Hockey coach sentenced to 2 years for multiple sexual assaults to minors

In a case whose perpetrator’s actions span three decades and has attracted a considerable amount of attention, former hockey coach Graham James was sentenced three days ago to two years in prison for sexual assault. James plead guilty to sexually assaulting two teenage boys hundreds of times while they were players on teams he coached.

James is a former Western Hockey League Coach of the Year and 1989 Hockey News Man of the Year. James had been previously convicted of a sexual assault in 1971 and was also sentenced to three-and-a-half years in 1997 for sexually assaulting two other boys, including former National Hockey League (NHL) player Sheldon Kennedy.

The sentencing for his most recent conviction has properly generated wide-spread criticism.

Provincial Court Judge Catherine Carlson accounted for the abuse of trust, the degrading and humiliating nature of the sexual assaults – repeated hundreds of times to victims under the age of 18 – and whose cumulative effect has been significant and devastating to victims Todd Holt and Theoren Fleury.

However, Carlson J. also pointed out that Mr. James expressed remorse, apologized to his victims and has experienced what she called ‘an extreme degree of humiliation’ – factors that warranted a reduction in his sentence from a possible maximum of 10 years to the two year sentence handed down.

A Globe and Mail editorial (click here to read) entitled ‘Judge didn’t grasp magnitude of James’s crimes’ accurately, in my view, captures the criticism: ‘There is something annihilationist about what he did. It was an obliterating violence he committed on their sense of personhood, repeated over and over and over and over. These crimes need a sentencing approach that recognizes the difference between one or two sexual assaults and the hundreds that Mr. Holt and Mr. Fleury endured. Not a single one of those assaults should receive a sentencing discount …. [H]is behaviour needs to be denounced to express society’s revulsion and pain at the victimization of the vulnerable, and at the abuse of trust. Provincial Court Judge Catherine Carlson spoke of that abuse, of degradation, of the total control exercised by Mr. James, but then gave him credit for an expression of remorse, an apology, the “extreme degree of humiliation” he experienced and his willingness to come back from Mexico without an extradition hearing. He deserved no such credit.’

A two year prison sentence for savage predation upon two vulnerable and trusting human beings is not enough.

Battle of the Beers

Sports Litigation Alert (Volume 8, Issue 19) just published a short piece I wrote entitled, ‘Battle of the Beers.’ It is reproduced below:

—–

In a country where ice hockey and cold beer go hand in glove, two of Canada’s biggest breweries have been battling it out over sponsorship rights as the official beer of the National Hockey League. On 3 June 2011, Newbould J. of the Ontario Superior Court of Justice held that the NHL and Labatt Brewing Company Limited reached a binding sponsorship agreement on 12 November 2010 which would have run from July 1, 2011 — June 30, 2014. As such, the NHL was consequently not free to enter into a similar but superior agreement with Molson Coors Canada Inc. on 8 February 2011. The NHL and Molson appealed and the court held in their favor on 12 July 2011.

In a ruling which has left Labatts all wet (and sudsy), the Court of Appeal for Ontario found that Newbould J. erred by making his finding in a manner not anchored to the pleadings, evidence, positions or submissions of any of the parties to the case. It was accordingly “procedurally unfair, or contrary to natural justice” for this conclusion to be reached [5]. Citing Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74 (C.A.), the court held that a theory of liability which emerges for the first time in the reasons for judgment is never tested in the crucible of the adversarial process and thus raises concerns about the reliability of that theory [6].

It is noteworthy that Labatt did not plead that the parties had reached a binding sponsorship agreement on 12 November 2010 [12]. Labatt did not assert during the application hearing that a binding sponsorship agreement existed between the parties and expressly disavowed that it had reached a binding sponsorship agreement with the NHL [13]. The appeals court accepted the NHL’s submission that if it had known that the existence of a binding sponsorship agreement between the NHL and Labatt was at issue, it would have conducted its defence to Labatt’s application in a very different fashion [15].

While hockey is a small fish in the big frozen pond of professional sport relative to their much larger counterparts in football, baseball and basketball, there is still significant money to be made (and lost). Kyle Norrington, marketing director of Budweiser and regional brands for Labatt in Canada, commented in an affidavit filed with the Ontario Superior Court of Justice on the relationship of hockey and beer: “The NHL and the access it provides to Labatt … is the single greatest opportunity to grow Labatt’s share in Canada. The nexus of sports / heritage / emotional / tradition in hockey has no other Canadian comparable.” In contrast to the $37.2 million over three years agreement that Labatt was pursuing, the Molson deal is worth a reported $375 million over seven years.

