Don Cherry's Code vs the Criminal Code

Earlier this month, during a hockey game at the Bell Centre, Zdeno Chara of the Boston Bruins checked Max Pacioretty of the Montreal Canadiens into a stanchion.  Pacioretty dropped to the ice and lay motionless for some time before being removed on a stretcher.  He was later diagnosed with a severe concussion and a fractured cervical vertebra.  Chara was given a five-minute major penalty and a game misconduct but received no further discipline from the National Hockey League (NHL). Reaction to the play from various hockey fans, politicians, and corporate sponsors was furious and culminated in an announcement by Montreal police that Chara was the subject of a criminal investigation.  

At various times in the league’s history, players have been charged under the Criminal Code for on-ice conduct.  Curiously, some of those charged and ultimately convicted have been among the game’s elite including Hall of Famers Sprague Cleghorn and Dino Ciccarelli.  Indeed, Chara himself is a former Norris Trophy winner and five-time All Star.

Of course, hockey is a physical and often violent sport where bodychecking is praised and fist-fighting lightly penalized. One can sympathize with players who must navigate a line between strong physical play and criminal conduct.  A key question emerges: what is a player allowed to do on the ice without running afoul of the Criminal Code? This issue was addressed in a paper written in 2005 by a Vancouver lawyer named Angela Baxter.  She surveyed court decisions from a number of criminal trials involving professional hockey players and attempted to synthesize “a framework within which players can … monitor or guide their own conduct”.  

Baxter cited the relevant Criminal Code definition of “assault” as follows: “a person commits an assault when … without the consent of another person, he applies force intentionally to that other person, directly or indirectly…”.  (This definition is incorporated into other offences such as assault with a weapon or assault causing bodily harm.) It is recognized that in order to secure a conviction for assault, the Crown must prove the absence of consent by the victim. However, the Supreme Court of Canada has held that there is a limit to how much force a person may consent to: “…the limits of implied consent are reached when adults intentionally apply force that causes serious hurt or non-trivial harm to each other”.  

In the specific context of the NHL, Baxter described various levels of implied consent.  For example, it can safely be assumed that players consent to whatever forms of contact are allowed by the NHL’s official rule book.  However, contact that is forbidden by the rule book (such as slashing, boarding, or spearing) may also be consented to by players.  This follows from the testimony of players and referees at various trials indicating that there is an “unwritten code of conduct” accepted by players such that they impliedly consent to certain contact that is not permitted by the rule book.  For example, a slash to the shin pads is accepted by players whereas a high stick around the head area may not be.

Baxter summarizes the line between physical play and criminal conduct by focusing on consent: “… conduct should be considered as consented to or capable of being consented to as long as it does not pose the risk of serious bodily harm to the victim of the contact”.  She concludes that if players were made aware of this “dividing line between criminally acceptable and unacceptable conduct on the ice”, with offenders freely prosecuted, then there would ultimately be fewer instances of unlawful violence on the ice and, as a result, few prosecutions.