DATE: December 13, 2021 Information No.: 2811-998-20-35039

ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN v. JESSE KING-NORRIS

Reasons for Sentence

BEFORE THE HONOURABLE JUSTICE P. BELLEFONTAINE via Zoom on December 13, 2021, at OSHAWA, Ontario

Appearances

Counsel for the Crown: D. Portolese Counsel for Jesse King-Norris: W. Markle

BELLEFONTAINE, J. (Orally):

In the matter of Jesse King-Norris, he was charged with assault causing bodily harm on Thomas Kroupis, which occurred during a Junior C hockey game. During the second period of the game on February 9th, 2020, Mr. Kroupis was involved in a scrum with another player, which was separated by the linesmen. Mr. Kroupis began skating around and "showboating" by clapping, pointing to the crowd and throwing his arms in the air. Mr. King-Norris, who was not involved in the previous scrum, skated up behind Mr. Kroupis and tapped him on the back of the legs with his stick and said, "Do you want to to go?" He then skated in front of Mr. Kroupis and grabbed his upper torso area. Mr. King-Norris dropped his gloves while grabbing Mr. Kroupis. The two then became involved in an altercation. Mr. King-Norris punched Mr. Kroupis once in the face, causing Mr. Kroupis to fall to the ice and cover his face with both hands, which were still gloved at that time. Mr. King-Norris continued to strike Mr. Kroupis repeatedly, and as a result of the initial punch Mr. Kroupis sustained a broken jaw. Mr. Kroupis's victim impact statement eloquently reiterates the excruciating physical and emotional pain that resulted from the assault. Even after the surgery on his jaw, he was in agonizing pain for six-and-a-half weeks while his jaw was wired tight. He lost 45 pounds and was depressed. He had a metal plate placed in his jaw, and may have permanent nerve damage to his face. He lost three weeks of work and wages as a result of the injury, and still has dental surgery to come.

Mr. King-Norris comes before the court as a first offender. He was aged 20 at the time of the assault. The character witnesses and supporting letters filed describe him as a model youth. He is respected both within the hockey community and the general community. He was very caring towards a younger handicapped sister, who passed away in 2019, and has been active doing community service in the community and mentoring younger hockey players. He is said to be an outstanding, kind and considerate friend, and has significant charismatic leadership qualities. I would note as well that he has overcome significant personal adversity with two of his younger stepbrothers having been killed in a car accident while travelling to one of Mr. King-Norris's games. Further in 2019 after his sister passed away, he received a major head injury in a car crash caused by a drunk driver, which left him wheelchair ridden. With much determination he was able to learn how to walk again, and return to hockey. I'm told he works in a family business with his brother, which is said to be in struggling financial circumstances due to the covid pandemic. He is working to become the sole proprietor of that business. His coach's testimony is that he is a talented hockey player and his popularity with teammates, leadership abilities and skill justified his being the captain of the Georgina Ice team. Due to the competitive nature of the league, a hockey record sheet referred to as Point Streak, statistics are kept of his playing times including his assists, scores and penalties. The record filed for his three years in Junior C show him to have only been involved in one previous fight incident resulting in a five-minute penalty, which his coach Steve Sedore described as resulting from him being jumped on by another player. I should note he has a number of penalties for slashing and inciting opponents to fight that have occurred over those three years. Both coaches describe his assault on the night as out of character for him. He is said to be a top-scoring star player and not an enforcer who gets involved in assaultive or aggressive behavior. Mr. King-Norris and Mr. Kroupis had previously been teammates and socialized as friends. Mr. Sedore testified that Mr. King-Norris was immediately remorseful when he heard of the extent of Mr. Kroupis's injuries. That remorse is obviously consistent with his plea of guilty that was entered on the trial date. When asked if he had anything he wished to say with respect to the matter, Mr. King-Norris again reiterated the remorse that he felt with respect to these injuries and stated that he feels remorse for every single day.

The Crown has proceeded by way of summary conviction. The otherwise 10-year maximum sentence for assault causing bodily harm is therefore reduced to two years less one day in jail. The position of the Crown is that a conditional jail sentence of six months to be served in the community followed by two years' probation should be imposed to meet the needs of denunciation and general deterrence and reflect the severity of the injuries inflicted on Mr. Kroupis and the gratuitous punches thrown after Mr. Kroupis was down on the ice and injured. The defence submits the mitigating factors in this case and the case law precedents support an absolute or conditional discharge.

