Scott Radley: When is an on-ice penalty a crime? Lincoln slashing incident a ‘marked departure’ from hockey norm: police

When a 17-year-old goalie was charged this week with assault with a weapon because of a stick-swinging incident during a youth hockey tournament, the usual questions arose.

There are plenty of incidents in sports that would be considered assault if they happened on the sidewalk, but aren't counted as such on the field or the court or the ice. So why will this one end up in the courts and the others don't? Where's the line between a penalty - even a major penalty or a match penalty - and criminal offence?

Some may try to simplify it, but it's a really tough question.

Let's start with this case.

The officers investigated and it's their belief that they actions they saw were a marked departure from the norm of sport," says Const. Phil Gavin of the Niagara Regional Police Service.

Specific details of the incident are hard to come by. We know this incident happened during an under-18 game at a tournament in Lincoln back in December. At some point, police say, the goalie intentionally hit an opposing player in the head with his stick.

There is video of the moment. Shockingly, it seemingly hasn't gone public - it's 2022. Everything gets posted online doesn't it? But police have viewed it. Gavin hasn't seen it, but says he was told that the investigator was surprised by what he saw.

It took him back a little," he says.

The goalie was kicked out of the game and the tournament. The player who was struck went to hospital with injuries described as non-life-threatening.

Within days, a complaint was filed with police. The Ontario Minor Hockey Association declined to comment on the situation because of the police involvement and the fact that the accused was a minor, but said the goalie has been suspended indefinitely pending the result of the court case.

Which brings us to this week's announcement of the charges. And the question: Why did this case lead to a charge when some other incidents some might consider excessively violent - in the pros, youth hockey, men's leagues or elsewhere in other sports - haven't?

Jeffrey Manishen is a Hamilton criminal lawyer. A few years back when he was a prosecutor, he got a conviction against a local men's league goalie who slashed another player in the face. So it happens.

Even so, he says a violent act in a game isn't necessarily enough to warrant charges. That's because of implied consent. When you step on the ice, you accept that you are taking part in an activity that could lead to you being hit and possibly being injured. Which is what separates this from a similar situation off the ice.

Yes, sometimes players break the rules. The behaviour is generally still considered part of the game.

But you are going to have cases where the conduct is so egregious that you can't really say that it's even within what characterizes it as the rules of the game," Manishen says. It's outside the scope of the game, what could be reasonably anticipated."

Makes sense. Yet even within that definition, there seems to be a huge grey area about what gets the attention of the law and what doesn't.

We probably all remember Marty McSorley being charged (and convicted) for smashing Donald Brashear in the head in 2000 during an NHL game. Some will remember Dino Ciccarelli getting sentenced to a day in jail for hitting Luke Richardson over the head with a stick back in 1988. Go back to 1969 and there was a horrifying incident between Wayne Maki and Ted Green that led to a fractured skull and charges for both.

Around here, many will remember the sickening incident in which Hamilton Bulldog forward Alexander Perezhogin swung his stick like a baseball bat into the face of Garrett Stafford in a 2004 AHL playoff game. He pleaded guilty to assault causing bodily harm and received a year's probation and a fine.

But numerous other vicious stick-swinging incidents - just go on YouTube and type stick swinging hockey" - have led to league-imposed penalties but didn't see the police step in.

Why? What's the difference? Is there an answer?

The video surely helps. A complainant is big part of it. Gavin says the fact that there was an injury of some kind was likely a consideration. Beyond that?

It's not every offence that gets prosecuted," Manishen says. But that doesn't mean the ones that didn't get prosecuted, couldn't have gotten prosecuted."

Scott Radley is a Hamilton-based columnist at The Spectator. Reach him via email: sradley@thespec.com