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Wednesday, December 22, 2004
Bertuzzi's case didn't belong in court

By Scott Burnside
Special to

What a tawdry Christmas pageant this turned out to be.

In their plea deal with Vancouver Canucks forward Todd Bertuzzi, prosecutors in British Columbia made a ham-handed effort at sweeping something distasteful under the Christmas rug -- and the rug still has a handful of unpleasant lumps that simply won't go away.

In exchange for pleading guilty to assault causing bodily harm, the power forward received a conditional discharge, which will ultimately see his criminal record wiped clean in spite of his thuggish, blindsided attack on Colorado's Steve Moore last March.

It took prosecutors in the British Columbia attorney general's office 108 days to lay a charge against Bertuzzi. Had the case been heard by the province's Supreme Court, the charge could have carried a maximum 10-year prison sentence. The penalty at the lower, provincial court -- where Bertuzzi's case was resolved -- carried a maximum 18-month term.

Now, almost six months to the day after charges were filed, prosecutors have used the plea deal to slink out the back door, reinforcing the widespread view that this matter had no business in the courts to begin with.

Prosecuting attorney Garth Loeppky told reporters after Wednesday's proceedings that they were unable to prove beyond a reasonable doubt that Bertuzzi's punch to Moore's head during the latter stages of a 9-2 Colorado win in Vancouver has had a long-term effect on Moore's career. Bertuzzi received a year's probation in which he is not allowed to play in a game against Moore, and he must also perform 80 hours of community service.

"If his career is over, the [British Columbia] Crown can't prove that," said Loeppky, who recommended the conditional discharge with no criminal record.

Moore, taken surprise by the plea agreement, had asked that sentencing be postponed until he can attend to give a victim impact statement in person. But judge Herb Weitzel ruled that having Moore's statement read into the court records would suffice.

Moore, 26 and a graduate of Harvard, asked that Bertuzzi be legally prevented from playing against him again.

"I have no desire to interact with him in any way," Moore wrote.

The fact the impact statement was given short shrift indicates the judge will follow the Crown's recommendation that Bertuzzi be given a conditional discharge. The fact local prosecutors sought to slam this plea deal through in the waning hours before the Christmas break, well in advance of a scheduled Jan. 17 trial, without allowing Moore to have his day in court as it were, merely reinforces the tawdry nature of these proceedings.

Moore's Toronto-based lawyer, Tim Danson, well-known throughout Canada for taking on victims' rights in some of the nation's biggest criminal cases, said he thought it was illegal for an agreement to be reached without Moore's input. Danson hired a Vancouver lawyer to ask for the sentencing portion of the case to be held over until Moore could be present.

Still, it would have been highly unusual for a judge to stray from the sentencing suggestions agreed upon in a plea arrangement such as this. And so the charade continues.

Moore's agent, Larry Kelly, and Danson have both indicated Moore has not yet recovered from the attack, which left him with three cracked vertebrae, muscle damage, post-concussion syndrome and other medical issues. Moore was released by the Avalanche at the end of the season, and his prospects for a future in hockey remain unknown at best, grim at worst.

Given the inherent failure of the Crown's case, one has to wonder if there was any motivation to charge Bertuzzi other than the attention such a charge would bring. This isn't uncharted territory for British Columbia lawmakers.

Four years ago, this same provincial legal body charged longtime NHL tough guy Marty McSorley with assault with a weapon after he clubbed Donald Brashear in the head on the same Vancouver ice surface. A judge gave McSorley an 18-month conditional discharge after finding him guilty.

Then to what end was Bertuzzi charged and then essentially allowed to go free? What possible lesson can be gleaned from Wednesday's outcome?

If the victims in this case are many -- from truth and justice to Moore, to the game and in some ways Bertuzzi himself -- perhaps the lone victor is the National Hockey League. The NHL and commissioner Gary Bettman were indeed right when they insisted the league would and could look after its own house as the best arbiter of right and wrong, of crime and punishment.

Former Vancouver general manager Brian Burke, a lawyer by trade, has consistently maintained that this case should never have gone before the courts. At the time of the incident, longtime criminal lawyer and hockey agent Patrick Ducharme agreed with Burke. He told that if the courts were going to bring the legal standards of society to bear in the nation's hockey rinks, they must do so every night, in every rink, to make sure the law is applied evenly.

Make no mistake -- Bertuzzi's punishment was swift and harsh. Suspended for the final 20 games of the NHL's regular season and the playoffs and with no guarantee that he will able to play whenever the game resumes (Bertuzzi must apply for reinstatement and then meet with Bettman to rejoin the league), Bertuzzi has paid a stiff price for his folly.

He forfeited $501,926.39 in salary. As for the impact his absence had on the Canucks' playoff hopes, it's impossible to say with any certainty. But given that they lost in overtime in a seventh game to the Calgary Flames, who advanced to the seventh game of the Stanley Cup finals, it's entirely possible that Bertuzzi's cowardly act cost his team literally millions of dollars in playoff revenues and perhaps even a Stanley Cup championship.

On a personal level, those close to Bertuzzi say he has also paid a heavy price with the shame of the attack.

Some felt a public trial would have shone a light on the game's dirty secrets, those of backwoods justice and bounties and the bloodlust for revenge. But even if this had gone to trial, truths would have been twisted or ignored or forgotten in the same way that truth is often sacrificed when police are called to testify against each other or doctors or lawyers or any other closed society is forced to open its secret doors to the world reluctantly.

Those waiting for that kind of public airing of hockey's dirty laundry would do well to wait for Moore's civil suit. Although the Crown could not prove it, the suit is almost certain because Moore has yet to recover from his injuries and may never play professional hockey again.

Scott Burnside is a freelance writer based in Atlanta and is a frequent contributor to