Stay Away from the Grey: Rethinking How Courts Should Approach the Issue of Consent in Sports

By: John Glenn

As entertaining as sports can be, it comes as no surprise that the world of sports can be gruesome and violent. Recent events illustrate this reality. In the summer of 2025, two Japanese boxers, Shigetoshi Kotari and Hiromasa Urakawa, died from brain injuries they sustained after competing on the same fight card in Tokyo, Japan. Likewise, hockey player Adam Johnson tragically died after his neck was cut by an opposing player’s skate blade during a game. Of course, this toughness and violence can be ingrained in sports culture, but what complications arise when it intersects with criminal liability? In a subsequent blog post, I discussed the idea of balancing fairness towards athletes in the context of “standards of proof.” In this blog post, I will instead look at the issue of balancing the violent nature of sports with criminal liability and the implications that may arise from it.

Implied Consent in the Sports Arena

Before we dive into this grey intersection between the sports arena and the criminal world, we must first understand the basic principle of what constitutes a crime. In Canada, “the Crown must prove two elements for an accused to be found guilty of a criminal offence: the actus reus (the guilty act or wrongful deed), and mens rea (the guilty mind or criminal intent).”^[i] Put simply, the actus reus of a crime refers to the criminal act done by the accused.^[ii] The mens rea, on the other hand, refers to the fault or mental element of the crime.^[iii] These principles are essential to all true crimes, such as assaultive offences in sports.

However, the defence of consent can be used as a defense to crimes such as Assault. ^[iv] Generally, “[a]ssaultive offences require an absence of consent before they are criminal.”^[v] However, in contact sports such as American football, basketball, soccer, hockey, and so on, athletes are subject to “implied consent.” That is, normally, “a person cannot consent to an assault that intends to cause bodily harm, [but] there is an exception to this for sports where the conduct is part of the norms of the particular sport.”^[vi] The purpose of the implied consent doctrine is to “not over-criminalize certain actions.”^[vii] However, an individual’s actions must be “strictly limited to conduct which is consistent with the purpose and rationale underlying the policy basis for the consent.”^[viii] When applying this specifically to sports, courts have established that “an athlete consents only to what is reasonable conduct from his or her opponent.”^[ix] The standard of care test in this realm strengthens this idea as it determines what “a reasonable competitor, in his place, do or not do.”^[x]

The Bad, the Good, and the Grey

There have been numerous instances where athletes have exceeded the reasonable threshold. However, it seems as though courts have struggled to tackle these issues consistently when dealing with issues concerning normative acts. The first two cases illustrate a “black and white” scenario, while the last delves into a “grey area.”

Beyond the Reasonable Norm - R v McSorley (2000)

In R v McSorley, NHL player Marty McSorley had slashed another player, Donald Brashear, with his own stick during a National Hockey League (NHL) game.^[xi] McSorley raised his stick at Brashear and proceeded to swing it like a baseball bat, striking Brashear in the side of the head.^[xii] The force of the hit was so great that it sent Brashear straight onto the ice.^[xiii] Brashear suffered a grand mal seizure and a grade three concussion as a result of the incident.^[xiv]The courts deemed McSorley’s actions unnecessary and unacceptable.^[xv] The court noted that, as an athlete, Brashear consented to contact that is normally associated with the sport of hockey.^[xvi] However, this does not include being violently hit by an action that exceeded the norm of conduct.^[xvii] Although the elements of roughness and hard play are undoubtedly part of the sport, the NHL would not consider McSorley’s actions to fall within that threshold.^[xviii]Therefore, McSorley was found guilty of assault.^[xix]

When the Unacceptable Becomes Acceptable - Regina v Maki (1970)

Similar to McSorley, the case of Regina v Maki also happened in the NHL context. Here, players Green, from the Boston Bruins, and Maki, from the St. Louis Blues, collided with each other during an exhibition game.^[xx] After this collision, Green then proceeded to punch Maki, which led to Maki’s mouth being injured.^[xxi] The confrontation then escalated when Green struck Maki with his stick.^[xxii] Green then made another gesture that indicated he was going to strike Maki again; however, Maki retaliated by striking Green with his stick, which caused serious injury.^[xxiii] The court here deemed Maki’s actions justifiable, considering the circumstances at play.^[xxiv] Green was viewed as the aggressor in this situation, and although using a hockey stick as a weapon would not be considered normative in the context of hockey, Maki acted in self-defence.^[xxv]

Questioning the Norm? - R v Cey (1989)

Here, the victim was cross-checked into the boards by the accused during an amateur hockey game.^[xxvi]Evidence showed that the hit was done with great force from behind, resulting in a concussion and whiplash to the victim.^[xxvii] Although the action consisted only of a hard check, its acceptability was re-examined. On appeal, the court here considered whether the act in question was the type that a hockey player consents to when playing the sport.^[xxviii] It is noted that some actions can be seen as so dangerous and violent that they would make an athlete truly question if that is what they consented to.^[xxix] The check here was enough to warrant a new trial because of its “violent nature”.

