A B.C. judge in New Westminster says recreational athletes should be punished no differently than professionals for resorting to criminal levels of violence against their opponents.
In a decision that draws parallels to some of the bloodiest incidents in Canadian hockey history, B.C. provincial court Judge Danny Sudeyko handed a conditional discharge last week to a Lower Mainland soccer player who sucker punched a random member of an opposing team.
That puts Zoran Miletic in the dubious company of Todd Bertuzzi and Marty McSorley — two former NHL players who earned conditional discharges in B.C. courts for on-ice assaults.
As Sudeyko explained, it also puts Miletic in the middle of an ongoing legal debate over whether violence in a recreational setting should actually draw a harsher penalty — as the Crown contended — because players don't consent to the type of violence they might expect in the big leagues.
The judge made it clear he doesn't buy that logic.
"That, in effect, says because the victim expects some level of violence, the offender is entitled to the benefit of that expectation, even when the offender exceeds that level," Sudeyko said.
"Similarly, I fail to see how the lower expectations of violence in a non-professional league, even if true, should result in a greater penalty to the offender."
Miletic will be on probation for a year and must also do 50 hours community service.
'Greater need to deter'
Miletic punched the victim during a scrappy over-35 soccer game in New Westminster in September 2018. According to the facts laid out in the ruling, he came into the game in the second half after sitting out much of the first half because of a work-related back injury.
A player on Miletic's team fouled a member of the opposing team, and that led to jostling in a scrum that saw someone push Miletic from behind, causing him to fear that he had reinjured his back.
"It was as this scrum was starting to disperse that Mr. Miletic came from behind and the side of the victim, a member of the opposing team picked seemingly at random, and punched him in the face," Sudeyko wrote.
Miletic was expelled from the game and later charged with assault causing bodily harm. The victim suffered post-concussion symptoms that interfered with his life and affected his income.
The defence asked for a conditional discharge, meaning Miletic wouldn't have a criminal record after serving a period of probation. In arguing the case, lawyers cited the examples of Bertuzzi and McSorley.
But the Crown sought a suspended sentence, 18 months probation and 50 hours community service.
"They say that there is a distinction in those defence cases, in that the participants in a professional hockey context are expecting to have a certain level of violence perpetrated," Sudeyko wrote.
"They say there is a greater need to deter and denunciate the behaviour in this context."
'Real differences' between levels of play
Bertuzzi was a Vancouver Canuck when he attacked Steve Moore from behind in a 2004 hit that left the Colorado Avalanche player with three broken vertebrae, ending his career.
McSorley was an enforcer with the Boston Bruins when he struck then-Canuck Donald Brashear in the head with his stick in 2000.
Both those attacks occurred at the apparent urging of coaches in the midst of heated rivalries between teams. And in both cases, the judges noted that Bertuzzi and McSorley were remorseful and had suffered great public notoriety and personal costs.
"I am satisfied that when 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," wrote the judge who sentenced Bertuzzi.
But the Crown asked Sudekyo to consider instead a 2017 Ontario case in which a judge refused to give a conditional discharge to Jason Ashton, a goalie in a no-body-contact league who struck an opponent in the face with his stick, caving in the bottom row of his teeth.
In that case, Ontario court Judge Wayne Rabley also considered the divide between professional and recreational athletes, but he said professionals consent to "some violence."
"There are real differences between the two types of play and the athletes involved in them," Rabley wrote. "Therefore, when serious violence occurs in a recreational league, although a court should consider a discharge, when appropriate, these cases should not necessarily follow the principles for those in professional and semi-professional leagues."
He gave Ashton a 90-day conditional sentence to be served in the community.
'Cowardly' but 'reactive'
Sudeyko disagreed with the Ontario judge's approach.
He said that while soccer may be less bloody than hockey, it has "its own sense of violence."
And no matter what the level of play, conduct has to rise above a certain norm to rise to the level of assault.
"I fail to see how the expectations of a higher level of violence in a professional league, or the physical training and preparation level of the athletes, decreases the need for denunciation and deterrence when the level of violence norms are exceeded," the judge said.
Miletic had no criminal record and was praised by friends and family. He showed no remorse for the attack.
Sudeyko described the attack as "cowardly" but said it was "reactive in a moment of frustration and uncharacteristic" and as such, he shouldn't be treated any differently than a professional in the same situation.
"Therefore, I do not consider it as serious as the actions of either Mr. Bertuzzi, which were also premeditated, or of Mr. McSorley, which involved the use of a weapon," Sudeyko said.