Thursday, November 17, 2011

Chara Cleared by Quebec Police; When Is A Hockey Hit A Crime

Boston Bruin Zdeno Chara will not be charged by police for his hit on Max Pacioretty that left the Montreal Canadiens forward with a broken neck and a concussion.

As I said back when this happened, while Chara was clearly reckless in his actions, he did not commit a crime. A suspension was warranted (didn't happen though), but prison wasn't.

The principle of consent is really important when we talk about whether a hit on the ice is elevated to a crime. 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). At law, this principle of consent is called voluntary assumption of risk.

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.

From the outset, this is a case that was doomed for the prosecution. If it pressed charges it is unlikely it would have succeeded. The hit was not typically what would be characterized as a crime (unlike head hunting for example). It would have been difficult to successfully argue that the hit clearly fell outside the scope of what is an acceptable hockey hit. It's close - but not close enough to warrant prison time and a record.

In an earlier blog, I covered cases where players were charged with assault for their on-ice incidents. In each case, we were dealing with contact that was completely and unequivocally an attempt to injure another player and the contact was not incidental to the game.

The Chara case is different. Frankly, it was a surprise that this case hung around as long as it did.

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