[15] After the punch lands, Moore falls, with Bertuzzi falling on top of him. Very quickly thereafter members of both teams join on to what is really a dog pile. After the referees become involved and pull the others off, it is clear that Mr. Moore is lying in a prone position on his chest. There is blood on the ice, and he is in obvious severe discomfort and pain.
[16] With respect to whether or not the defendant intentionally rode Moore to the ice, that is not a conclusion that this court could draw, nor is it one which the Crown urges the court to draw.
[17] As is shown in the video, at the time Bertuzzi let go of the stick in his right hand, the stick fell to the ground. It appears that his left foot mounted that prone stick at the time he punched Moore. Bertuzzi's falling forward is equally consistent with him having lost his balance from having stepped on his own stick.
[18] Nonetheless, I am satisfied that the injuries to the head and to the neck, and indeed other injuries that may have occurred, are directly or indirectly related to the punch. Had he not made the punch, then they wouldn't have gone to the ice.
[19] So I am satisfied for the purpose of these sentencing proceedings it is appropriate to consider all of the injuries......
[36] There is a brief statement in one of the cases that has been referred to which really sets out the relationship of the courts to what goes on on the rink. It is an old decision. It is the case of R. v. Watson (1975), 26 C.C.C. (2d) 150. That was a case which involved an incident during a minor hockey game. There was a striking by one of them with a stick and then a fight and so on. The court there in considering the issue of provocation and all those sorts of things that come up whenever assault trials are heard, brings those principles down to the issue of a hockey game. I am quoting, about halfway through the case. The judge in that case states as follows:
Hockey is a fast, vigorous, competitive game involving much body contact. Were the kind of body contact that routinely occurs in a hockey game to occur outside the playing area or on the street, it would, in most cases, constitute an assault to which the sanctions of the criminal law would apply. Patently when one engages in a hockey game, one accepts that some assaults which would otherwise be criminal will occur and consents to such assaults. It is equally patent, however, that to engage in a game of hockey is not to enter a forum to which the criminal law does not extend. To hold otherwise would be to create the hockey arena a sanctuary for unbridled violence to which the law of Parliament and the Queen's justice could not apply. I know of no authority for such a proposition.
He goes on then to quote from the Maki case, which is one of the first cases involving an NHL hockey player, that:
No sports league, no matter how well organized or self-policed it may be, should thereby render the players in that league immune from criminal prosecution.
[37] So that is what is in play here.
[38] The confronting of Moore initially may have been within the bounds of the game. To then have the pursuit literally down the ice and then to grab by the sweater in order to get that player to engage in something which it is clear he did not wish to consent to, clearly went beyond the reasonable limits of the game and is an aggravating factor.
Still waiting for that info on the Naslund hit question...you know the other one you have been avoiding in this thread.