It is the combination of the trial judge’s analysis of the renewal option in the 2002 Labatt/NHL agreement and his conclusion that a binding agreement was reached at the 12 November 2010 meeting that created the procedural unfairness problem [18]. Quoting Cronk J.A. in Grass (Litigation Guardian of) v. Women’s College Hospital (2005), 75 O.R. (3d) 85 (C.A.), leave to appeal refused, [2005] S.C.C.A. No. 310, the appeals court held that, “at the end of the day, the issues between the parties are defined by and confined to those pleaded” [53]. Since this did not happen, the NHL and Molson were denied procedural fairness and the judgment of Newbould J. was set aside.

Revenge is a beverage best served cold. Earlier this year, Coors Light lost the bragging and sponsorship rights as the official beer of the National Football League to Anheuser-Busch for $1.2 billion over six years. The $375 million Molson Coors/NHL deal reportedly includes approximately $100 million for the rights, $100 million in guaranteed advertising buys and $100 million in activation costs for staging special promotions to capitalize on its rights.

On 6 October 2011, Labatt disclosed that it had received confirmation that the Ontario Superior Court of Justice had dismissed its suit against the NHL and Molson Coors thus ending this round of the battle of the beers. The court plans to release the reasons behind its decision at a later date and Labatt said it would review its legal options at that time.

Hockey violence is getting out of control

You know hockey violence is getting out of control when noted commentator and former National Hockey League pugilist Mike Milbury – who once infamously warned against the ‘pansification’ of hockey – says a player should be banned from the league.

Milbury is calling for New York Islander Trevor Gillis to be kicked out of the NHL. Gillis served a nine game suspension for charging and concussing Pittsburgh Penguins forward Eric Tangradi with a high elbow to the head before landing several punches in a one-sided fight. Four shifts into his first game back from the suspension, Gillis head-hunted Minnesota Wild player Cal Clutterbuck with a hit from behind. NHL disciplinarian Colin Campbell described Gillies’s hit as a deliberate attempt to injure by delivering a blow to the head of an unsuspecting player who was unable to defend himself. Then he gave Gillis a feeble 10 game suspension.

On a related note, the Edmonton Journal just published an article I wrote entitled, ‘Violence on the ice is getting out of control’ about a Canadian university hockey player being attacked by a ‘repeat offender’ who had already been suspended in two different leagues for injuring opposing players. Here are a few excerpts:

… …

Hockey got yet another black eye last week when University of Alberta Golden Bears hockey player Eric Hunter was attacked by University of British Columbia Thunderbird Mike Liambas …. In an incident eerily similar to Vancouver Canuck Todd Bertuzzi’s assault on Steve Moore of the Colorado Avalanche, Hunter suffered facial cuts and a concussion after being punched in the head from the side and behind and then driven into the ice by Liambas.

… …

Hockey is a violent game but the violence is getting out of control. Too many players are getting hurt. Players – including Bertuzzi have been convicted of assault. Civil lawsuits – including Steve Moore’s ongoing $38-million suit against Bertuzzi and the Canucks – are no longer out of the ordinary.

It is time gratuitous violence in hockey was no longer considered normal and that teams did more to self-regulate and leagues did more than impose slap-on-the-wrist penalties.

Hunter is a young man studying business at the U of A who accepted the risks ordinarily inherent to playing hockey, such as being tripped, cross-checked and fighting. He would not, however, have consented to enduring a blindside hit and being driven into the ice.

Canadian university hockey should not suffer if the league doesn’t have the moral courage to do the right thing. Universities should send a message that thuggery will never be tolerated by kicking players off their teams if and when it occurs …  Liambas should be prohibited from playing in the league.

Taking hockey violence seriously

 

It is sad when gratuitous violence in hockey has become so frequent and normalized that it is no longer especially newsworthy. Columnists like Roy MacGregor of The Globe and Mail for example pen excellent articles entitled, ‘Enough talk about hockey violence – time for action’ but such pleas get drowned out by background noise and fall on deaf ears.

Since January 1, a 17 year old hockey player has been charged with aggravated assault in Edmonton after he speared an opponent with his stick after a stoppage in play, and two major junior hockey players (Marco Scandella and Patrice Cormier) have been suspended for the remainder of the season in separate incidents involving headshots.

