Breaking the Union

[GKJ]

he tripped on his stick

You obviously were not watching the game.

 

[Isles72]

I didnt watch the game , you are correct .

I suppose I come across as supporting Bertuzzi , but I dont .However I doubt he wanted to end Moore's career . The boys on leafs lunch were saying that after Bertuzzi blindsided Moore with the punch he ended up slipping on a stick on the ice which forced him to fall on top of him .

If Moore's career is over , then I think the penalty imposed by the nhl should perhaps be even stiffer than what they've dished out so far .Add 1 more full suspended season , but please , keep ''the law'' out of pro sports at all costs as it only clouds future results of such incidents .

how does the law handle this if it happened in San Jose ? New York ? etc.... its just too uncertain .

let players and fans for that matter read the fine print on the ticket stub

 

[djhn579]

I didnt watch the game , you are correct .

I suppose I come across as supporting Bertuzzi , but I dont .However I doubt he wanted to end Moore's career . The boys on leafs lunch were saying that after Bertuzzi blindsided Moore with the punch he ended up slipping on a stick on the ice which forced him to fall on top of him .

If Moore's career is over , then I think the penalty imposed by the nhl should perhaps be even stiffer than what they've dished out so far .Add 1 more full suspended season , but please , keep ''the law'' out of pro sports at all costs as it only clouds future results of such incidents .

how does the law handle this if it happened in San Jose ? New York ? etc.... its just too uncertain .

let players and fans for that matter read the fine print on the ticket stub

I disagree with this. If the players do something that is completely outside the rules of the game, and it results in someone having permanent injuries that could end their career, why shouldn't the law get involved? The NHLPA is not going to agree to anything that severely punishes players for committing these acts, outside of suspensions in the worst cases. Why is the NHLPA so adverse to protecting their members?

If Moore was paralyzed or ended up dead, should the law be involved? Where do you draw the line?

Keeping the law out only ensures that similar acts will happen in the future.

 

[Jazz]

According to Bob McKenzie, when Bertuzzi was in for his hearing with Colin Campbell in the days following the incident, the NHLPA was also present, and they were adamently against Bertuzzi getting anything more than a few games....how is Moore supposed to feel about that??

 

[RangerBoy]

You obviously were not watching the game.

Brian Burke wrote that in the Hockey News

 

[chiavsfan]

Brian Burke was also the GM of the Canucks at the time, of course he is going to stick up for his player. Dosen't change the fact that he is a moron.

 

[eye]

Where is Tom Cruise when you need him. Goodenow has called a "Code Red" and we need you to defend Steve Moore!

Seriously though, the NHLPA "The Bob Goodenow Show" doesn't care about Bertuzzi or Moore or any of it's individual players. They don't care if the NHL contracts or if jobs are lost. They didn't comment or take a stand on visors, no touch icing, constant intent to injure type hits, hitting from behind etc. etc. etc. to protect it's players so what makes you think that the NHLPA will defend Bertuzzi when Moore launches his multi level civil suit?

 

[arnie]

Even though I'm pro-NHLPA, I witnessed someone yesterday who could essentially break the union.....Steven Moore. While everyone seems to think that the owners will cause the players to break, I think Steven Moore is the one person who can actually topple the union and cause it to really fragment.

If Steven does file a lawsuit against Bertuzzi, I think it's very easy to see that the NHLPA will come after Moore hard. That might be just the break the owners need. Many players at the lower end of the pay scale will probably support Steven while many players at the higher end of the scale will talk about solidarity and brotherhood in light of this.

The fact that the NHLPA hasn't looked after one of their own either is what I find most troublesome about this. So, for those of you who want to see the union dissipate, here you go......

Moore will only file a suit if and when his playing days are over. In a lawsuit, damages will be calculated on the basis of lost future earnings. This can't be done if Moore is going to play more. That's the main reason that the lawsduit is on hold. There is no way that Moore will ever play while a lawsuit is pending.

 

[arnie]

I may sound a bit old school here but I really cant stand the fact that ''the law'' can get involved in a sporting event .

I see, so if Bertuzzi pulled a gun and shot Moore, then the law should not get involved because it was on the ice?

How about stabbing him with a knife?
How about hitting him with a blackjack?

