R. v. McSorley
Introduction
When does aggressive, hard-hitting hockey become criminal? When does rough
play become dangerous violence? The National Hockey League game that gave rise to this case
witnessed numerous fistfights and plenty of very rough play. But when one player, a known
"enforcer," knocked another known "enforcer" to the ice, causing a concussion and a seizure,
high-sticking became assault with a weapon.
Facts
During an NHL hockey game on February 21, 2000, between the Boston Bruins and Vancouver
Canucks, Marty McSorley of the Bruins and Donald Brashear of the Canucks both known as
"enforcers" -were involved in a series of altercations and fights. Early in the first period they
fought after McSorley crosschecked Brashear from behind. Brashear appeared to get much
the better of McSorley in the fistfight, which ended when Brashear delivered a painful body
blow to McSorley and wrenched him to the ice.
As
Brashear skated past the Bruins's bench to
the penalty box he "dusted off" his hands to signal to the Boston players that he had made
short work of their teammate. These antics clearly antagonized the Boston bench.
Ten minutes later McSorley again crosschecked Brashear from behind, knocking him to the
ice. McSorley swatted Brashear (now without a helmet) several times in the head as he was
getting back to his feet. Rather than fight, Brashear skated off: When McSorley said, "Come
on Don, you've got to fight me again," Brashear replied, "No Marty, I'm not going to fight you.
We're beating you four to nothing." As a result of this incident, McSorley was given back-to-
back minor penalties for crosschecking and roughing, and a ten-minute major for inciting.
Although Brashear later received a penalty for goaltender interference for falling on the
Bruins's goalie, the game settled down until the middle of the third period when Brashear was
slashed by a Canucks player, who was penalized for the infraction. Brashear returned to the
bench where he sat performing a "Hulk Hogan" pose for the benefit of the Boston players,
who were again irate at his mocking behaviour.
In the last minute of the game both Brashear and McSorley were on the ice. Brashear
took two or three power strides down the ice toward his own end, then glided toward his own
blue line. McSorley, on a parallel track, skated hard and caught up to Brashear at the blue line.
As
he approached Brashear, McSorley swung his stick like a baseball bat, striking the side of
Brashear's head with the blade and several inches of the shaft of his stick. Brashear's legs
immediately splayed and he lost his balance and fell back. His helmet having been dislodged,
his head struck the ice. Brashear's tensed neck muscles saved his head from full impact with
the ice. Medical evidence indicated that the slash had contributed to the grade-three
concussion Brashear suffered and the
grand mal
seizure he experienced before regaining
consciousness.
As
a result, Brashear was unable to do any physical activity for the next month.
McSorley was charged with assault with a weapon. Sections 265 and 267 of the
Criminal
Code
provide:
Assault
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