Bertuzzi Court Judgment...

[StoneMtn]

Well, I personally have little to no interest in this, however, I know there are some hockey fans on this board so I thought you might be interested in reading the more important points from the court judgment rendered as a result of Todd Bertuzzi pleading "guilty" to assault in BC...

R. v. Bertuzzi

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¶ 2 In considering the appropriate sentence in any case, the court must be mindful of at least three factors; that is the nature of the offence, the specific circumstances of the offence, and the circumstances of the offender.

¶ 3 Using that as a general guideline, I note that Todd Bertuzzi has entered a plea of guilty to the offence of assault causing bodily harm of Steve Moore on March the 8th of 2004. The nature of that offence, the nature of any assault offence imports the notion of violence, and violence certainly is not something that is countenanced in the Canadian society.

¶ 4 The assault is exacerbated by the fact that bodily harm was indeed occasioned as a direct result. I will return to the nature of that in a moment.

¶ 5 The circumstances giving rise to this assault occurred during the course of a National League hockey game. Todd Bertuzzi is a member of the Canucks, and Steve Moore is a member of the Colorado Avalanche.

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¶ 7 In the game of approximately three weeks earlier, February 16th, 2004, one of the leading players, the captain of the Vancouver Canucks, Markus Naslund, had been checked by Steve Moore. As a result of the check, Naslund suffered a concussion, some facial lacerations and soreness to his wrist. The check did not result in a penalty, and that seemed to have caused a great deal of irritation to the whole Canucks team, including their captain and their coach. The result was that Markus Naslund missed three games.

¶ 8 Over the course, of the next few days leading up to the next game between these two rivals on March the 3rd of 2004, there were a number of very intemperate and certainly unwise comments made by a number of the Canucks team regarding their attitude towards Steve Moore. It is clear that the underlying premise of those comments was the notion of exacting some retribution.

¶ 9 On March the 3rd of 2004, when these two teams met again, the game was close. At one point a Canucks player challenged Mr. Moore to a fight, which Moore declined. The game seemed then to focus more on the ultimate end, which was who was going to win the game. The game ended in five-five overtime, and nothing further happened between the Canucks and Moore at that time.

¶ 10 The next game was approximately five days later on the 8th of March 2004. It was in Vancouver. And again the teams are very close in the standings at that point. Prior to the game, some of the Canucks players again made comments, but they were not the same sort of comments that had been made prior to the game of March the 3rd.

¶ 11 Nonetheless, when the game started, fairly early on it was obvious that there was a notion of some payback towards Moore. One of the players, Matt Cooke, engaged in a fight with Moore, which seemed to end with a draw. Several other Canucks players seemed to make efforts to goad Moore into consensual fights, but those seemed to be declined. The game appears to have been a rough game and a game which fairly quickly got out of hand for the Canucks. They were down five-nothing at the end of the first period and six-two by the end of the second period. By the third period it seems fairly clear that the game was getting out of control, and that seemed to be exacerbated by the fact that fairly early on in the third period, Colorado scored a short-handed goal, to make it seven-two.

¶ 12 About a third of the way into the third period, we then have the incident which gave rise to the assault charge. The accused was on the ice after his line mates had apparently left. Steve Moore was then put on with his line mates.

¶ 13 When one sees the video, which has been played in this proceedings and been shown from a number of angles, it shows that Bertuzzi approached Mr. Moore, who did not have the puck. Bertuzzi seems to be talking at Moore, and Moore continues to skate, not hard, but glides away from Bertuzzi. They start out in the Canucks' end of the ice. They then move down to the other end, the Colorado end. Bertuzzi continued to say things to Moore, apparently attempting to get him into, or talk him into, or goad him into engaging in a consensual fight. The play then once again moved back towards the Canucks' end, and Moore turned and began to head in that direction, again appearing to ignore Bertuzzi. Bertuzzi reached out with his left hand and dropped his stick from his right hand and struck Moore very hard from behind and on the side, landing the blow, it looks like, in the right temple of Moore.

