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  • Writer's pictureThe Moot Times UCalgary Law

Blood on the Ice: Criminal Prosecution in Canadian Professional Hockey

Contributed by: Kris Phillips

Hockey fans reeled on October 29, 2023, when an errant skate blade slashed the throat of former NHL-player Adam Johnson. The incident occurred during the second period of a British Elite League game when Johnson collided with the upturned leg of an off-balance opponent. Johnson passed away in hospital later that evening.

Upon release of the gruesome footage of the event, most fans characterized the fatal play as a freak accident. But this interpretation was not embraced by the South Yorkshire Police, who soon made an arrest in relation to Johnson’s death. The apprehended individual was held under suspicions of manslaughter before being released on bail. We have yet to learn if charges will be laid. 

For Canadian hockey fans, the ongoing situation across the pond brings a long-unsettled question to light. That is, when does the conduct of a professional hockey player warrant sanctions from the criminal law?

A Brief History of On-Ice Violence

It is not an exaggeration to say that hockey was marked with violence at its inception. On March 3, 1875, Montreal’s Victoria Arena hosted the world’s first indoor hockey match, now considered to be the birth of organized hockey. The 9-versus-9 contest ended with a score of 2-1 and was promptly followed by a bloody brawl between players and spectators. 

Of course, the violence inherent in hockey was not embraced by all. Canadian lawmakers had already banned bloodsports like bare knuckle boxing by 1870, labeling such pursuits as “disreputable and irrational diversions from honest labour.” 

Such public sentiments drove criminal charges for on-ice violence during the early 1900s at a rate that would be alarming today. At least 10 criminal charges were levied against professional hockey players in Canadian courts from 1905 to 1918. 

The criminalization of on-ice conduct was a barrier to growth for the fledgling NHL. As such, the league was compelled to mandate additional penalties, fines, and suspensions for violent on-ice conduct in 1922. Thus began an age of self-governance, during which the NHL was left to dole out its own justice for on-ice infractions. 

Then came the late 1960s, when teams began to achieve victory through sheer physical domination. The increased ferocity and frequency of on-ice violence raised the eyebrows of Crown prosecutors in 1969, when NHL Player Wayne Maki fractured an opponent’s skull in three places with a stick-swing to the temple. 

Maki was charged with assault by Ontario prosecutors. Though Maki was acquitted of the charge at trial, the NHL’s 47-year period of freedom from criminal sanctions had come to an end. Over the next ten years, nine more charges were laid against professional hockey players for on-ice conduct.

As in 1922, the NHL strengthened its self-governance protocols with the institution of several new rules between 1970-80. One notable change was the instigator rule applied in 1974, which placed additional penalties on the player who instigated a fight. The league also took measures to mitigate the severity of on-ice injuries with a mandatory helmet policy for incoming players beginning in 1980. 

These changes allowed the NHL to enjoy another 10 years of freedom from criminal prosecutions of players.

Hockey Violence and Criminal Law Post-Jobidon

For most of the 20th century, professional hockey players were afforded a degree of protection from criminal conviction through the defence of consent. It could generally be argued that a player’s participation in the sport was tacit consent to applications of physical force that would otherwise constitute assault. 

This changed in 1988 with the SCC ruling in R v Jobidon. The case centered around a parking lot brawl that caused the death of a participant. The Court refused to accept the accused’s defence that the deceased party had consented to the fight and the consequences that arose therefrom. Hence, consent would no longer serve as a valid defence for assault. 

3 months after the ruling in Jobidon, Ontario’s Crown Council brought charges against Dino Ciccarelli. Like Maki before him, Ciccarelli took exception to an opponent’s application of force and slashed the offending party in the side of the head. Ciccarelli was found guilty before an Ontario court and received a fine of $1,000. 

Once again, the conviction was followed by changes to the NHL rulebook. The standard for high-sticking infractions was lowered from shoulder-level to waist-level, while enhanced penalties were introduced for hits from behind.  

Status: Unresolved

An analysis of the history of professional hockey violence and Canadian criminal law reveals a pattern of public prosecutions followed by internal overhauls of NHL rules and enforcement protocols. At first glance, this arrangement seems workable. 

Unfortunately, the line between on-ice conduct that is permissible and that which is indictable remains ambiguous in Canadian criminal law. Without an objective benchmark for impugned conduct, the criminalization of on-ice violence is left to the discretion of prosecutors and judges. Such ambiguity should make NHL stakeholders and legal practitioners uneasy, as there is no telling what violent on-ice action may beget the next criminal charge against an NHL player. 

The NHL has enjoyed 20 years of unencumbered self-governance of on-ice conduct since the infamous prosecution of Todd Bertuzzi in 2004. However, history tells us that this period of stasis will not last indefinitely. For the moment, NHL players, owners, and fans would do well to follow the legal developments related to the professional hockey tragedy in the UK. 

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