When Rough Play Becomes Assault

The use of criminal law to regulate the conduct of sport participants has a long history, within which Canada is noted as being unique in using criminal law as a means of governing player behaviour.

Indeed, Canadian case law has provided the basis for judicial reasoning in such cases across a number of jurisdictions. A recent case from Manitoba demonstrates that this judicial framework is still intact, and demonstrates the difficulty in determining the criminal bounds of on-field aggression.

Greg Adamiec was a 28-year-old competitive recreational soccer player. He was convicted of assault causing bodily harm during the course of a soccer game in Winnipeg. His conviction was overturned on appeal (R. v. Adamiec, 2013 MBQB 246).

The incident occurred in front of the goal area. A scramble ensued with the goalie diving towards the ball, grabbing it and Adamiec’s right leg. Adamiec kicked, fell to the ground and continued kicking. The referee called a yellow card foul for rough play. Mr. Justice Mainella, of the Manitoba Court of Queen’s Bench, described play as “grotty and combative”. In general, play was marred by unsportsmanlike conduct and rough play. Ultimately, the goalie received serious injuries that took some six months to heal.

The difficult issue underlying allegations of excessive use of force in sporting situations is that of consent. More broadly, the question can be framed around what might be agreed to as “acceptable conduct” during a contact sport. Both the trial and appeal judges asked whether Mr. Adamiec’s actions were a normal part of the game. Mr. Justice Mainella asked further whether the use of force was beyond the rules, norms and customs of the sport in question (i.e. the 'playing culture'), bearing in mind the circumstances of the particular game where the alleged assault occurred.

In R. v. Jobidon ([1991] 2 S.C.R. 714 at 766-67), the Supreme Court of Canada set the scene stating that consent to the application of force in a sporting event is different to such consent ‘on the street’:

the common law [that one cannot consent to the intentional application of force causing serious bodily harm] will not affect the validity or effectiveness of freely given consent to participate in rough sporting activities, so long as the intentional applications of force to which one consents are within the customary norms and rules of the game. Unlike fist fights, sporting activities and games usually have significant social value; they are worthwhile.

What is within the customary norms and rules of the game? From a series of Canadian cases, mainly involving hockey, a number of criteria have emerged as being relevant to a determination of consent, including:

  • Setting of game
  • Nature of the game – e.g., professional, competitive, involving body contact
  • Age of players
  • Conditions under which game played
  • Acts and circumstances – e.g., high sticking, striking head, blows after whistle
  • Extent of force employed
  • Nature of act – degree of risk of injury, probability of serious harm
  • State of mind – retaliation, intimidation

The main cases include R. v. Cey (1989), 48 C.C.C. (3d) 480, R. v Le Clerc (1991) 67 C.C.C. (3d) 563, and R. v. Ciccarrelli (1989), 54 C.C.C. (3d) 121. Other cases, including R. v. McSorley (2000) B.C.P.C. 0116 and R. v. CC (2009), 67 CR (6th) 183, have followed. In R. v. CC, for example, the trial judge concluded that ‘spear tackles’ in rugby (i.e., driving one’s shoulder into the opponent’s stomach, lifting him and propelling him backwards and head first into the ground) are not only outside the rules of rugby but are outside the accepted norms of playing rugby and not within the implied consent of those who play the game. In this case, the offence of manslaughter was made out.

On appeal in Adamiec, the Court referred to each of these criteria. In the particular circumstances, the Court found that “struggle for control of the ball is part of the essence of soccer, particularly close to the goal” and that Adamiec was “within his rights under the playing culture of soccer to pursue his scoring chance”. The Court found the Crown had not proven a lack of consent for the purposes of an assault under the Criminal Code, stating that,

…although the conduct of Adamiec was contrary to the rules of soccer, it was not beyond soccer’s playing culture, let alone gravely so, which is required for sporting misconduct to be a crime.

The approach and criteria used to determine consent in Adamiec reinforces the principles of past cases, providing both clarity and certainty, although it goes further than previous cases by suggesting that the conduct complained of must be “gravely” beyond the norms and culture of the sport - what this means is uncertain. That said, the bigger issue for athletes and coaches is to understand the evolving nature of the ‘norms and culture’ of any particular sport. Arguably, we are seeing those norms evolve within various sports, particularly in both hockey and football as regards the degree of acceptable physicality involved in those sports.

Note: This column appears in Lawyers Weekly February 14, 2014 edition.

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