¶ 14 Much has been made of whether or not Bertuzzi intentionally grabbed Moore's sweater for the purpose of pulling him back and, in essence, pulling him into the punch. From my observations of the video, I could not draw that conclusion. It seems to me that an equally consistent explanation is Bertuzzi grabbed the sweater of Moore to stop him.

¶ 15 After the punch lands, Moore falls, with Bertuzzi falling on top of him. Very quickly thereafter members of both teams join on to what is really a dog pile. After the referees become involved and pull the others off, it is clear that Mr. Moore is lying in a prone position on his chest. There is blood on the ice, and he is in obvious severe discomfort and pain.

¶ 16 With respect to whether or not the defendant intentionally rode Moore to the ice, that is not a conclusion that this court could draw, nor is it one which the Crown urges the court to draw.

¶ 17 As is shown in the video, at the time Bertuzzi let go of the stick in his right hand, the stick fell to the ground. It appears that his left foot mounted that prone stick at the time he punched Moore. Bertuzzi's falling forward is equally consistent with him having lost his balance from having stepped on his own stick.

¶ 18 Nonetheless, I am satisfied that the injuries to the head and to the neck, and indeed other injuries that may have occurred, are directly or indirectly related to the punch. Had he not made the punch, then they wouldn't have gone to the ice.

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¶ 21 As a result of the punch which seemed to land on the right side of Mr. Moore's head, I am satisfied he did indeed suffer soft tissue injury and what are described as two avulsion fractures of the transverse process at the C3 and C4 vertebra. The fractures were undisplaced and uncomminuted, that is they were not broken into fragments. Rather, I accept that what happened is they are hairline fractures of certain small bones associated with the C3 and C4 vertebra. Fortunately, those specific physical injuries have, for the most part, healed properly. There were also facial lacerations which required stitches, and Moore sustained a concussion which rendered him unconscious for a period of time. I believe the estimate is approximately two minutes. I will come back to this.

¶ 22 As a result of the incident, after the dust had settled and the ice was cleared, Mr. Bertuzzi was assessed a ten-minute penalty for intent to injure pursuant to the rules of the National Hockey League. Almost immediately thereafter the National Hockey League suspended him for the remaining portion of the season, which was thirteen games for the Canucks, as well as for the playoffs.

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¶ 25 The specific injuries then addressed were twofold. The cervical spine injury, that is the injury to the neck that I have adverted to, was considered likely to be healed 90 percent within six weeks and 100 percent healed within twelve weeks. Perhaps it took a little bit longer than that, but the prognosis is that the recovery with respect to those cervical spine injuries has been fairly successful. What has been more troublesome is the neurological effects which seem to have flowed from the blow and the resultant post-concussion syndromes.

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¶ 28 The Crown has made efforts to maintain updates on Mr. Moore's neurological condition, and one as of October the 22nd suggested that his situation was improving. There were still symptoms which were primarily subjective symptoms of post-concussion symptomology, but ones which appeared to be generally improving. It looks like he has renewed physical activity under the supervision of physicians and trainers, but it is clear that he is not yet at the level that he was when playing in the National Hockey League.

¶ 29 One doctor, Dr. Adrian Upton, who has been consulted by Mr. Moore, has a less optimistic prognosis of the progress of Mr. Moore. His concerns seem to be based upon the fact that there has not been a complete recovery within the seven to eight months since the injury, and in his opinion that may raise the prospect of some other factors going on with Mr. Moore. Those potential conditions are not ones that could be disclosed by the traditional neurological diagnostic techniques such as the MIR. It is anticipated that Mr. Moore will continue in his rehabilitation and will continue to receive top level medical attention. It is also clear that at this juncture Mr. Moore has not returned to playing hockey at any level, and the prognosis of when he may be able to return is as yet uncertain.

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¶ 34 In considering the circumstances of the offence and the circumstances of the offender, the court will generally look at whether or not there are what are called aggravating factors and mitigating factors which can either make the ultimate sentence more onerous or less onerous, depending on how one balances those.