Mitigating Factors

The mitigating factors articulated by the defence are:

1. Mr. Norris is a youthful first offender.
2. He is a youth of previous good character, who is well respected in the hockey and general community, and has actively benefitted the community by his mentoring of younger players.
3. The assault itself was out of character for him. In a game where fighting is commonplace, it is not his nature to do so.
4. The extent of the injury was unintentional and again where assaults are commonplace, the single first punch caused serious injury but at a level beyond which Mr. King-Norris may have intended. But for the injury, the assault would have been noncriminal and resulted in a short number of minutes of penalty.
5. The assault was in response to Mr. Kroupis being involved in a scuffle with Mr. King-Norris's teammate, and showboating about it. This is said to have breached the players unwritten rules that you do not make fun of beating another player, and making fun of or embarrassing players who are badly losing to you. As expressed by Mr. Sedore, as a captain you standup for your teammates.
6. The assault was not a sucker punch. Mr. Kroupis was approached from behind and tapped with a stick. Mr. King-Norris said, "do you want to go," and grabbed Mr. Kroupis's sweater before punching him. While this blow was precipitous, it cannot be said to have been unannounced.
7. Mr. King-Norris was immediately remorseful on hearing of the extent of the injuries he inflicted on Mr. Kroupis, a person who had been a friend of his. A remorse which I accept to be sincere.

Analysis and Decision

In considering this matter, I would note at outset that this is not a non-contact recreational league for which a very different approach would be applicable. See for example R. v. Tropea, 2007 OJ No 2122, where jail was considered appropriate even though no bodily harm had occurred upon a conviction for assault in a noncontact hockey league. Mr. Sedore, who is an experienced coach, testified that “hockey fights happen all the time”. “Hockey fights are the way the game is”, and “we are a hockey family, and that is the way it is”. “As a captain, you stick up for your teammates”. He agreed that the consensus is that Mr. King-Norris should not have been charged with the offence. Mr. Mark Watson is also an experienced coach at many levels of competitive junior hockey, including four years as a coach for the Oshawa Generals. While he acknowledges there are rules against fighting, the rules as written are often not enforced and in particular matches, it is agreed the referees will not enforce the no-fighting rules. As well, he testified there is an inter-player code of rules that if you cross certain known lines, you will be corrected by players on the other team. One of the rules he testifies to is one that you do not embarrass the losing side. He testified to that as part of his comments that Mr. King-Norris's Georgina Ice team was losing 12 to 2 at the time of Mr. Kroupis's showboating and the following assault. The character letter from Mr. Kevin Wain reenforces the perspective that this type of aggressive action is part of the game and the charges are unfounded. The testimony of the coaches about the common occurrence of fighting is supported by the Point Streak stats filed, which show a number of players on different teams receiving five-minute penalties for fighting. Second infractions by the same players in the same night, usually late into the third period, show a game suspension being imposed.

The Crown expresses the view that the Court needs to send a strong message that the laws of Canada override the players rules and the Court cannot condone and normalize criminality within the hockey culture. The difficulty with the Crown submission is that our appellate courts have indeed given wide latitude for the scope of implied consent when dealing with hockey violence. See for example R. v. Leclerc, (1991), 67 CCC (3d) 563, where our Court of Appeal noted the fact that the rules do not allow for bodily contact is not in itself determinative, especially where the ideal of noncontact is frequently breached. I have unchallenged evidence before me that an assault like the fighting that caused the bodily harm to Mr. Kroupis falls within the common conduct of this league. The criminality here flows from the fact that the intended harm unluckily resulted in much more grievous bodily harm than Mr. King-Norris may have contemplated. Considering the mitigating factors in this case, notwithstanding the severe injuries, I would not consider a jail sentence an appropriate disposition. As a conditional sentence as requested by the Crown is an alternative to a jail sentence and should not be imposed where a non-custodial sentence is appropriate, I am not prepared to give effect to the Crown's request for a conditional jail sentence to be served at Mr. King-Norris's home.