The “Grey Area”

As illustrated in Cey, there are instances when even normative actions in sports come into legal criticism. This is what I deem to be the “grey area”. In my view, the most difficult aspect of operating in this grey area is balancing criminal liability with the culture of rough play in sports. Of course, the doctrine of implied consent in sports must remain central to cases like this. After all, I wouldn’t want to get a baseball swung at with a hockey stick while playing hockey, or clotheslined during a basketball game, or get held in a chokehold during a football game. As an athlete myself, I wish to be purely subject to the normative acts in the sport I am partaking in and to be protected from the acts that are beyond what is acceptable.

Today, courts appear to follow a more structured framework that courts abide by when considering these types of questions that wasn’t present during the Cey trial. The court in R v Barnes lays out these factors: “The type of the sport, the level at which it is played, the nature of the act, the degree of force used, the extent of the risk of injury, the state of mind of the defendant are all likely to be relevant in determining whether the defendant's actions go beyond the threshold.”^[xxx]

Importantly, courts have seemingly adopted this framework and have even gone as far as to acknowledge that things can and will happen in the heat of the moment. Notably, this was noted in R. v. Adamiec, where the accused kicked the complainant in the hand during an MMSL soccer match.^[xxxi] The complainant suffered injuries as a result of the kick.^[xxxii] The accused defended his actions by emphasizing that soccer is a contact sport where such occurrences are part of the sport's culture.^[xxxiii] Upon further review of the event in question, the accused was acquitted, as the court recognized that actions like this are often a natural consequence of the heat of the match.^[xxxiv]

Regardless of these developments, many cases will fall into this grey area, and the trier of fact will ultimately have to decide where that case falls.^[xxxv] Unfortunately, I do not believe that all cases will have the same fortunate outcome as Adamiec. More likely than not, there will be more cases like Cey, that seemingly misinterpret otherwise legal rough play as a violent act or intense passion as malicious intent. In my view, this may become problematic from a cultural standpoint. A common factor among most of these team sports is the physicality they entail, driven by the love and respect for the sport and the athletes who play it. But if athletes face the fear of being held criminally liable or, at the very least, facing the stress of standing on trial for simply being too passionate, is it worth it? Ruling on this grey area may do more damage than good, as it could sweep in athletes who play within the threshold and are morally innocent. Perhaps athletes should simply be allowed to play within the consensual confines of their respective sports, and leaving this “grey area” alone altogether should be considered.

Image Description: Two hockey players face off on the ice, their intense expressions captured in an illustrative art style. Behind them, the scales of justice symbolically weigh their competition, blending sportsmanship with a sense of fairness and balance.

End Notes

^[i] R. v. McIntyre, 2006 ABPC 184 (CanLII) at para 18, online: https://canlii.ca/t/1p0j6.  

^[ii] Brandon Trask, Criminal Law Class 2, Lecture PowerPoint (University of Manitoba, Faculty of Law, 2025) at 21.

^[iii] Ibid.

^[iv] Brandon Trask, Criminal Law Class 2, Lecture PowerPoint (University of Manitoba, Faculty of Law, 2025) at 23.

^[v] Peter Dostal, “Consent to Physical Contact” (last updated January 2016), online:criminalnotebook.ca/index.php/Consent_to_Physical_Contact [perma.cc/NU25-52CL].

^[vi] Ibid.

^[vii] Ibid.

^[viii] R v A.E., 2000 CanLII 16823 (ON CA) at para 33, online: https://canlii.ca/t/1fb9p.

^[ix] Forestieri v Urban Recreation Ltd, 2015 BCSC 249 at para 42, online: https://canlii.ca/t/ggdk1.

^[x] Unruh (Guardian of) v Webber, 1994 CanLII 3272 (BC CA) at para 29, online: https://canlii.ca/t/1dcf0.  

^[xi] R v McSorley, 2000 BCJ 116 (CanLII) at para 1, online: https://canlii.ca/t/5l69.

^[xii] Ibid at para 53.

^[xiii] Ibid at para 59.

^[xiv] Ibid.

^[xv] Ibid at para 102.

^[xvi] Ibid at para 21.

^[xvii] Ibid at para 61.

^[xviii] Ibid at para 108.

^[xix] Ibid at para 109.

^[xx] Regina v. Maki, [1970] OJ 1607 at para 4.

^[xxi] Ibid.

^[xxii] Ibid at para 5.

^[xxiii] Ibid.

^[xxiv] Ibid at para 11.

^[xxv] Ibid at para 12.

^[xxvi] R v Cey, 1989 CanLII 283 (SK CA) at para. 3, online: https://canlii.ca/t/1pfmr.

^[xxvii] Ibid.

^[xxviii] Ibid at para. 5.

^[xxix] Ibid at para 27.

^[xxx] R v Barnes, [2004] All ER (D) 338 (Dec) [2004] EWCA Crim 3246 at para 15.

^[xxxi] R v Adamiec, 2013 MBQB 246 at para 9 (CanLII), online: https://canlii.ca/t/g1p2x.

^[xxxii] Ibid at para 10.

^[xxxiii] Ibid at para 31.

^[xxxiv] Ibid at para 5.

^[xxxv] Barnes, supra note xxx at para 16.