Cormier’s hit to an unsuspecting Mikael Tam resulted in Tam becoming unconscious and convulsing on the ice. It can be viewed at http://www.youtube.com/watch?v=QgwCaxEB6-Y&feature=related

Politicians wring their hands of it. Canadian Finance Minister Jim Flaherty, himself a former hockey player at Princeton University, properly figures the National Hockey League should lead by example. Opposition Liberal MP Ken Dryden, a Hall of Fame NHL goalie and a lawyer like Mr. Flaherty, suggests leagues should impose a strict liability standard on headshots leaving it to the offending player to disprove the intent to injure and that lawsuits could spur future changes. Mr. Flaherty and Mr. Dryden dissociate the government and their parties from their views noting that they were speaking as individuals and nothing more.

Not to be outdone, New Democratic Party MP Glenn Thibeault wants a royal commission on violence in sports.

http://www.theglobeandmail.com/sports/hockey/taking-action-on-hockey-headshots/article1445350/

Meanwhile, the best hockey’s governing body can do is to have a summit meeting to talk about it some more. Hockey Canada president Bob Nicholson is saying all the right things to encourage minor hockey to get its house in order otherwise unspecified measures may be implemented to regain control of the game.

None of this is new. Hockey is a violent game but the violence is getting out of control. Hockey players have been killed. Too many are getting hurt. Eight of the ten longest suspensions levied by the NHL have been in the 21st century. Players have been criminally convicted of assault. Civil lawsuits are not out of the ordinary.

It is time that gratuitous violence in hockey not be considered normal and that professional and amateur leagues stop talking and start doing something serious about it.

This is hockey?

http://en.khl.ru/news/2010/1/9/23770.html

Professional hockey got another black eye when a Kontinental Hockey League (KHL) game in Chekhov, Russia was cancelled following an ugly bench clearing brawl. The referees assessed a record 691 penalty minutes to players from both sides. As neither club had enough players to ice a team, the officials were forced to cancel the game only 3:39 into the first period. The league fined Vityaz four million rubles (£83,363) and Avangard 1 million rubles (£20,837) for their troubles.

To their credit and with more than a touch of irony and poignance, the KHL introduces the story on their website with the headline, ‘This is hockey?’

Do Helmets Make Contact Sport Safer?

http://online.wsj.com/article/SB10001424052748704402404574527881984299454.html

The Wall Street Journal published an interesting story about the role helmets serve in protecting players in American football.  The article describes how helmets were invented to protect against skull and facial fractures which were then pervasive in the game and how those injuries have been replaced by concussions.  Whilst helmets reduced the likelihood of lethal skull fractures, they also paradoxically created a sense of invulnerability that encouraged players to collide more forcefully, more often and with hits directly to the head.  

The discovery that the compounding effects of ‘wear and tear’ to the brain as a result of such repeated hits is being felt by players years after they retire from American football has caused the game (and Congress) to take a hard look at itself.

The piece also provocatively showed how the at-least equally tough Australian football players, who do not wear the body armour and helmets worn by their American brethren, are 25% less likely to sustain a head injury although their incident rates for shoulder and knee injuries are higher.  This suggests that players compensate for the lack of personal protective equipment by either not hitting as violently or by knowing how to take a hit.  

On a related note, it is noteworthy that after years of dismissively rejecting any criticism of injuries to its hockey players by saying that the game was inherently violent, general managers of the National Hockey League are now contemplating rule changes that would make egregious blind-side hits to the head illegal.  This tide change was brought on by a recent rash of heat shots resulting in players temporarily losing consciousness and getting concussed.

No doubt motivating the decision makers of both leagues is how rule changes will affect the integrity of the game and the bottom line of the sport.  With bigger, stronger and faster players hitting one another harder than ever before, the NHL reasonably foresees a player getting paralyzed or killed if it doesn’t do something.

The National Football League, however, appears not to have an appetite to seriously look at this issue.

In another posting, I’ll couple American football players’ behavioural adaptation to helmets (by hitting harder) and hockey players’ response to rules cracking down on fighting (by taking more cheap shots) with the risk homeostasis theory as promulgated by Dr. Gerald Wilde of Queen’s University in Canada.  In short, Wilde’s theory says that a person or a system unconsciously calibrates and accepts a certain level of risk in order to maximize the overall expected benefit from an activity.  Thus, a control measure designed to mitigate the risk in one area (such as helmets or rule changes) is compensated by behaviour which elevates the risk to its pre-existing level.  This makes for quite the balancing act!

