Closing arguments made in case of soccer game violence

Josh Gauthier shouldn't be convicted of aggravated assault for an incident where he injured another soccer player during a recreational league match three years ago, his lawyer argued Thursday.

"My client is not guilty, not morally, legally, in any way guilty of this offence," Don Orazietti said on the final day of the 39-year-old man's trial.

"He's innocent."

What occurred on July 8, 2019, according to every witness, resulted from an aggressive reflex action, he told Superior Court Justice Edward Gareau. 

It was a reaction to a vigorous, illegal check from Adam Erickson as the two players were competing to gain control of the ball, he said.

Prosecutor Matthew Caputo countered that no witness had said the action was involuntary or reactive - all indicated that it was quick.

Describing Gauthier punching the complainant squarely in the eye as a reflexive action is "so unreasonable that it does not have an air of reality."

The assistant Crown attorney said "it was a purely physical act provoked from passion," asking the court to find Gauthier guilty of the charge.

Orazietti called the case troubling.

The facts were there to justify the police laying the charge, but as it proceeded through the justice system there had been pretrials and in the end the Crown had still chosen to prosecute the charge, he said.

There are built-in structures in the system as the result of Canada's history of wrongful convictions, the veteran defence lawyer stated.

During every step, courts have said the prosecution should be challenging if there are any fractures in the evidence, Orazietti said.

"The courts have said everybody has the duty to prevent wrongful convictions," which he called the "bane of our justice system."

Erickson's evidence is a "total aberration," and "my client has ended up a victim of these circumstances," Orazietti said, adding the Crown has an ongoing duty to challenge throughout the process.

"The court should enter an acquittal," he said.

During the three-day trial, Gareau heard evidence from five Crown witnesses - the complainant (Erickson) and two other members of the Jiggerz team, the referee and a city police officer.

Gauthier, as well as three players on his BDO team, testified for the defence about what happened that evening at Strathclair Field.

Some witnesses described the game as competitive, aggressive, contentious and "chippy," and the BDO players suggested Gauthier, one of the team's best players, had been targetted by their opponents.

Erickson said Gauthier punched him in the face when they were challenging each other, shoulder to shoulder, for the ball.

Gauthier turned around and struck him, the 30-year-old said.

The blow fractured his right eye's orbital bone, his eye was swollen shut and the lacerations required 18 stitches.

He denied pushing Gauthier.

When Gauthier took the stand, he testified that his opponent pushed him from behind twice. 

He said he turned and in a blink of an eye it happened.

"I do not believe I had a fist at that time. It happened so fast and he was close to me. I was in absolute shock. I thought I had poked him in the eye."

In his closing submission, Caputo described the defendant's evidence as unreliable.

Gauthier, who had played semi-pro football - an incredibly high level of play in a sport more aggressive than soccer -  called the push the hardest hit he had ever received, the Crown said.

The defendant, who weighed 200 to 210 pounds at the time of the incident, had indicated this hardest hit had been delivered by "a 167-pound guy."

Caputo said the question is whether Gauthier's action was reflexive or retaliatory. 

The Crown conceded the complainant's evidence was different from other witnesses, but Erickson had received a hard blow to his head and was upset.

His memories are not as reliable as others, Caputo said.

Referee Mike Bruno - "the most independent witness"- said the game was very competitive but not aggressive.

"Nothing he saw until the punch was unexpected in soccer," the prosecutor said.

Gauthier, a star player, should have expected contact in the game and should have acted appropriately.  

The defendant committed aggravated assault and the defence is asking the court to set a dangerous precedent if a punch to a face, which is outside normal play in soccer, is considered a reflexive action, he argued. 

Gareau reserved his decision until Aug. 10.