Probation for Rugby Player Convicted of Manslaughter: Canada

This blog post was submitted by PhD candidate Sinéad Ring, who is reading for a PhD under the supervision of Professor Caroline Fennell. She is a member of the Centre for Criminal Justice and Human Rights, UCC and a Government of Ireland Research Council for the Humanities and the Social Sciences Scholar.
The difficulties, both normative and practical, in proving criminal liability for assaults on the sports field is highlighted by a case currently in the news in Canada. An 18 year old man was sentenced on Monday by the Ontario Provincial Court to one year’s probation and 100 hours community service for the manslaughter of a rival player in a rugby tackle during a high school match in 2007. He was also ordered to undergo anger management counselling. The convicted man, who was 15 at the time of the offence, was initially charged with aggravated assault but the charges were changed to manslaughter when the victim, Manny Castillo, died of severe brain injuries four days after the incident.

The defendant was convicted in May following a two-week trial. The prosecution had argued that the defendant lifted Mr Castillo into the air, with his feet facing upwards and drove him head first into the ground. The defendant, who testified in his own defence, claimed that he reacted aggressively to get out of a headlock applied by Mr Castillo, and that he panicked because he could not breathe. He denied intentionally hurting Mr Castillo and said he was unaware that he was injured when they both fell to the ground. He denied lifting him up or driving him head first into the ground. The trial heard from various witnesses, including players, coaches, the referee, parents and rugby experts who gave conflicting accounts of what they saw.

The trial judge, Justice Bruce Duncan, found that the defendant wrapped his arms around the victim’s legs while Mr. Castillo had his upper body over the defendant’s back. The victim was lifted off the ground and propelled backwards. He was then “slammed” backward into the ground.

Rejecting the plea of self-defence, Duncan J found that the defendant was put in a headlock but only for a few brief seconds. Crucially, he held that there was a “hiatus” between the headlock and the assault. The headlock ended before the tackle and therefore ceased to have any legal significance. The trial judge further found that the defendant tackled Mr Castillo from some distance.

The defence also argued that Mr Castillo, who was 15 at the time, knew he was playing in a physical game and accepted the dangers of the contact sport when he entered the field to play. However the trial judge rejected the defence of implied consent. Duncan J held that the defendant intentionally applied force that was outside the rules of the game or any standard by which the game is played. The victim did not explicitly consent to that force, and no consent could be implied. (According to the Criminal Code of Canada (ss 295-269) an assault will not have been committed if the victim has consented, however consent in contact sports is not explicitly covered in the Code. The defendant can also seek to raise the defence of a reasonably held honest belief that the victim was consenting.) Convicting the defendant of manslaughter, Duncan J emphasised that athletes were not exempted from the requirements of the criminal law: “The playing field is not a criminal law-free zone. The laws of the land apply in the same was as they do elsewhere.”

The sentence imposed in this case can be viewed as relatively lenient, given that the maximum sentence for manslaughter is life. The defendant’s age is likely to have been a factor in sentencing; the maximum sentence for a minor convicted of manslaughter is 3 years. Nevertheless the lack of a custodial element is very unusual in a manslaughter case. Perhaps this reflects a certain degree of mitigation based on the context within which the offence was committed; a heated, highly competitive full body contact match between two teenage teams. Indeed, Duncan J considered that the finding of manslaughter was enough to find the offender accountable and to recognise the harm done.

Despite violence often being an intrinsic feature of sporting events, incidents that result in serious harm or death rarely give rise to criminal prosecutions. Instead, sporting governing bodies usually take responsibility for imposing fines and sanctions on players. For example, when Mike Tyson bit off part of Evander Holyfield’s ear, he received a $3million fine and his boxing licence was rescinded. (Though this was revoked after one year). However, in Canada criminal prosecutions resulting from sporting incidents are becoming more common; in 2000 Martin James McSorley was convicted of assault with a dangerous weapon following an altercation with another player during a hockey game. McSorley received an 18 month conditional discharge in lieu of a custodial sentence. He was also suspended for one year by the National Hockey League.

Whether the Castillo case will provide a useful precedent in future prosecutions of sporting incidents is not clear. The importance placed by the trial judge on the “hiatus” between the headlock and the defendant’s tackle was critical to his rejection of the self-defence plea. Arguably this time gap was much more important than any evidence regarding the violence and the nature of the manoeuvre. However, the probative value of such evidence is relatively unusual; the pace of a hockey or a hurling game, for example, would make it extremely difficult for a court to retrospectively distinguish deliberate or criminally reckless acts from instinctive sporting reflexes. Furthermore, from a policy perspective, it is difficult to locate a normative basis for criminal fault in cases where young men are coached from an early age to be highly aggressive in sports that have violence at their core. Nevertheless, it would seem, in Canada at least, that violence in sport is increasingly coming within the ambit of the criminal justice system. Indeed, QUB lecturer Dr Jack Anderson’s recent book, The Legality of Boxing: A Punch Drunk Love? highlights the vulnerability of boxers to criminal prosecution and the problem of the lack of informed consent to boxing contracts. At the very least, more attention needs to be paid by coaches and sporting organisations to the regulation and enforcement of rules in order to prevent serious assaults and tragic deaths like that of Mr Castillo. After the sentencing hearing the Castillo family released their victim impact statement to the public. In particular, they placed blame on organised hockey and hockey coaches because in that game, players are not reprimanded when they continue to fight after the whistle has blown. The defendant played both sports.