Kevin “Killer” Kaminski’s recent concussion has revived much of the debate over violence in Canadian hockey.

Interesting enough it is cases in hockey that have led to the test used in Canada for criminal causation of manslaughter.

The Smithers Test

In Smithers v. R. (1977), the appellant was a black teen that received taunts and racial slurs from another player.

He waited for the individual to leave the rink after the game and committed an act of assualt and battery, including a kick in the stomach that caused him to vomit.

The attack, though not necessarily intense in nature, resulted in the death of the victim due a malfunctioning epiglottis that caused the victim to choke on his vomit.

Laskin C.J. stated,

There was substantial evidence before the jury indicating that the kick was at least a contributing cause of death, outside the de minimis range, and that was all that the Crown was required to establish. It was immaterial that the death was in part caused by a malfunctioning epiglottis to the malfunction of which appellant may, or may not, have contributed. A person commits homicide when directly or indirectly, by any means, he causes the death of a human being and it was therefore no defence that appellant did not expect that death would ensue.

The case upheld the use of the thin skull rule for homicide, which states that you take the victim as they are, and a wrongdoer is responsible for the unintended and unforeseen consequences of their actions.

In R. v. Creighton, MacLachlin J. said,

The Thin-Skull rule is a good and useful principle. It requires aggressors, once embarked on their dangerous course of conduct which may foreseeably injure others, to take responsibility for all the consequences that ensue, even to death. That is not, in my view, contrary to fundamental justice.

Other Applications

The thin skull rule has also come up recently in the media on the use of tasers by the police. Ryan Fritsch states in a letter to the Star,

…The same rule should apply to cases involving Tasers. We imagine that they are a harmless way to stun a person, but some people have “thin skulls” that render a Taser a deadly weapon. Therefore they must only be used as a last resort and as a weapon of deadly force. In other instances of their use, the thin skull rule should apply. The only way you will reign-in the increasing and increasingly senseless number of Taser deaths at the hands of bullying police is for the police and judiciary, as a matter of policy, to start applying the “thin skull rule” where a Taser was used inappropriately.

The thin skull rule also has a considerable amount of application in Torts law.

Implied Consent
In 1934, hockey rinks didn’t have the protective plexiglass walls that surround the rink today.

In Elliott and Elliott v. Amphitheatre Ltd., the defendant, a hockey player, was absolved of liability for a puck that hit a spectator in the stands.

The court held that the plaintiff implicitly consented to injuries incidental to attending sporting events, thereby providing implied consent.

Limits to Consent

Agar v. Canning (1965) similarly found that players consented to the risk of unintentional injury by participating. This implied consent was echoed in the criminal case of R. v. Cey (1989), but the court also stated,

In agreeing to play the game a hockey player consented to some forms of intentional bodily contact and to the risk of injury therefrom. However, there were some actions which could take place in the course of the game that were so violent it would be perverse to find that anyone taking part in the game had impliedly consented to subject himself to them. The scope of implied consent was to be determined by reference to objective criteria including the conditions under which the game was played.

The criminal case of R. v. Jobidon (1991) expressed similar concerns over consentual limits for violence,

Just as the common law has built up a rich jurisprudence around the concepts of agreement in contract law, and volenti non fit injuria in the law of negligence, it has also generated a body of law to illuminate the meaning of consent and to place certain limitations on its legal effectiveness in the criminal law. It has done this in respect of assault. In the same way that the common law established principles of public policy negating the legal effectiveness of certain types of contracts — contracts in restraint of trade for example — it has also set limits on the types of harmful actions to which one can validly consent, and shelter an assailant from the sanctions of our criminal law.

A Toronto firm, Zvulony & Company, explains the relevance of this case in Hockey Violence and the Law,

The legal outcome of the Jobidon is that the consent of the opponent is no defence when an adult intentionally inflicts bodily harm during a brawl or fistfight. Public policy mandates that there are limitations to when harmful conduct to which one may validly consent to would bar a conviction for assault.

Excessive Force

R. v. Ciccarelli (1988) found that consent to use physical force had been exceeded by one hockey player who was held liable:

The accused, a hockey player, had struck another player in the head three times with his hockey stick during a hockey game. The blows had been struck at a time when play in the game had stopped and after the accused had been “cross-checked” by the victim. (1) There was an implied consent to the use of force between players as a result of the players voluntarily engaging in such contact sports but the nature of the implied consent was limited to the ordinary or usual risks and hazards of the sport. The victim here testified that he had not consented to what had actually occurred nor was there any evidence that the accused had a belief that what happened was within the purview of implied consent.

R. v. McSorley (2000) also found,

I conclude there is an unwritten code of conduct agreed to by the players and the officials. This amalgam of written rules and the unwritten code leads to composite rules, such as the following. It is a legitimate game strategy to slash another player, but if done with sufficient force, and if the referee sees it, then the offender’s team plays one player short for two minutes. It is a legitimate game strategy to fight another consenting player, but the offenders are kept off the ice for a period of time determined by the referee.

However, the court found that the defendant’s slashing to the head resulting in a grand mal seizure and three concussions constituted an assault, as it was not the type of blow considered normal in the game:

A hockey stick is not designed as a weapon, but is often used as such to slash and cross-check other players… Every time a player uses a stick to apply force to another player, the stick is being used as a weapon and not to direct the puck as it was designed to do.

So although courts historically have been reluctant to convict sports violence due to consent, they are increasingly imposing limits on this consent and the type of violence that is sanctioned.

If the public expects even higher standards of conduct from players in the future, we may see this line shift further.