¶ 35 There are aggravating factors that emerge from this; that, is the prolonged period over which the accused attempted to get Moore to engage in this fight. In so saying, I am not so naïve as to suggest that fights are not a part of hockey. I will leave aside the issue of whether they should be, but the fact of the matter is that hockey is a sport in which there is significant physical contact, and in certain circumstances fighting is considered to be part of the game. It is not a sanctioned part of the game, but it is a part of the game, which is sometimes punished by the imposition of penalties. A ten-minute penalty was given in this case.

¶ 36 There is a brief statement in one of the cases that has been referred to which really sets out the relationship of the courts to what goes on on the rink. It is an old decision. It is the case of R. v. Watson (1975), 26 C.C.C. (2d) 150. That was a case which involved an incident during a minor hockey game. There was a striking by one of them with a stick and then a fight and so on. The court there in considering the issue of provocation and all those sorts of things that come up whenever assault trials are heard, brings those principles down to the issue of a hockey game. I am quoting, about halfway through the case. The judge in that case states as follows:

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. I know of no authority for such a proposition.

He goes on then to quote from the Maki case, [1970] 3 O.R. 780, which is one of the first cases involving an NHL hockey player, that:

No sports league, no matter how well organized or self-policed it may be, should thereby render the players in that league immune from criminal prosecution.

¶ 37 So that is what is in play here.

¶ 38 The confronting of Moore initially may have been within the bounds of the game. To then have the pursuit literally down the ice and then to grab by the sweater in order to get that player to engage in something which it is clear he did not wish to consent to, clearly went beyond the reasonable limits of the game and is an aggravating factor.

¶ 39 The results that flow from it, the facial lacerations, the injury to the neck and the lengthy recovery period are also aggravating factors.

¶ 40 With respect to mitigating factors, there are a number which are obvious. There is the fact of the guilty plea. There is the fact that at this man's age, 29 years of age, he has no criminal record, and this act appears to be out of character. He is held to be a person of good character by other members of his community. He has expressed his remorse at an early point in time, within two days of the incident, when he made an appearance on television. His remorse has been obvious through his change of plea and his entering a plea of guilty today.

¶ 41 During the course of the reading of the victim impact statements, I had the opportunity, looking at counsel and looking at Mr. Bertuzzi, to see that he was obviously affected by those statements and being confronted directly with the effects that this has had, not only on Moore but on his close family. I accept as genuine that remorse.

¶ 42 I also accept that as a result of this incident, he has already paid a significant financial penalty, exceeding $500,000, for having been suspended for the rest of the season. Both he and his teammates lost a chance to move further on in the playoffs as a result of him not being able to play.

¶ 43 Finally, there is the issue of his present status. He is still under suspension and, as a result of that, has been denied an opportunity, which I am satisfied he would otherwise have had, to play hockey with Team Canada in the World Cup and perhaps to find other employment in other parts of the world in hockey much as many of his other teammates have.

¶ 44 So those are mitigating factors, and I do take them into account.

¶ 45 Now, it has been clear throughout there has been a consensus by counsel as what would likely be an appropriate sentence. It is sometimes referred to as a joint submission. As both counsel have adverted to, a joint submission is not binding on the court, but where such a submission has been put before the court, after having been thoroughly and thoughtfully addressed by counsel, a court should be prepared to give considerable weight to those submissions, unless there is some strong and obvious reason to depart from them.

¶ 46 In the present case the sentence submission of a conditional discharge would not be inappropriate.

¶ 47 The test that I must apply is the test set out in a case called Fallofield, (1973) 13 C.C.C. (2d) 450, which counsel have referred to. The first test is whether it would be in Mr. Bertuzzi's interest that he receive a discharge. Given his age, the absence of a criminal record, the support he has in the community and his position of respect in the community, and as well his chosen occupation which may require international travel, I am satisfied that it would clearly be in his best interest that he receive a discharge.

