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touchline
Through Legal Eyes
What are the implications for contact sports following
the manslaughter conviction in May of this year of
a youth playing school league rugby in a district of
Toronto, Canada? The victim, Manny Castillo, 15
suffered a severe head injury after he was picked
up and slammed to the ground in the final moments
of a game. He died days later in hospital. The Judge
later sentenced the youth to a year’s probation and
community service.
This month our legal experts examine the fine line
between normal injury incurred in the course of the
game and assault.
Is sport
above
the law?
The three topics
discussed in the prior
issues of
Touchline
– assumption of risk,
duty of care, and tort reform, all feature in
a recent decision by the Ontario Court of Justice which resulted
in the conviction of a high school rugby player for manslaughter
as a result of a spear tackle on an opponent late in a match.
Towards the end of an under-17 game between two Toronto
area schools, a ruck had occurred from which the ball came
out and was being run towards the centre of the field. The
defendant came from an off-side position with a head of speed
and contacted the victim, lifting him off the ground and driving
him backwards before slamming him into the ground resulting
catastrophic injuries and death soon thereafter. In rendering its
decision (the accused was a young offender and the case was
decided by a judge sitting without a jury), the court found two
primary issues of importance:
did the act cause death and was that act unlawful?
Although physical force in contact sports is not usually considered
to be criminal because participants impliedly consent to it by virtue
of their participation, such consent is only implied for contact or
force that comes within the rules of the game. This general
principle has been broadened to include force that is outside the
rules of the game but within the scope of the accepted standards
by which the game is played. With respect to criminal conduct
in the realm of sports, there is a balance of weighing what a
participant has actually consented to against the purpose of
criminal law – to protect individuals from uncontested invasions
of the physical integrity.
In
R. v. C.C.
the court held that a participant’s knowledge or
expectation that violence well outside the rules of the game might
R. v. C.C.
[2009] O.J. 2216.
R. v. Cey
(1989) 48 C.C.C. 3d 480 (Sask. C.A.);
R. v. Leclerc
[1991] O.J. No. 1533 (C.A.).
Canadian Perspective
Is The Playing Field a Criminal Law Free Zone?
Not in Canada!
occur is not the same thing as consenting to such violence. By
way of explanation, Duncan J. stated that “[i]f it were otherwise,
in sports the line into criminality would be pushed ever forward
with the latest violent outrage serving to set the standard for
that to which all future participants are deemed to consent.” In
determining what a reasonable expectation of a participant in an
organized sporting event would be, Duncan J. reasoned that the
“more reasonable inference is that the participant entered the
game for its pleasures and benefits and had confidence that his
opponents would act in a civilized manner, that the rules would be
enforced by presiding officials and that gross violence would be
deterred by sanctions, including civil and criminal law.” One must
keep in mind that this decision is written in the context of high
school rugby and not an IRB sanctioned match; however, as has
been discussed in prior issues of Touchline, professional athletes
are by no means immune from civil and, indeed, criminal liability
for their actions on the pitch, field or ice.
With respect to the tackle itself, the court found that the force
applied was not within the rules of the game. There was no
evidence of any unwritten code or common unlawful practices
except, as has been the case in other Canadian and international
jurisprudence on the doctrine of implied consent, to the extent
that punches, kicks and the like are sometimes inflicted in the
close and sheltered quarters of a scrum or ruck. Accordingly,
Duncan J. found that nothing suggested that the sort of conduct
found to have taken place would be within the accepted standards
of play – there was no implied consent. Accordingly, the court
reasoned that, not only was there a lack of implied consent, but
the conduct amounted to a reckless disregard for the safety of
the deceased. In what will likely be the most oft-quoted portion
of this decision in future sports-liability actions, Duncan J. stated
that: “[t]he playing field is not a criminal law-free zone…[t]he
laws of the land apply in the same way as they do elsewhere…”.
Ibid
, note 1 at para. 10.
Ibid
, note 1 at para. 11.
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