Josh Gauthier should not be found guilty of aggravated assault for an incident in which he injured another soccer player during a recreational league game three years ago, his attorney argued Thursday.
“My client is not guilty, morally, legally, in any way of this offence,” Don Orazietti said on the final day of the 39-year-old’s trial.
“He is innocent.”
What happened on July 8, 2019, according to all witnesses, was the result of an aggressive reflex act, he told Superior Court Judge Edward Gareau.
It was a reaction to a vigorous and illegal check by Adam Erickson as the two players battled for control of the ball, he said.
Prosecutor Matthew Caputo countered that no witnesses said the action was involuntary or reactive – all said it was quick.
To describe Gauthier punching the plaintiff squarely in the eye as a knee-jerk act is “so unreasonable that it doesn’t look like reality.”
The assistant crown attorney said “it was a purely physical act caused by passion”, asking the court to find Gauthier guilty of the charge.
Orazietti called the case troubling.
The facts were there to justify the police bringing the charge, but as she progressed through the justice system, there had been pretrials and, in the end, the Crown had always chosen to prosecute the case. accusation, he said.
There are structures built into the system because of Canada’s history of wrongful convictions, the veteran defense attorney said.
At each stage, the courts said the prosecution should be challenged if there were any rifts in the evidence, Orazietti said.
“Courts have declared that everyone has a duty to prevent wrongful convictions,” which he called “a scourge of our justice system.”
Erickson’s testimony is a “total aberration” and “my client ended up being a victim of those circumstances,” Orazietti said, adding that 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 testimony from five Crown witnesses – the plaintiff (Erickson) and two other members of the Jiggerz team, the arbitrator and a city police officer.
Gauthier, along with three players from his BDO team, testified for the defense about what happened that night at Strathclair Field.
Some witnesses described the game as competitive, aggressive, controversial and “chipy”, and BDO players suggested that Gauthier, one of the team’s best players, had been targeted by their opponents.
Erickson said Gauthier punched him in the face as they challenged each other, shoulder to shoulder, for the ball.
Gauthier turned around and hit him, the 30-year-old said.
The blow fractured the orbital bone in his right eye, his eye was swollen shut and the lacerations required 18 stitches.
He denied pushing Gauthier.
When Gauthier took position, he testified that his opponent pushed him from behind twice.
He said he turned around and in the blink of an eye it was over.
“I don’t believe I had a fist at the time. It happened so fast and he was near me. I was in absolute shock. I thought I pricked him in the eye .”
In his closing arguments, Caputo described the defendant’s evidence as unreliable.
Gauthier, who had played semi-professional football – an incredibly high level of play in a sport more aggressive than football – called the push the hardest blow he had ever received, Crown said.
The defendant, who weighed between 200 and 210 pounds at the time of the incident, had indicated that this hardest blow had been inflicted by “a 167-pound guy”.
Caputo said the question is whether Gauthier’s action was reflex or retaliatory.
The Crown admitted that the plaintiff’s testimony was different from that of other witnesses, but Erickson had received a blow to the head and was upset.
His memories aren’t as reliable as others, Caputo said.
Referee Mike Bruno – “the most independent witness” – said the match was very competitive but not aggressive.
“Nothing he saw until the punch was unexpected in football,” 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 defense is asking the court to set a dangerous precedent if a punch to the face, which is outside of normal football play, is considered a reflexive action, it said. he argued.
Gareau reserved his decision until August 10.