after this incident, a Pluggersz player again, who we now know to be Deb Michlits, came off her bench and skated towards the defendant. Ms. Muir responded by pushing this player away. Her evidence was that Ms. Michlits was not knocked down in the process.
[75] Under cross-examination, Ms. Hogg confirmed that there'd been a great deal of talk in the Wind dressing room after the game. Everyone present was giving their observations of what had taken place and was listening to those of others. Those present were trying to piece together what had happened this evening. Those present and participating included, at least, the witnesses: Thompson, Sundal, Rodrigues, and Ms. Muir herself.
[76] One of the suggestions shared at that time was that Ms. Schofield caught her skate in a rut. This conjecture was a feature of every player witness called by the defence in this trial. Every significant element of this witness' evidence is either contradicted by the video recording of the incident, or absent from the accounts of other witnesses. However, this witness does give us insight into factors undermining the evidence called on behalf of Ms. Muir.
[77] The last witness called by the defence was Leighann Genuis. She was on the ice for the Wind at the time of these events. She told the court that she could hear Ms. Schofield yelling at Ms. Muir, although she couldn't hear the words used, and that she kept on yelling at the defendant while lying on the ice. She testified that the complainant was very aggressive and skated angrily towards the defendant.
[78] When asked by counsel for a description of the angry skating, she described aggressive and abrupt leg, hand and whole body movements as the complainant "... came right up to Emily". She heard no one call out a warning to the defendant. She recalled no swinging or slashing movements.
[79] Ms. Genuis said that Ms. Muir used her right upper triceps to make contact with Ms. Schofield. She turned her upper body without using any additional force. On her evidence, the complainant's foot stayed in the ice without moving as she fell. As Ms. Muir was leaving the ice, Ms. Genuis said that another Pluggersz player came up behind her and was dealt with in the same way as Ms. Schofield had been.
[80] The witness confirmed that an intense post-game discussion took place in the Wind dressing room about these events. In my view, her evidence had the same unreliability as the other Wind player witnesses. It showed some taint of post-incident discussion, and it was, in all central aspects, contradicted by readily observed portions of the video.
Assessment of Defence Witnesses
[81] It would be facile in the extreme to dismiss the defendant's witnesses simply because they were teammates. But common sense and ordinary experience demand inquiry into whether their bond has compromised the reliability of their evidence. In respect to Ms. Waduck, I've already indicated why I consider her evidence to be reliable, though she was a teammate of the complainant.
[82] In this case, all of Ms. Muir's teammates have been compromised by intense discussion of the events amongst themselves at the time of the incident. One example would be the universal speculation amongst these witnesses that a rut in the ice was a factor in Ms. Schofield's injury, in the absence of any evidence that such a rut actually existed. Ms. Hogg's evidence suggests strongly that this idea was born in the dressing room discussion immediately after the incident.
[83] Another symptom of compromised objectivity would be the oft-repeated testimony that Ms. Michlits had skated aggressively at Ms. Muir after leaving the bench. A fiction absolutely contradicted by the video evidence. A number of these witnesses violated an explicit and extensive witness exclusion order by continuing to discuss this matter in the corridor during the trial.
[84] All of these factors, together with the aforementioned episode of Ms. Rodrigues' review of disclosure, suggests that a powerful team bond animated these witnesses to the detriment of their reliability of the evidence. I have already indicated that I reject the evidence of the defendant. For reasons that must be evident from my distillation of their testimony, I reject the evidence of her teammates as well. Nor does the evidence led by the defendant raise a reasonable doubt. I accept the evidence of Ms. Schofield and Ms. Michlits, with the reservations that I have expressed, and I accept the testimony of Ms. Waduck, Mr. Ploughman, Mr. Gray, and Mr. Stern.
Findings of Fact
[85] This is my determination of the events of that evening. Ms. Dana Schofield was upset because of a slap shot and the subsequent hit on her teammate by Ms. Muir. She yelled out, "What the hell was that?", or something similar. That hit resulted in a minor roughing penalty to the defendant.
[86] As Ms. Muir skated to the penalty box, as directed by the referee, Ms. Schofield coasted or skated at a moderate speed in an arc that began outside the left side of the Pluggersz' crease and continued through to the right face-off circle until she came in close proximity with Ms. Muir's back.
[87] She neither skated aggressively, nor prepared to slash Ms. Muir, but it is very likely that she continued to say things about the defendant's conduct. I do not accept that she uttered threats to the defendant. As Ms. Schofield came within a few feet of her, Ms. Muir glided backwards several feet to close the distance, turned slightly to her right, and struck the complainant a powerful blow, on or about the face with her elbow. Ms. Schofield fell heavily to the ice, breaking her left leg in two places.
