Legal experts: Bertuzzi case complex
Canadian Press
6/24/2004
VANCOUVER (CP) - Everything was played out on videotape for potentially millions of viewers to see and judge: Todd Bertuzzi sucker-punching an opposing player and crashing down on top of him, leaving the opponent motionless on blood-stained ice.
Bertuzzi was charged with assault causing bodily harm Thursday, but suggestions the case is as clear-cut as those images is an over-simplification for what's sure to be a complex proceeding, say legal observers.
``It's not as simple as saying the person was hit, that's the end of it,'' said Michael Mulligan, a prominent defence lawyer in Victoria who has done Crown work.
It's been almost four months since Bertuzzi piled on top of the Colorado Avalanche's Steve Moore, leaving him with a broken neck, a concussion and other injuries.
There were 18,000 people at the March 8 game and millions more people throughout North America and Europe have seen the clip of the hit.
But the investigation extended well beyond GM Place.
Among the things that took time was the fact that some of the people police needed to talk to were Colorado Avalanche players who were not available in Vancouver.
``To suggest this has taken an inordinate amount of time to come to a conclusion I think overlooks the fact everyone, the public, wants the Crown to make a principled decision based upon the available evidence and not a decision that is made hastily,'' Crown spokesman Geoff Gaul said.
But, as in all cases where charges are laid, Mulligan said Crown prosecutors must decide two things before laying charges: is there a substantial likelihood of conviction and if so, is it in the public interest to do so.
It takes time for police to conduct interviews and to analyse the video tape of the hit. The Crown may have been waiting to see how Moore has recovered.
And also, Bertuzzi's lawyers may have made been allowed to make submissions to the Crown about why it might not be appropriate for charges to be laid.
Laying charges ``is a very significant decision. It's a person who has no criminal record. It's a major matter just to be charged. So it's appropriate that a special prosecutor fulfil their statutory obligation,'' Mulligan said.
Doctors said at the time of Moore's injury that it was not known when, or if, the native of Windsor, Ont., would play hockey again.
Bertuzzi's first court appearance is July 9, though only his lawyer need attend. Although Bertuzzi may enter a plea then, it's more likely his lawyer will ask for more time to go through the evidence that the Crown is required to disclose.
Assault causing bodily harm carries a maximum of 10 years in jail, but Mulligan said that's extremely remote for Bertuzzi. The maximum would be reserved for the worst offender with a long criminal record and no mitigating circumstances to his crime.
In fact, Mulligan said any jail time at all for Bertuzzi is unlikely.
``That's not really a sensible starting point for what's likely to happen.''
Instead, he said Bertuzzi will likely face anything from an absolute discharge, which carries no criminal record, to a conditional discharge, which only carries a record if the terms of the sentence are not met.
Probation, a fine or a conditional jail sentenced served in the community are other possibilities, Mulligan said.
Marty McSorley, the former NHL tough guy charged and convicted of assaulting then-Canuck Donald Brashear with a stick to the head, was given an 18-month conditional discharge.
That incident was also caught on videotape and replayed widely.
McSorley, who was at the end of his NHL career, never played in the league again.
His case will no doubt come to count in Bertuzzi's case.
As in the McSorley trial, any jury in a Bertuzzi trial will hear arguments about what level of violence hockey players consent to, said Mulligan.
``People consent to being body checked. It would also seem there's a consent to engage in fist fights.''
And that videotape doesn't necessarily doom Bertuzzi, he said.
``There's a lot to be considered there. It's not enough to say we've got this thing on videotape, that's the end of it...There would still be other issues.''
Cheers,
Aquaman