Where exactly do you draw the line? Neandrathal notions like yours have no answer for this.

But there is an answer. It's called "implied consent." You take accept responsibility for risks in many hazardous activities - skiers accept the risk of breaking a leg. Hockey players accepot the risk of being boarded or hit in the face with a shot.

But they don't accept the risk of somehow coming up from behind, punching them in the dead, driving them to the ice and cobtinually punching them - especially when the person doing this weighs 40 pounds more. What Betruzzi did went far beyong implied consent and was clearly a criminal act.

 

[Crosbyfan]

As for the whole he should have fought the guy routine, remember that the next time someone follows you out of a bar, challenges you, then beats you into a coma. If you had been man enough you would have accepted the challenge it likely would not have been that bad a beating and things would have turned out okay. Nice logic.

Outside of a bar is a totally different story; the law would have to get involved. The above should be settled inside the bar with whatever knives, broken beerbottles etc. are at hand. No guns though, or disciplinary measures would be called for. Either way, as long as it stays in the bar then the law should not get involved. Probably the barkeep, owners and perhaps a committee of regular customers should hand out suspensions. They're the ones that best understand these things.

What happens in the bar should stay in the bar.

 

[Frenzy31]

I see, so if Bertuzzi pulled a gun and shot Moore, then the law should not get involved because it was on the ice?

How about stabbing him with a knife?
How about hitting him with a blackjack?

Where exactly do you draw the line? Neandrathal notions like yours have no answer for this.

But there is an answer. It's called "implied consent." You take accept responsibility for risks in many hazardous activities - skiers accept the risk of breaking a leg. Hockey players accepot the risk of being boarded or hit in the face with a shot.

But they don't accept the risk of somehow coming up from behind, punching them in the dead, driving them to the ice and cobtinually punching them - especially when the person doing this weighs 40 pounds more. What Betruzzi did went far beyong implied consent and was clearly a criminal act.

At what point do you draw the line.

You give examples such as shooting and stabbing, but chances are, you wont see that in a game. And noone would argue that the perp. should be tried in the court of law.

However, a cheap shot, which occur in all sports should not be taken to the justice dept. You can't just pick one or two incidents, it is an all or nothing issue. If someone gives another person an elbow, should they go to jail? How about tripping, or facemasking in football or leading w/ you helmet? If you get beamed by a baseball, would you be able to press charges?

I think what Isle72 is saying is things should be handled w/in the league. Once the justice system gets involved, things get messy and once you let the rabbit out of the bag.....

As for Moore sueing him, that I have no problem w/. I don't know about Canada, but in the US, we have an 18 month statute of limitations, so he may have to file it w/in a given time period.

 

[CarlRacki]

Outside of a bar is a totally different story; the law would have to get involved. The above should be settled inside the bar with whatever knives, broken beerbottles etc. are at hand. No guns though, or disciplinary measures would be called for. Either way, as long as it stays in the bar then the law should not get involved. Probably the barkeep, owners and perhaps a committee of regular customers should hand out suspensions. They're the ones that best understand these things.

What happens in the bar should stay in the bar.

Well done.

 

[txomisc]

I see, so if Bertuzzi pulled a gun and shot Moore, then the law should not get involved because it was on the ice?

How about stabbing him with a knife?
How about hitting him with a blackjack?

Where exactly do you draw the line? Neandrathal notions like yours have no answer for this.

But there is an answer. It's called "implied consent." You take accept responsibility for risks in many hazardous activities - skiers accept the risk of breaking a leg. Hockey players accepot the risk of being boarded or hit in the face with a shot.

But they don't accept the risk of somehow coming up from behind, punching them in the dead, driving them to the ice and cobtinually punching them - especially when the person doing this weighs 40 pounds more. What Betruzzi did went far beyong implied consent and was clearly a criminal act.

no doubt man...there is no reason sporting events should be exempt from the law.....hey heres a really cool sport its called The ALSRL the american liquor store robbing league...you know its ok because its a sporting event

 

[txomisc]

Outside of a bar is a totally different story; the law would have to get involved. The above should be settled inside the bar with whatever knives, broken beerbottles etc. are at hand. No guns though, or disciplinary measures would be called for. Either way, as long as it stays in the bar then the law should not get involved. Probably the barkeep, owners and perhaps a committee of regular customers should hand out suspensions. They're the ones that best understand these things.