[88] Shortly after felling Ms. Schofield, Ms. Muir knocked Ms. Michlits to the ice for no cause, except, perhaps, an appetite for more mayhem. There is no air of reality to the claim of self-defence by the defendant, and I unreservedly reject it.
Causation
[89] Counsel has raised the issue of causation. Speculation as to the existence of a rut in the ice was a common feature of the defence evidence and of the cross-examination of Crown witnesses. There is no evidence of the existence of such a rut.
[90] I reject the notion that there was any intervening act or event that would separate the blow by Ms. Muir and the fall it caused from the injury to Ms. Schofield. But for the blow by the defendant, the complainant would not have suffered the bodily harm.
Implied Consent Analysis
[91] The issue of implied consent requires the analysis contemplated in R v. Ciccarelli (1989) C.C.C. 3d 121, a decision of Justice Corbett, and R v. Maloney (1976) 28 C.C.C. 2d 323, the decision of Justice Le Sage, both decisions from the court now known as the Superior Court of Justice. All forms of hockey imply consent to foreseeable forms of contact inherent in the game. When evaluating issues of implied consent, the court must consider:
The nature of the game played, including the level of hockey, and any explicit restrictions to the degree of force permitted in play;
The nature of the particular act and the surrounding circumstances;
Degree of force used and the risk of injury;
The state of mind of the accused.
[92] I have applied this analysis in the following way:
(1) Nature of the Game
The culture of the league clearly imposes a restriction on the kind of bodily contact permitted in a more aggressive hockey environment. I have to assume it's called the 'Adult Safe Hockey League' for a reason. By banning body checking, the league has signalled to its participants that its play is suitable for a wide variety of ages, sizes, skill, and fitness levels.
(2) Nature of the Particular Act and Surrounding Circumstances
The act at issue was an efficient, vicious blow aimed at a much smaller, inferior and annoying opponent. It was delivered well after the whistle had blown, and was not an instinctive reflex reaction to events that occurred shortly before, during play. Even in a full contact league, no one could reasonably expect an elbow to the head as a result of comments made after a play has concluded. It is of interest that Ms. Genuis thought that the blow by the defendant merited a suspension, as it occurred after the whistle brought play to a stop. Both the referees and the timekeeper thought the blow completely unacceptable conduct.
(3) Degree of Force Used and Risk of Injury
A blow powerful enough to knock an unsuspecting opponent right over was likely to involve injury. The defendant was an elite experienced player, who accepted the risk of injury to her victim.
(4) State of Mind of the Accused
Two acts stand out as indications that the defendant was in a highly aggressive state of mind. She closed the distance to the complainant in order to deliver the blow; and, she knocked another unsuspecting opponent to the ice moments later without cause.
[93] Counsel for the defendant argues that the incidental contact inherent, both in the game of hockey itself, and the waiver signed by all players in the house league, indicates an implied consent by Ms. Schofield to the assault.
[94] The evidence is that the waiver has the boilerplate language characteristic in documents of this kind. The waiver seeks to protect the league from civil liability, however caused. It imposes on the prospective player the acknowledgement that the sport is inherently dangerous. I find that the purpose in this document is precisely that limitation on civil liability. It does not address consent to the kind of activity that generated this criminal case.
[95] Incidental contact would be properly defined as contact that was not an end in itself, but that occurred as a secondary feature of legitimate play. Under no circumstances could this thuggish act be considered an incidental consequence of the play that preceded it. It properly captured the attention of the officials present as a surprise, as well as for its power.
[96] I find beyond a reasonable doubt that no implied consent existed for the assault. I convict Ms. Muir of assault causing bodily harm. The other alleged offence of causing bodily harm is made out. I'll hear submissions on this, if necessary, but, in my view, the law in R v. Kienapple applies, and I would judicially stay that charge.
Certification
I, JOANNE HARDIE, certify that this document is a true and accurate transcript, produced to the best of my skills and ability, in the matter of R v. Emily Muir held on Tuesday, February 18, 2014 in the Ontario Court of Justice at 150 Bond Street East, Oshawa, Ontario. Produced from flash drive provided to me of duplicated .dcr file no. 2811-103-20140218-090204-D.SEATON which has not been re-certified in Form 1.
ELECTRONICALLY TRANSMITTED
Any changes or modifications made to this document, either in format or content after noted transmission time and date, were not made or authorized by the undersigned.
Joanne Hardie Certified Court Reporter President, Court Reporters' Association of Ontario
Transcript Processing Dates
- Date Transcript Materials Received: February 19, 2014
- Date Review Transcript Delivered by Email: February 24, 2014
- Date Review Process Completed: February 28, 2014
- Completed on an as soon as possible basis
- Date Transcript Completed: March 4, 2014
- Date Transcript Electronically Transmitted: March 7, 2014 at 6:45 AM