Hockey Violence

Fifty-eight years ago a rookie teen-aged defenceman died after a vicious hit from behind launched him head first into the boards. Just hours late his heartsick mother said: "It's murder on ice."

The death of Bob Gillies led to a sensational trial in 1953; many thought it would change the culture of violence that often accompanies hockey. It did not.

From racial slurs, to wrongful hits (remember Aaron Rome in the Stanley Cup), to out and out violence both on the ice and off, hockey has a terrible reputation.

In Smithers v. R. [1978] 1 S.C.R. 506 is the leading Canadian case on causation in manslaughter. Smithers is a hockey case.

On February 18, 1973, Smithers played in a hockey match during which he was subject to numerous racial slurs by Cobby. Smithers and Cobby had a history on ice and after the game Smithers attacked Cobby. Cobby died, although the attack was not the type one might expect would lead to death. The Chief Justice noted:

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.

Hockey’s reputation for violence is not new. At the turn of the last century hockey was so violent that, according to Michael McKinley there were calls for hockey to be banned in much the same way as cockfighting and bearbaiting. Certainly injury and death were not unheard of and two players were killed in three years during brawls on ice.

A modicum of restraint started around the time of the First World War and since then hockey’s violence has been somewhat more muted.

As a legal matter, of course, violence in hockey is generally unlawful. The Court in R v. Henderson [1976] 5 W.W.R. 119 pointed out “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.”

Checking is lawful in hockey, based on the principle of consent. Players agree to physical contact and agree to be checked in much the same way as boxers agree to be hit. The intentional infliction of violence is, in this sense, proper in hockey. But there are limits.

An intentional hit not justified as a check falls outside of the consent implied in playing hockey. Such a hit is an assault and can be prosecuted as such. Similarly, racial slurs or, more generally, defamatory remarks, are not within the scope of normal play or the rules of hockey, and claims for damages are (at least in theory) available.

On the other hand, a miscalculation leading to an otherwise improper hit does not become an assault. In Agar v. Canning. Agar v. Canning, (1965), 54 W.W.R 302 (Man. Q.B.) affd. (1966), 55 W.W.R. 384 (Man. C.A.), a civil case, Canning struck Agar in the face with his stick during a hockey game. The blow was not a premediated hit but was, in some sense anyway, accidental. The Court held someone playing hockey must assume to accept the risk of accidental harm and it would be “inconsistent with this implied consent to impose a duty on a player to take care for the safety of other players corresponding to the duty which, in the normal situation, give rise to a claim of negligence.”

The broader issue of why hockey often leads to violence goes beyond legal questions. Hockey, like many sports, engages very strong emotions. Tie those emotions to a game where physical force is an accepted part of play and it is easy to see how illegal violence can occur. Unfortunately there is little that can be done beyond vigilance by the referees to limit violence on ice. Off ice violence falls to the police and Crowns to deal with.