Marty Goes to Court

It was announced last week that Vancouver police have charged Marty McSorley with assault with a weapon for his part in the slashing incident in the dying seconds of a game between the Boston Bruins and Vancouver Canucks.  Donald Brashear suffered a concussion, which could have long-term effects on his career.

It's not the first time the hockey player has been charged with assault for conduct occurring during a game.  In my opinion, McSorley will be convicted. There are three elements to the charge of assault with a weapon: (1) intentionally applying force to a person (2) while using a weapon, (3) without that person's consent. The hockey stick in this case qualifies as a weapon.

There's no question that McSorley used a weapon to apply force to Brashear.  We've all seen the footage.  The image of the slash, Brashear falling to the ice, his head smashing down, the helmet falling off, his body sliding to a stop and his head slowly coming down to rest on the ice is ingrained in our minds and causes us to feel sick at heart.  The two questions are: did he intend the act and did Brashear consent to the act? Asking whether McSorley intended to hurt Brashear is asking the wrong question.  It also doesn't matter if he says that he intended to hit Brashear in the shoulder, not the head. The question is whether he intended to apply force to Brashear.  McSorley's own comments to the media is that he was trying to get Brashear's attention so that they could fight.  In other words, he was trying to strike Brashear with his stick.  Whether he intended to get his attention or cause him injury is irrelevant: the fact is that he meant to hit Brashear.

Once you intend to hit someone, you have to live with the consequences of your actions, however unintentional the consequences may be.

The real issue that will be decided in the courts is whether Brashear consented to the activity.  Taking part in a professional hockey game means that you will be checked, perhaps tripped, slashed and maybe get involved in fight.  Players know this and accept the risk. In other words, what might otherwise be criminal conduct (punching someone) is not criminal if you agree to do it.

However, the players do not consent to certain activity. The game has rules and penalties for certain conduct, meaning that it is unacceptable.  Even the toughest goon doesn't consent to a two handed slash in the temple.  No player will accept that getting slashed in the head is a risk they agree to take when they step on the ice.

The real question is what kind of sentence will be imposed, should the court find Mr. McSorley guilty.  This may generate even more controversy than the charge itself.  My guess is that the sentence will be "light".  If a conviction is obtained, the Crown has made its point: the hockey rink is not a sanctuary from the criminal law and, even in the heat of an emotional athletic contest, you must contemplate the consequences of your actions and follow the same rules as the people watching you behind the boards.