What happens in the bar should stay in the bar.

that is a completely insane view of how things should work. What happens in walmart shoudl stay in walmart? What happens in my own home should stay in my home? Using whatever knives and broken bottles that are handy is ok? Please tell me your post is a joke. You honestly believe law should be suspended becasue someone crossed through a doorway?

 

[CarlRacki]

that is a completely insane view of how things should work. What happens in walmart shoudl stay in walmart? What happens in my own home should stay in my home? Using whatever knives and broken bottles that are handy is ok? Please tell me your post is a joke. You honestly believe law should be suspended becasue someone crossed through a doorway?

It was a joke, and a mighty funny one at that. Unfortunatelty, sarcasm doesn't translate well over message boards.

 

[txomisc]

It was a joke, and a mighty funny one at that. Unfortunatelty, sarcasm doesn't translate well over message boards.

wow thank God...even more unfortunate is the fact that I can actually envision people have that opinion

 

[Wetcoaster]

I may sound a bit old school here but I really cant stand the fact that ''the law'' can get involved in a sporting event .

I strongly believe that whatever happens during the game ''on ice'' should be settled via the league office .

Moore should have known he had to face the music for his elbow to Naslund's head sooner or later .He should have been man enough to turn around and take his medicine from Bertuzzi when he was tugging at his jersey to fight .Instead he ignored Bert and the rest is history .

interesting how the blow to Naslund's head isnt coming up too often

Maybe this will help you understand as set out in the McSorley case:

[8] In the context of this case, it is especially important for the public to understand how these proceedings were initiated. The question has been asked, "Why are the courts bringing these proceedings?" The answer of course is that the courts had no part in laying the charge. Judges have little or no control over intake into the justice system. Crown Counsel, in their discretion to prosecute, decide which complaints will result in criminal charges.

[9] Mr. Hicks, in his submission, explained why the act of McSorley in striking Brashear resulted in this charge being laid. It was as follows:

"In our submission, that act is precisely why the law, the criminal law, has a place in the hockey rink. It is why the law refuses to sanction those acts as a matter of public policy. It is particularly significant when that act is carried out in the National Hockey League at the highest level of the game in circumstances that are watched by millions of people for whom the game is important, many of whom play that game at a whole variety of levels. That's why the public policy issue justifies the criminal law's involvement, and that's why these rules as to the application of the criminal law are present. Our submission is that this is precisely the kind of case, precisely the fact situation that the criminal law is intended and has a place to deal with. It is way beyond the scope of this game. It is irrelevant. It is an act that is completely irrelevant to the game that is taking place on the ice. Mr. McSorley may have felt that there was a need to deliver a message to his team that we don't quit, but you don't deliver that message by putting another player's health and safety at risk, and that is what happened in this case, we submit, and that is why it is a criminal act."​

[10] The power exercised by the Crown in proceeding with matters such as this has been endorsed many times by the courts. As an example, our present Associate Chief Justice Dohm made these comments in 1976 in R. v. Henderson, [1976] 4 W.W.R. 119 at 127:

I fully realize that if too many legal restrictions are placed upon those who participate in sports where the very nature of the game precipitates bodily contact, the game will soon lose not only players but also spectators. It certainly is not my plan in any way to inhibit the interaction between players, but what is society to do when those interactions between participants lead to conduct which, if it were anywhere but in the arena or on a playing field, would attract criminal sanctions without any delay on the part of the authorities? Surely the authorities are not to turn a blind eye while the law of the jungle prevails. Quite the contrary, where there are obvious infractions of the criminal law, the authorities are duty-bound to take whatever action is necessary to prevent a repetition of such conduct.​

[11] A related issue includes the question of whether the criminal law process should be pre-empted where discipline procedures have been taken by the hockey authorities. Again, I must emphasize that this is not an issue related to a determination of whether Mr. McSorley has committed a crime.

