Thursday, March 10, 2011

Pacioretty Comments Do Not Support Criminal Action

Max Pacioretty has spoken to Louis Jean from Sportnet. Here are his comments as tweeted by Jean: 
"I sincerely appreciate all of the support that I have received since my injury. I was disappointed that the NHL did not suspend Zdeno Chara. However, I have no desire for him to be prosecuted legally

I feel that the incident, as ugly as it was, was part of a hockey game. I understand that this is not my decision. 

I have respect and admiration for the authorities in Quebec. I simply wanted to make my opinion clear".
Legal Translation 1: First, Pacioretty has said he does not support criminal charges. That means he will resist cooperating with the authorities. That in turn means they will have serious difficulties making an already difficult case.

Legal Translation 2: Pacioretty says the hit was "part of a hockey game". This sounds like it was crafted by a lawyer. In order to establish assault causing bodily harm you need to show that Chara intentionally applied force and that Pacioretty did not consent to that force.

The principle of consent is really important here in the context of Pacioretty's comments. In hockey, when you step on the ice, you consent to some form of bodily contact and harm, and the risk of injury that flows from that. The type of harm you consent to is contact that is part of the game (i.e., incidental contact).

However, you do not consent to contact that is not part of the game. For example, head hunting would not be acceptable so it's not harm a player has consented to.

So contact that is part of the game is understood to be contact that players have consented to. Contact that is not part of the game (Bertuzzi hunting down Moore) is understood to be contact players do not consent to.

In this case, Pacioretty is saying that Chara's hit was part of the game and something he consented to. That means that Pacioretty is saying in his eyes it was not a crime.

As per my radio clip below, at the outset, this was a very difficult case for the prosecution. While Chara was clearly reckless (and deserved a suspension), it is difficult to successfully argue that his hit clearly falls outside the scope of what is an acceptable hockey hit. The stanchion did cause damage, and Chara could reasonably argue that he only checked Pacioretty and it was unfortunate that the stanchion was where it was. That means you look at the incident as two separate events: the hit and the stanchion.

This wasn't Bertuzzi on Moore or McSorley on Brashear or Ciccarelli on Richardson.

A suspension would have been appropriate. Prison - I don't think so.

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