¶ 48 The more difficult aspect is that of the second prong, which is whether the court can conclude it would not be contrary to the public interest that he receive a discharge. The public interest encompasses a number of things, including Steve Moore and his family. Nothing that this court says today should countenance violence of this nature, which can result in the tragic results that have occurred from this. It is clear that this has had a wide-ranging effect on Steve Moore and his family. I am mindful of that. I have listened carefully to the victim impact statements, which are in many respects heart wrenching and show a Canadian family whose Canadian dream may have been tarnished.

¶ 49 I am also mindful that in imposing sentence the court is not looking only at deterring Mr. Bertuzzi from doing this again, but is also looking at other principles of sentence, such as deterrence to other young men, and in particular other young men playing hockey at such a high level as the National Hockey League.

¶ 50 Already there have been some public suggestions, use of terms such as "slap on the wrist". Anybody who sat through these proceedings today and anyone who has had the opportunity of observing these proceedings today cannot leave this courtroom with a perception that someone has received a slap on the wrist, regardless of what the sentence is.

¶ 51 I am satisfied that when the reports of the case are made public, and that other hockey players see the potential effects that they will be deterred by the process itself: by the laying of the charge, by the public notoriety attracted by the charge, by the incredible disruption of one's personal life who is the subject of the charge, and then by the significant financial consequences which already have flowed as a result of the charge. So the issue of individual deterrence has been met, and general deterrence can be addressed, were a discharge to be granted.

¶ 52 The issue of denunciation is clear; again, addressed by the bringing of the charge.

¶ 53 Whilst recognizing the seriousness of the impact to the complainant and to an extent by Mr. Bertuzzi and weighing all of the factors that I have raised in the balance, I have concluded that the imposition of a discharge in this case would not be contrary to the public interest. From the cases that have been cited, other courts have come to a similar decision in not dissimilar circumstances.

¶ 54 In the result, Mr. Bertuzzi, the sentence that I impose in this case is indeed a conditional discharge.

¶ 55 The conditions of the discharge will be as follows: for a period of one year you will be bound by a probation order with the following terms.

¶ 56 You will keep the peace and be of good behaviour.

¶ 57 You will appear before the court when required to do so by the court, and you will notify the court or your probation officer in advance of any change of name or address and promptly notify the court or your probation officer of any change of employment or occupation.

¶ 58 I pause here to say that these are statutory terms that are included and required to be included in all probation orders.

¶ 59 You will not play in any hockey game or any other sporting activity, professional or otherwise, in which Steve Moore is a participant.

¶ 60 You will report to a probation officer at 275 East Cordova Street in Vancouver, British Columbia, within two working days, and thereafter when required to do so by the probation officer and in the manner directed by the probation officer.

¶ 61 During the first ten months of this order, you will perform 80 hours of community work service to the satisfaction of your probation officer, of which forty hours will be performed at Canuck Place Children's Hospice or at McDonald House or a similar institution, at the direction of and with the location and times to be directed by your probation officer. Twenty hours will be performed in the downtown eastside of the City of Vancouver, British Columbia, with the location and times to be directed by your probation officer, and twenty hours will be performed at a senior citizens' home or institution located within the Lower Mainland of Vancouver, British Columbia, and with the location and times to be directed by the probation officer.

¶ 62 Finally, should your residency or employment cease to be in British Columbia, either you or your probation officer may make an application to vary the terms of the community work service portion of the order.

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¶ 68 There will be a victim fine surcharge in this case of $500. I am satisfied, given Mr. Bertuzzi's occupation and so on, that he has an ability to pay that. Two weeks time to pay...

[Booche]

". Both he and his teammates lost a chance to move further on in the playoffs as a result of him not being able to play."

I find that so bizarre. I dont know why, but it seems out of place to me. We are talking about the penalties and punishment that Bertuzzi has already received, but bringing up the team as a whole is causing me confusion.

Reggie Dunlop: You cheap son of a bitch, are you crazy? Those guys are retards!

McGrath: I got a good deal on those boys. The scout said they showed a lot of promise.

Reggie Dunlop: They brought their fu¢king TOYS with 'em!

McGrath: I'd rather have 'em playing with their toys than playing with themselves.

Reggie Dunlop: They're too dumb to play with themselves!