[12] There are many groups that claim authority to discipline their members. Some are statutory, such as law societies and judicial councils, and some exist by virtue of private contractual arrangements such as in the case of the National Hockey League. Even where the disciplinary body is statutory, its status is often very controversial. There have been many cases before police discipline tribunals and medical licensing authorities where the public has been suspicious of the process, fearing that those involved are getting special treatment or that the truth is being concealed. In my view, there should be a heavy onus on those purporting to pre-empt the normal criminal process, particularly where it is a private organization such as a group of hockey owners. Statutory bodies must act in the public interest; businessmen have no such obligation.

[13] Comments by judges in two previous cases reflect this. In one of the first cases involving NHL players, R. v. Maki, (1970) 1 C.C.C. (2d) 333 at 336, the following comments were made by the trial judge:

Although no criminal charges have been laid in the past pertaining to athletic events in this country, I can see no reason why they could not be in the future where the circumstances warrant and the relevant authorities deem it advisable to do so. No sports league, no matter how well organized or self-policed it may be, should thereby render the players in the league immune from criminal prosecution.​

And in R. v. Watson, (1975) 26 C.C.C. (2d) 150 at 156, the judge said:

Hockey is a fast, vigorous, competitive game involving much body contact. Were the kind of body contact that routinely occurs in a hockey game to occur outside the playing area or on the street, it would, in most cases, constitute an assault to which the sanctions of the criminal law would apply. Patently, when one engages in a hockey game, one accepts that some assaults, which would otherwise be criminal, will occur and consents to such assaults. It is equally patent, however, that to engage in a game of hockey is not to enter a forum to which the criminal law does not extend. To hold otherwise would be to create the hockey arena a sanctuary for unbridled violence to which the law of Parliament and the Queen's justice could not apply.​

 

[thinkwild]

That is a good point in that even if the Doctors association suspended a member, it doesnt preclude his criminal prosecution. The courts should have a role at some point, but was the line effectively drawn? Is pressing charges soley prosecutorial discretion? Was there any guidelines as to actions or intent? Would all of the "Hockey players Code" stand up to prosecutorial discretion?

 

[Wetcoaster]

That is a good point in that even if the Doctors association suspended a member, it doesnt preclude his criminal prosecution. The courts should have a role at some point, but was the line effectively drawn? Is pressing charges soley prosecutorial discretion? Was there any guidelines as to actions or intent? Would all of the "Hockey players Code" stand up to prosecutorial discretion?

In BC charges are laid after Crown Counsel have reviewed the police reports. It is called a "charge approval process" and is used in several other provinces (NB and Quebec IIRC). In other provinces it is the police that lay charges but the problem that arises is that the police tend to overcharge ("everything but kitchen sink" charges) and lay charges that cannot be proven on the evidence. This wastes valuable court time so we have a different procedure.

Under the BC Crown Counsel Act, Crown Counsel are responsible for the decision to prosecute. The charge assessment policy requires Crown Counsel to examine the case at each stage of the prosecution and decide whether there is a substantial likelihood of conviction and, if so, whether prosecution is required in the public interest.

There are extensive guidelines in the Crown Counsel's manual but ultimately it is the decision of the reviewing Crown Counsel. It would be improper for anyone to interfere with that discretion. Here is the policy:

Charge Approval Guidelines

Date: October 1, 1999
File No.: 55100-00
Policy No.: CHA 1
Reference:
Cross-Reference: BAI 1.1; CHA 1.1; CHA 1.2; DIS 1
INTRODUCTION

The decision to initiate a prosecution is one of the most important duties of Crown Counsel. The Crown Counsel Act authorizes Crown Counsel, under the direction of the Assistant Deputy Attorney General, to “examine all relevant information and documents and, following the examination, to approve for prosecution any offence or offences that he or she considers appropriate†(section 4(3)(a)). The independence of this function is confirmed by section 5 of the Act. Any intervention by the Attorney General with respect to the approval or conduct of a prosecution “must be given in writing to the Assistant Deputy Attorney General and published in the Gazette.†In discharging their charge approval responsibilities, Crown Counsel must be fair, independent, and objective. Crown Counsel’s independence must also be balanced with measures of accountability. Principled charging decisions are assured when Crown Counsel experienced in assessing evidence exercise discretion in accordance with Branch public policies when reviewing the available evidence and applicable law.

