Understanding Canadian Law Three-Book Bundle. Daniel J. Baum
beating stopped. F. did this at a point when she felt Virk had “had enough.”
(Moore 2000a)
Fighting Back: Students to the Rescue
Ninth-graders from Ontario’s Keswick High School were in a heated game of speed ball in the school gym when one of the players, angry and unprovoked, shouted at his opposite number, Jack Kang: “You fucking Chinese.” He then punched him in the mouth. Jack, of Korean descent and holder of a black belt in tae kwon do, responded with a punch that broke his assailant’s nose. (Jack’s father was a master of tae kwon do, and Jack himself taught children at his father’s studio.)
The assailant, bloodied, dropped to his knees. Jack tried to comfort him. Both boys apologized, but that was not the end of the matter. Police school resources officers laid an assault charge against Jack the morning after the fray. They did so without interviewing witnesses, though they were aware of the racial slur — a matter that they simply put aside.
Police visited the home of Jack’s assailant. Both the boy and his father said they didn’t want to press charges because they didn’t want to “ruin anyone’s life.” (Both boys were honour students with 90 percent averages.) Still, charges were laid. Further, the school principal suspended Jack and, in a letter, stated that he would recommend his expulsion from all schools in the region.
A meeting was arranged. Jack and his classmate were present. Apologies again were made and they shook hands. The principal cancelled his suspension order and expunged the suspension notice from Jack’s record. He also withdrew the recommendation that Jack be expelled from any regional high school, stating that the letter had been sent in error.
Student Response
Students at Keswick High School were aware of the incident and the discipline meted out. They responded by staging a walkout — four hundred students marched from the school protesting the criminal charge against Jack.
The student response got the attention of the media and, through it, the chief of police, Armand La Barge. He ordered another investigation under the direction of a senior hate crimes police unit. Thirty-five witnesses were interviewed. At a large media gathering called by La Barge, he stated that the initial investigation was not “as detailed as it could have or should have been.” He recommended to the Crown that the charge against Jack be dropped. It was an action that the police themselves, in law, could not take.
The Crown agreed with him, and in open court, the charge against Jack was dropped. At one point, Jack’s father, uneasy about the incident, thought of leaving the community. After the response of the students, and the reaction of the police and school, he decided to stay. He accepted the good wishes of the mayor who personally welcomed Jack’s family to the community.
Jack’s immediate community, at least in terms of the incident, was his school. His classmates were aware of the incident. They assessed the facts and acted quickly, and their action brought a peaceful and effective resolution. Jack and his classmate cannot be said to be friends. But it can be said that they are able to get along with each other (Friesen 2009a, 2009b; Swainson 2009).
Rugby: Bullying and Manslaughter
The rugby game on May 2007 between two Mississauga, Ontario, high schools was heated. Manny Castillo, age fifteen, was the captain of his team from Lorne Park Secondary School. There was real competition between Castillo and a player from the opposing school — a major junior hockey player with an Ontario Hockey League team who had ambitions for professional status. Words were exchanged.
At one point, Castillo’s opponent picked him up, flipped him, and drove him head-first into the ground. A referee testified that the opponent boasted that he had pile-driven Castillo as hard as he could. Castillo lay motionless on the ground. He died in hospital a few days later from head and spinal injuries.
Charged and Tried
Castillo’s opponent, whose identity could not be revealed under the Youth Criminal Justice Act, was charged and tried for manslaughter. Defence lawyers argued (1) self-defence, as Castillo had a choke-hold that the accused simply tried to break, and (2) that Castillo assumed the risk of injury when he became part of the game.
Ontario Justice Bruce Duncan heard the evidence and rejected the defences. He found the accused guilty of manslaughter. Players, he said, must obey the law and the codes for the conduct of games, including such contact sports as rugby. The response of the accused was in retaliation for the briefly held head-lock. Reading from a twenty-eight-page decision, Justice Duncan stated:
The playing field is not a criminal law free-zone. The laws of the land apply in the same way as they do elsewhere.… There was no justification in self-defence. Accordingly, the defendant committed an assault, an unlawful act. That unlawful act caused death. The defendant is therefore guilty of manslaughter.
The force applied by the defendant was not within the rules of the game.… Dangerous play inside or outside the rules is not acceptable.… The defendant intentionally applied force that was outside the rules of the game or any standard by which the game is played. Manny did not explicitly consent to that force, and I am satisfied beyond any doubt that no such consent can be implied.
Sentenced
The Crown sought a two- to three-year sentence, opting not to seek an adult sentence. The defence sought a one-year probation.
On July 6, 2009, the Mississauga youth was sentenced to one year’s probation, anger management counselling, and one hundred hours of community service. Castillo’s father did not comment on the sentence but handed out copies of the victim impact statement he had delivered that morning in the hope that its message about organized sports would be communicated to the public. In the statement, he said, “I hope that organized sports, especially organized sports in schools, puts a no tolerance policy in place for violence and aggression in sports” (Cheney 2009; Mitchell 2009; Peat 2009; “Teen Guilty of Manslaughter in Rugby Death” 2009).
CHALLENGE QUESTION
The Effect of a Manslaughter Conviction on a School Sport
Q: Does the manslaughter conviction influence how rugby is to be played at the school level?
The rugby case was one of the Crown against a single person charged with violating the Criminal Code. The accused was found guilty. That was the end of the matter so far as the Crown’s case under the Criminal Code was concerned. But schools, players, and parents were left asking how the conviction would affect the sport at the school.
Kieran Crowley, Rugby Canada head coach, said he had never heard of a death in rugby play prior to the incident involving Manny Castillo. Indeed, Doug Crosse, spokesperson for Rugby Canada, added that the manslaughter conviction would “confirm a lot of incorrect suspicions about the game.” (The suggestion seemed to be that rugby might be seen as a game without rules.)
On the other hand, the verdict was seen by some as a way of realigning what should be the mark of acceptable athletic behaviour. Clayton Ruby, a lawyer recognized as a civil rights expert, said of the manslaughter conviction, “Some athletes have a skewed perception of acceptable behaviour. They think violence is part of sports, and these guys get away with it on a regular basis. A case like this serves notice” (Cheney 2009).
New Rules and Their Enforcement
Educational authorities who allow school athletic competitions and set the rules for play and their enforcement are apparently reviewing the conviction handed down by Justice Duncan. Al Wolch, a former coach and, at the time of his quoted comments, a superintendent with the Toronto District School Board, said the decision of Justice Duncan will result in “significant” policy review concerning school athletics:
We see incidents and injuries all the time — undercuts in basketball, kids running others to the boards in hockey and other episodes in football.… We have to look at educating better, but we also have to understand the people coaching are volunteers. Both have to go hand in hand or we may be better off not having certain sports.… We’re always reviewing regulations. As you look at danger, you need to make sure coaches, responsible for these students, are