Mr. Markle has referred me to a number of cases where a conditional discharge under Section 730(1) of the Criminal Code was found to be in the best interest of the defendant and not contrary to the public interest. In R. v. Watson, (1975), 26 CCC (2d) 150, Justice Edmondson imposed an absolute discharge on a first offender in a case where the victim was significantly choked during a game with no long-lasting injury beyond that day. In R. v. McSorley, 2000 BCPC 117, Justice Kitchen granted a conditional discharge where McSorley had slashed at Donald Brashear with his stick causing considerable injury. Justice Kitchen relied on another slashing case, R. v. Neeld where a conditional discharge was also granted. In Neeld, the victim's nose was broken, and cuts required several stitches. In R. v. Bertuzzi, 2004 BCPC 472, Justice Weitzel accepted a joint submission for a conditional discharge. Bertuzzi had punched Steve Moore causing him to fall to the ice. He suffered fractured vertebrae from which he was recovering, but eight months after the assault, he was still suffering significant neurological damage that prevented him from continuing his hockey career. Mr. Markle also provided a newspaper report where Patrice Cormier and separately Jonathan Roy, received absolute discharges in 2010. Cormier had elbowed his victim in the head causing brain trauma and damage to the victim's teeth. Roy had plead to a single simple assault. I would note R. v. Ciccarelli, (1989), 54 CCC (3d) 121, where on appeal the trial judge's refusal to grant a discharge was upheld. Judge Harris had convicted Ciccarelli of assault for striking Luke Richards on the head three times with a stick causing no injury. He imposed a day in jail and a $1,000 fine. I would note the cases provided by the defence may be distinguished on the basis that no injury occurred in the case of some or in the case of the professional hockey players, that hundreds of thousands of dollars of income was lost flowing from their league-imposed suspensions.

It is clearly in Mr. King-Norris's best interest to avoid a conviction being registered for the offence, however, Mr. King-Norris even considering the mitigating factors in this case, I am not satisfied that it is in the public interest to grant a discharge. Extreme unforeseeable consequences should not overwhelm judicial decision making in a case like this and the penalty imposed should be proportionate to the gravity of the offence as opposed to being dictated by the extent of the injury, however, I consider the fractured jaw in this case to be a completely foreseeable outcome of a blow to the jaw and not to be an unforeseen or extreme injury out of context with the nature of the assault. The severity of the injury is a factor that can be properly used to evaluate the seriousness of the offence and the appropriate penalty as evidenced by the increasing penalties provided for the offences of assault, assault bodily harm and aggravated assault. As well, a court is obligated to consider evidence that the offence had a significant impact on the victim pursuant to the provisions of section 718 of the Criminal Code. The injuries here are serious, the assault was precipitous. Mr. King-Norris punched Mr. Kroupis before Kroupis could drop his gloves to defend himself. This offence is really more characteristic of a blatant assault than a fight, which can denote some degree of mutual interaction between the players. Further Mr. King-Norris continued to strike Mr. Kroupis repeatedly when he was defenseless and on the ground. While these blows may not have added to the injury, they reflect a level of anger, violence and callousness that requires denunciation. Additionally, I do not consider it to be in the public interest for the court to condone assaults that may reasonably be foreseen to cause bodily harm on the ice or off. The league has taken steps by virtue of its penalty and suspension provisions to deter fighting. I consider it in the public interest to reenforce those efforts. It is contrary to the public interest to permit serious or potentially devastating or fatal injuries to be inflicted on hockey players. I would reiterate the comments of Justice Kitchen, in the R. v. McSorley case, at paragraph 18 he stated,

Before I impose sentence, I have these comments. In 1979, Judge Shaw of this court dealt with the matter of several New Westminster Bruins having engaged in an attack on players of the opposing team. The beatings to the other players were cowardly and brutal. Incidentally, he also found discharges appropriate. After imposing sentence, he said this:

As a judge I am but a spectator at a hockey game. Yet we are all continuing spectators and participants in the serious game of life. I say to the owners, managers and coaches, to those who guide our youngsters from the midget level, through the intermediate levels and on into their teens, you're playing a dangerous game when advocating intimidation and violence above the basic sporting skills. You do these men, the game of hockey, and Canada itself a terrible disservice.

Accordingly, the request for a conditional discharge or discharge is denied.

Addendum

The Court ordered a suspended sentence and probation with community service as a sentence.

Certificate of Transcript

FORM 2

Evidence Act (Subsection 5(2))

I, Amy Thar, certify that this document is a true and accurate transcript of the recording of R. v. Jesse King-Norris, in the Ontario Court of Justice, held at OSHAWA, Ontario, on December 13, 2021, taken from Recording No. 2811_409_20211213_085711__6_BELLEFP.dcr, which has been certified in Form 1.

28-12-2021

Date AMY THAR Authorized Court Transcriptionist ACT ID#3138759370 amybthar@gmail.com