During the charge approval process Crown Counsel does not have the benefit of hearing the testimony of Crown witnesses, either in direct or cross-examination nor the defence evidence, if any. During the course of a preliminary hearing, or when preparing for trial, the Crown’s case may be materially different than counsel’s initial assessment at the early charge approval stage. Therefore, the requirement to meet the charging standard continues throughout the prosecution.

CHARGE APPROVAL STANDARD

There are two components to the charge approval standard. The evidence available must be examined to determine:

1. whether there is a substantial likelihood of conviction and, if so,

2. whether a prosecution is required in the public interest.
The charge approval standard is explained below.

1. Evidentiary Test - Substantial Likelihood of Conviction

Subject to the exception described below, the usual evidentiary test to be satisfied is whether there is a substantial likelihood of conviction. A substantial likelihood of conviction exists where Crown Counsel is satisfied there is a strong, solid case of substance to present to the Court. In determining whether this standard is satisfied, Crown Counsel must determine:

(a) what material evidence is likely to be admissible;

(b) the weight likely to be given to the admissible evidence; and

(c) the likelihood that viable, not speculative, defences will succeed.

Evidentiary Test in Exceptional Cases:

Exceptional circumstances may require that a prosecution proceed even though the usual evidentiary test described above is not satisfied. Such circumstances will most often arise in cases of high risk violent or dangerous offenders or where public safety concerns are of paramount consideration. Such charging decisions must be approved by Regional or Deputy Regional Crown Counsel. The evidentiary test in such cases is whether Crown Counsel is satisfied that there is a reasonable prospect of conviction. This test is higher than that of prima facie case but does not require a conclusion that a conviction is more likely than not. A weighing of admissible evidence and viable defences is not required. Crown Counsel should consider:

(a) what material evidence is arguably admissible;

(b) whether that evidence is reasonably capable of belief; and

(c) whether that evidence is overborne by any incontrovertible defence.

2. Public Interest Test

It has never been the rule that all criminal offences which meet the evidentiary test must automatically be the subject of prosecution. Once Crown Counsel is satisfied that the evidentiary test is met, counsel will then determine whether the public interest requires a prosecution. Hard and fast rules cannot be imposed as the public interest is determined by the particular circumstances of each case and the legitimate concerns of the local community. In making this assessment, among the factors Crown Counsel will consider are the following:

A. Public Interest Factors in Favour of Prosecution

It is generally in the public interest to proceed with a prosecution where the following factors exist or are alleged:
(a) the allegations are serious in nature;
(b) a conviction is likely to result in a significant sentence;
(c) considerable harm was caused to a victim;
(d) the use, or threatened use, of a weapon;
(e) the victim was a vulnerable person;
(f) the alleged offender has relevant previous convictions or alternative measures;
(g) the alleged offender was in a position of authority or trust;
(h) the alleged offender’s degree of culpability is significant in relation to other parties;
(i) there is evidence of premeditation;
(j) the offence was motivated by the victim’s race, national, or ethnic origin, colour, religious beliefs, sex, age, mental or physical disability, political views, or sexual orientation;
(k) there is a significant difference between the actual or mental ages of the alleged offender and the victim;
(l) the alleged offender committed the offence while under an order of the Court;
(m) there are grounds for believing that the offence is likely to be continued or repeated;
(n) the offence, although not serious in itself, is widespread in the area where it was committed.

B. Public Interest Factors Against a Prosecution

It may not be in the public interest to proceed with a prosecution where the following factors exist or are alleged:
(a) a conviction is likely to result in a very small or insignificant penalty;
(b) there is a likelihood of achieving the desired result without a court proceeding. This could require an assessment of the availability and efficacy of any alternatives to prosecution. Crown Counsel need not conclude, in advance, that a prosecution will proceed in the public interest if a referral for an alternative measure is not acceptable. Information with respect to the suitability of a candidate for diversion or alternative measure is a factor to be taken into consideration by Crown Counsel in reaching a final charging decision;
(c) the offence was committed as a result of a genuine mistake or misunderstanding (factors which must be balanced against the seriousness of the offence);
(d) the loss or harm can be described as minor and was the result of a single incident, particularly if caused by misjudgement;
(e) the offence is of a trivial or technical nature or the law is obsolete or obscure.
C. Additional Factors to be Considered in the Public Interest
(a) the youth, age, intelligence, physical health, mental health, and other personal circumstances of a witness or victim;
(b) the personal circumstances of the accused, including his or her criminal record;
(c) the length and expense of a prosecution when considered in relation to the social benefit to be gained by it;
(d) the need to maintain public confidence in the administration of justice;
(e) the time which has elapsed since the offence was committed.