Hockey Goalie Pleads Guilty to Assault

http://www.montrealgazette.com/sports/Jonathan+pleads+guilty+assault+charges/2077429/story.html

Chicoutimi, Quebec

Jonathan Roy pleaded guilty to simple assault in a Quebec court and was granted an absolute discharge by the judge today.  The charge stemmed from an incident during a Quebec Major Junior Hockey League playoff game in March 2009 when Quebec Remparts goaltender Jonathan Roy skated the length of the ice to fight an unwilling and defenseless Bobby Nadeau.  Roy’s attack was brutal and barbaric.  He punched Nadeau at least 14 times even while his victim lay supine on the ice. 

Roy’s guilty plea saved the court the task of balancing The Criminal Code of Canada with the playing culture of hockey.  Hockey is renowned for its violence.  What made this case interesting was that whilst hockey players generally consent to some level of violence both within and outwith the rules and accept some risk of injury, Roy’s victim did not agree to fight nor attempt to defend himself.  Incredibly, he was not injured. 

This case is unique insofar as a hockey player pleaded guilty to a charge of criminal assault for a fight in which the victim was not harmed.  A person commits an assault under s.265 of the Criminal Code when he applies force intentionally to another person, directly or indirectly, without the consent of the victim.  This clearly was the case at bar.  It is noteworthy that the sport of hockey is replete with instances where players have been injured in equally egregious circumstances but no charges are filed as it is rationalized as being all part of the game.

It’s impossible to speculate whether or not this case represents a turning point in Canadian courts’ treatment of hockey violence.  One thing for sure though, given that Roy couldn’t hurt Nadeau with a dozen-plus punches, it’s a good thing he’s hung up his skates and taken up a new career in singing.

Hockey Player Acquitted of Assault

http://www.vancouversun.com/Sports/Judge+acquits+Victoria+hockey+goon+assault/1753853/story.html

Victoria, BC 

Robin Gomez was acquitted of assault causing bodily harm in an incident which arose from a punch thrown during a semi-professional hockey game in 2008.  Hubbard J ruled that players impliedly consent to this type of misconduct and that retaliatory hits are part of the game. 

In several past hockey assault cases, defendant players have successfully pleaded that they were either provoked or acted in self-defence.  These acts of provocation included being struck in the head by an opponent’s stick or cross-checked from behind.  

What is particularly interesting in this case is that Hubbard J appears to regard taunting and trash talking as sufficient cause to incite or provoke an assault condoned by the courts. 

Hockey cases such as these are further complicated in proving the necessary mens rea insofar as Gomez’s role in the game is to intimidate and fight but not necessarily to injure.

Chris Ferraro’s civil suit is still pending.

Hockey Violence in Canada – Part Deux

http://www.timescolonist.com/news/Lawsuit+names+Victoria+arena+operator+well+former+Salmon+King/1707712/story.html

Victoria, BC

In anticipation of the criminal assault case (blogged below) beginning on June 15, injured hockey player Chris Ferraro unsurprisingly filed a civil suit three days earlier against Robin Gomez and the owner of Gomez’s hockey team. 

In a potpourri of claims, Ferraro is claiming Gomez was negligent and reckless or, in the alternative, intentionally assaulted him.  In addition, Ferraro is claiming that RG Facilities Ltd., owner of the Victoria Salmon Kings hockey team, was vicariously liable for Gomez’s actions or, alternatively, that they were negligent in allowing the team’s coach to encourage Gomez to leave the bench or in failing to take adequate steps to prevent him from leaving the bench.

Ferraro is claiming general damages, punitive and exemplary damages, special damages, and medical costs.

This is going to get interesting.

Hockey Violence on Trial in Canada

http://www.cbc.ca/canada/british-columbia/story/2009/06/15/bc-victoria-hockey-violence-trial.html

Victoria, BC

On the heels of a high school rugby player convicted of manslaughter last month in the 2007 death of Manny Castillo in Ontario, Canada (http://www.cbc.ca/canada/toronto/story/2009/05/28/castillo-guilty.html), the trial began today of a hockey player charged with assault causing bodily harm.

Robin Gomez of the Victoria Salmon Kings surprised an unsuspecting Chris Ferraro with a hard punch to the face during a minor professional hockey league game last year.  Ferraro hit his head on the ice, was concussed and required eight stitches.

It is yet another in a long line of civil and criminal cases plaguing hockey violence in Canada.  We’ll stay on top of this suit.