Ontario appeal court refutes judge’s hockey insights in assault case


The Globe and Mail


It was the most Canadian of legal cases: a recreational hockey player charged with aggravated assault over an alleged bodycheck in a no-contact league. The players on each team giving biased views of what occurred in support of their teammate. And a trial judge who used her knowledge of hockey strategy to determine that what happened was not an accidental collision.

But in a country in which hockey knowledge is presumed to be widespread, judges have no right to use their personal sense of the game to determine the facts of a case, Ontario’s top court said this week in overturning a conviction in the case and ordering a new trial.

“From the sports pages to social media, it is abundantly clear that reasonable Canadians often disagree about what constitutes a rational hockey strategy in a given situation,” Ontario Court of Appeal Justice William Hourigan wrote, joined by two other judges. “Nor is there any source of indisputable accuracy by which to settle these disagreements.” Judges who use their hockey knowledge are merely “speculating,” Justice Hourigan said.

The accusation against Gordon MacIsaac, a 31-year-old PhD engineering student who was playing in a senior men’s league in Ottawa at the time of the 2012 incident, was extremely rare, if not unprecedented. It involved not a fight, but an allegation of an illegal check known as a “blindside hit” because the opponent cannot see it coming. The National Hockey League banned such hits in 2010. Mr. MacIsaac was sentenced to 18 months probation.

The charges were laid at a time of intense public interest in concussions in hockey. The other player, Drew Casterton, suffered a serious concussion with debilitating headaches, lost two front teeth and had lacerations to his face.

Mr. MacIsaac’s lawyer at his appeal, Frank Addario of Toronto, argued the hit was accidental, and that players should be deemed to consent to hockey’s dangers unless someone attempts to cause serious bodily harm and such an injury actually occurs.

But the appeal court did not decide the tricky question of whether a bodycheck could be a criminal act. Instead, it said the judge had improperly speculated on the facts.

Justice Diane Lahaie of the Ontario Court of Justice doubted that one of the witnesses from Mr. MacIsaac’s team had been on the ice, because that would have meant three defenceman playing in the last minute of a game that the team was losing by two goals. But Justice Hourigan said there was evidence that teams put on their best players, regardless of position, late in a game.

Justice Lahaie also did not believe Mr. MacIsaac’s claim he was trying to steal the puck from near the other team’s net and score, because he was a defenceman and should not have been so far up the ice. Justice Hourigan disputed that understanding of hockey strategy, saying that with the team losing in the last minute, it was natural to take a risk.

And Justice Lahaie also said that if Mr. MacIsaac was right that Mr. Casterton had the puck when they collided, then Mr. Casterton would have had his head up. But Justice Hourigan said that, because the league banned bodychecking, players sometimes carried the puck with their head down.

“Just as in a hockey game, litigants and judges are confined by the rules – acting only on evidence,” Mr. Addario said in an interview.

But judges do use their knowledge of life to determine facts.

“Life and common sense are one thing, but how people would behave during a structured exercise like a hockey game is another thing,” Mr. Addario said. He added that, on a scale of Canadianness from one to 10, the case was an 11.

A spokesman for the Ontario Attorney-General said it would be inappropriate to comment yet on whether it will seek a new trial.

Mr. Casterton, a kinesiologist specializing in the care and prevention of injuries, said in an interview that he suffers post-concussion syndrome, with migraines lasting well over two years. He did not wish to comment further without speaking to his lawyer and family.

Lawyer Patrick McCann of Ottawa, who represented Mr. MacIsaac at his trial, said in an interview on Tuesday that in his research, he did not come across a single case of an assault charge laid over a bodycheck.