REPORT TO CROWN COUNSEL

In order that counsel may appropriately apply the charge approval standard, the Report to Crown Counsel (RTCC) must provide an accurate and detailed statement of the evidence available. The following are the basic requirements for every RTCC:

1. a comprehensible description of the evidence supporting each element of the suggested charge(s);
2. where the evidence of a civilian witness is necessary to prove an essential element of the charge (except for minor offences), a copy of that person's written statement;
3. necessary evidence check sheets;
4. copies of all documents required to prove the charge(s);
5. a detailed summary or written copy of the accused's statement(s), if any; and
6. accused's criminal record, if any.

There may be cases where the RTCC will not comply with these standards. The RTCC should then be returned to the investigator with a request for additional information before a charge is approved.
If the offence is serious and there is sufficient evidence to charge the detained accused but insufficient information to determine Crown’s position on release, resort may be had to s. 516 to adjourn the show cause. If the case involves a high risk offender, refer to the policy on Bail - High Risk Offenders (see BAI 1.1) which states that “Where Crown Counsel has reason to believe further essential information can be obtained, Crown Counsel should ask the Court for a remand ....â€
In all cases, in applying the charge standard Crown Counsel’s important obligations are to:

1. make the decision in a timely manner recognizing the need to expedite the decisions where an accused is in custody or where an RTCC requests a warrant. This may require that all warrant requests and all files involving violence are separately, and immediately, addressed;

2. record the reasons for the decision; and

3. where appropriate communicate with those affected including the police so that they understand the reasons for the decision.

Charge Approval - Police Appeal Regarding Crown Decision

Date: October 1, 1999
File No.: 55100-00
Policy No.: CHA 1.1
Reference:
Cross-Reference: CHA 1; PRI 1

Inherent in the charge approval process is an invitation to the police to discuss reasons for rejection of a charge with Crown Counsel who rejected the charge. It is the responsibility of the police to contact the Administrative Crown should they wish to discuss reasons for rejecting a charge. While protocols with the police may be developed at the local level, each Crown Counsel office should be the initial focus for police concerns.

A Chief Constable or Officer in Charge of a detachment who disagrees with a decision not to lay a charge and who is unable to resolve that disagreement following a full discussion with Administrative Crown Counsel, may ask Regional Crown Counsel for a review of the decision. Regional Crown Counsel shall ensure that such a review occurs and advise the senior officer of the decision.

A Chief Constable, Officer in Charge of a detachment, or more senior officer of the RCMP, who disagrees with the decision of Regional Crown Counsel may ask the Assistant Deputy Attorney General to review the decision. If asked, the Assistant Deputy Attorney General will review the decision and advise the senior officer of his decision.

The Criminal Justice Branch recognizes the responsibility of the police to lay an Information where they have reason to believe any part of the Crown's decision making process has been tainted by corruption or impropriety. It is expected this procedure would only be invoked upon exhaustion of the appeal process by a Commanding Officer. An Information, therefore, would be sworn by, or on behalf of, a Chief Constable or the Deputy Commissioner, RCMP.

It is expected that the Assistant Deputy Attorney General would always be notified in advance of the police intention to swear an Information in these cases.

Where an Information is sworn by the police on behalf of a Chief Constable or the Deputy Commissioner, RCMP, following exhaustion of the appeal process, both the Regional Crown Counsel and the Assistant Deputy Attorney General must be immediately advised. In any other case where an Information has been sworn by the police contrary to a decision of Crown Counsel, the private prosecutions policy applies, see PRI 1.

Hope that helps clarify the situation.

 

[thinkwild]

Thats pretty comprehensive thanks. I think the crown did a pretty good job, and i trust their discretion.

