He's shot down at trial, he scores on appeal: Opinion


Jason Gilbert  For the Ottawa Sun


First posted:

Gordon MacIsaac attempts to avoid a photographer after exiting the Elgin St. courthouse on Wednesday, August 13, 2014. MacIsaac was sentenced on an aggravated assault conviction arising from an on-ice hit during a hockey game. It wasn't a fight, or a stick-swing incident, but a hockey body check. Last month the Ontario Court of Appeal set aside his conviction. Mike Carroccetto/Postmedia file

Nothing stirs up more passion, debate and bickering in this country than hockey.

It's the one subject on which we all think we're experts, and our arguments over any game, play or penalty call can range from good-natured ribbing to violent, knock-down-drag-out, gloves-off fistfights.

Last month, the Ontario Court of Appeal set aside a 2013 Ottawa judgment involving an on-ice assault allegation.

The appeal court ruled that the trial judge mistakenly applied her own hockey sense to her analysis of the case.

The appellate court ordered a new trial for Gordon MacIsaac, who'd been convicted of aggravated assault after a hockey game collision that left opposing player Drew Casterton seriously injured.

The trial judge ruled that the collision, which occurred with less than a minute to go in the no-contact game, was an intentional blindside hit, delivered by MacIsaac in retaliation for an earlier incident in the game. She rejected MacIsaac's testimony that his collision with Casterton was an unavoidable accident.

But the appeal court found that the trial judge had relied on her own opinions about hockey in deciding how the game had been played in the moments leading up to the collision.

In setting aside the defendant's conviction, the Court of Appeal found that the trial judge improperly took "judicial notice of hockey strategy" in arriving at some of her conclusions.

Judges are allowed to take judicial notice of facts that are so generally accepted as to not be the subject of debate.

Evidence does not have to be presented in court to prove such indisputable facts.

The Supreme Court of Canada says that for a judge to take judicial notice of certain facts, they should be verifiable by reference to readily accessible sources of indisputable accuracy.

For example, a judge could take judicial notice of the fact that the Nazi Holocaust occurred, resulting in the deaths of approximately six million Jews.

The Supreme Court directs that judicial notice is to be applied strictly. This is to ensure that judicial decisions are based on the evidence presented in a case, and not on the judge's personal views and opinions.

If a judge is going to take judicial notice of a certain fact without hearing any evidence about it, that fact should not be open to debate or rebuttal.

As we know, hockey is far from something we all agree on. Everybody thinks they're the highest authority on the subject.

Canadian hockey fans, some of them among our most prominent citizens, take great pride in their knowledge of the game.

Stephen Harper wrote a book about it, Jay Baruchel wrote and starred in a movie about it and some might say Justin Bieber plays it better than he sings.

The Court of Appeal was troubled in the MacIsaac case by what it referred to as "impermissible speculative reasoning" by the trial judge in rejecting the defence evidence.

The appeal court found that "the trial judge appears to be taking judicial notice of hockey strategy and using that as a basis for rejecting the testimony."

The appellate court found that the judge had erroneously imposed her personal knowledge and understanding of hockey on the facts of the case.

Simply put, the Ontario Court of Appeal held that hockey strategy is not a proper subject for judicial notice.

The court noted that Canadians often disagree on what constitutes rational hockey strategy in a given situation. There is no source of indisputable accuracy by which to settle these disagreements.

Apparently, not even Coach's Corner.

Sorry, Ron and Don.

-- Jason Gilbert is a partner in the Ottawa criminal law firm Addelman Baum Gilbert. You can e-mail him at jason@abgottawa.com


To quote one of Ottawa's leading specialists in criminal law, trials by Justice Diane Lahie are all too frequently a "forgone conclusion of guilt" and a sentence at the highest end.


If you are facing a trial by this judge make sure you do not have one of the dump trucks in Ottawa who fail to stand up to Diane Lahaie and who ithout blinking, or showing any remorse, allow their clients to rot in jail or refuse to appeal a decision of this most notorious of judges in Ottawa who is well known to psychologically unsuitable to hold any position of trust.

If you need a dump truck, Ottawa has plenty of them.

If you have a story regarding Diane Lahaie send an email to Info@OttawaMensCentre.com or call (613) 797-3237

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