But the line of when it crosses into criminal from league matter was what I was wondering. Surely there would be some grey areas making a concise description of the particular parameters that would get them involved would be valuable. At our local midget games, is there a guideline for when to call the police if no video evidence is available? If (a) a conviction is likely to result in a very small or insignificant penalty; I guess I was wondering if there were any lines drawn for when more than just league suspension is warranted. Perhaps reasonable men would know it when they see it.

Bertuzzi on Moore - Yes
Domi on Niermayer - No.
The difference between criminal and league prosection is ... public reaction?

 

[PecaFan]

Those guidelines point out just how silly this whole charges thing was. It pretty much fails in almost every category.

There was never a public interest in this case. It was essentially a private matter, between highly paid hockey players who understand the risks when they take the ice. It's not like an innocent bystander had been attacked, there was never a threat to the general public.

Further, a conviction was unlikely, and even if one had been achieved, the penalty was always going to be insignificant. The time and expense of the case far exceeded any benefits, there was no need to "maintaing confidence in the administration of justice", etc.

 

[Wetcoaster]

Thats pretty comprehensive thanks. I think the crown did a pretty good job, and i trust their discretion.

But the line of when it crosses into criminal from league matter was what I was wondering. Surely there would be some grey areas making a concise description of the particular parameters that would get them involved would be valuable. At our local midget games, is there a guideline for when to call the police if no video evidence is available? If (a) a conviction is likely to result in a very small or insignificant penalty; I guess I was wondering if there were any lines drawn for when more than just league suspension is warranted. Perhaps reasonable men would know it when they see it.

Bertuzzi on Moore - Yes
Domi on Niermayer - No.
The difference between criminal and league prosection is ... public reaction?

It is seldom going to be black and white - it is all shades of grey on some sort of continuum. Public reaction may have something to do with the investigation but in BC the Crown tends to follow the manual and is not swayed by public reaction for the most part. However to some extent the "public interest" would have to be factored into the decision.

 

[Wetcoaster]

Those guidelines point out just how silly this whole charges thing was. It pretty much fails in almost every category.

There was never a public interest in this case. It was essentially a private matter, between highly paid hockey players who understand the risks when they take the ice. It's not like an innocent bystander had been attacked, there was never a threat to the general public.

Further, a conviction was unlikely, and even if one had been achieved, the penalty was always going to be insignificant. The time and expense of the case far exceeded any benefits, there was no need to "maintaing confidence in the administration of justice", etc.

The guidelines pretty much mandated the charges in the circumstances.

You do not seem to understand the term "public interest" as it is used here. "Private matter" could be claimed in numerous crimes - that is not the issue and has absolutely nothing to do with the consept of "public interest".

It is not necessary that all the factors be present - in fact that is likely impossible. One or two as here are generally sufficient. Plus you have to factor in the McSorley case where charges were laid and this was prosecuted under the same section of the Criminal Code.

A conviction was a reasonable possibility and in fact there was one entered by the court - perhaps you missed that? A year's probation and the others conditions proposed are considered significant.

 

[PecaFan]

I see a plea bargain, a conditional discharge, and no criminal record, not a conviction.

And while you may point to one or two of the factors were present in the "why to proceed section", there were just as many if not more in the "why not to proceed" section. All of these were present:

B. Public Interest Factors Against a Prosecution

(a) a conviction is likely to result in a very small or insignificant penalty;
(b) there is a likelihood of achieving the desired result without a court proceeding.
(d) the loss or harm can be described as minor and was the result of a single incident, particularly if caused by misjudgement;

(while the harm was not minor, it was a single incident, and a misjudgement)

C. Additional Factors to be Considered in the Public Interest
(b) the personal circumstances of the accused, including his or her criminal record;
(c) the length and expense of a prosecution when considered in relation to the social benefit to be gained by it;
(d) the need to maintain public confidence in the administration of justice;

 

[Wetcoaster]

I see a plea bargain, a conditional discharge, and no criminal record, not a conviction.

Bertuzzi was pleaded guilty, was convicted and sentenced.

He has a criminal record until such time as he satisfies the conditions imposed by the judge. Once he satisfies the conditions then he will be deemed to not have been convicted for the purposes of Canadian law. However that does not assist him in respect of US immigration law that considers him convicted.