Hockey Canada sexual assault trial is over; decision coming July 24
LONDON, Ont. – The Hockey Canada sexual assault trial has concluded after eight weeks of testimony, evidence and submissions, with a judge's decision to follow late next month.
Michael McLeod, Carter Hart, Alex Formenton, Dillon Dubé and Cal Foote are all charged with sexual assault after an alleged incident in June 2018 in which E.M. — whose identity is protected by a publication ban — has said she was sexually assaulted over the span of several hours in a London, Ont., hotel room. The players were in town for a Hockey Canada event celebrating their 2018 World Junior Championship victory.
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McLeod is also facing a second charge for 'being a party to the offense' for what the Crown has asserted was his role 'assisting and encouraging his teammates to engage sexually' with E.M.
All five players pleaded not guilty.
In closing submissions, Crown attorney Meaghan Cunningham took issue with the 'consent videos' filmed by McLeod as exculpatory evidence, arguing the verbal prompts by McLeod in the second video — beginning the video with 'Say it,' and subsequently interjecting 'What else? — illustrated that they were neither evidence of E.M. providing consent nor evidence of McLeod taking a reasonable step to ascertain consent.
Cunningham argued that the videos instead support E.M.'s testimony — that McLeod was 'hounding' her to say the activity was consensual, which E.M. said was not a reflection of how she felt at the time.
'She's simply agreeing with him when he's making it clear what he wants her to say,' Cunningham said.
Crown attorney Heather Donkers presented Justice Maria Carroccia with a path to conviction for each defendant. The Crown highlighted credibility and reliability issues with the accused and asked the court to find that E.M. did not have a choice so she could not have provided consent.
Additionally, Donkers detailed how none of the defendants took reasonable steps to ascertain consent, which the Crown argued demonstrated their 'recklessness' or 'willful blindness' on the consent issue.
The Crown incorporated case law demonstrating the need for 'greater care' exercised with those 'reasonable steps' in situations such as when the accused is unfamiliar with the complainant or the complainant is intoxicated or vulnerable. The Crown argued that all these caveats applied to the circumstances within Room 209 that night. (Dubé also admitted in his 2018 police interview that he was, at one point, holding a golf club, which represents an additional factor to the 'greater care' requirement with respect to his specific case, Donkers said.)
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Cunningham concluded the Crown's case by referring to a statement E.M. made near the end of her seven-day cross-examination, in which she described being objectified and laughed at.
'Literally, any one of those men could have stood up and said, this isn't right. And no one did. No one noticed that,' E.M. said, while being cross-examined by Julianna Greenspan. 'No one thought like that. They didn't want to think about if I was actually OK or if I was actually consenting.'
Cunningham said that the reason none of the players intervened was because of their 'willful blindness and recklessness.'
'No one thought like that,' she said. 'Because they were thinking in terms of rape myths and mistakes of law about what consent is and how it can be communicated.'
All five defense teams were given the chance to put forth final reply submissions and focused on a variety of aspects of the case.
David Humphrey, attorney for McLeod, argued that the Crown was manipulating evidence, distorting the timeline and jettisoning arguments that were inconsistent with their arguments.
Riaz Sayani, Hart's attorney, largely focused on what he argued was the Crown's misapplications of law, including invoking trauma principles for circular reasoning and 'bootstrapping' information to augment their case.
Hilary Dudding, attorney for Formenton, argued that myth-based stereotypes should not be applied to defense arguments just as the same as for Crown positions. She cautioned the judge against accepting false binary propositions and to instead allow for the possibility that a woman could be enthusiastic and consenting within the environment the defense describes without it being characterized as 'bizarre' or 'odd.'
Lisa Carnelos, attorney for Dubé, addressed the contact her client had with E.M.'s buttocks, calling it 'playful' and arguing that the 'Crown has not disproved that she was consenting.'
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'It was playful, possibly foreplay,' Carnelos said. 'And in no way looked to be harmful or with the intention to be abusive.'
Julianna Greenspan, who represents Foote, took aim at the Crown, criticizing what she said was an earlier suggestion that further evidence exists that was not permitted to be considered in court. Without a jury, those documents are available to the public. 'That was a factually wrong and unfair comment to make,' Greenspan said.
She also took issue with a slide shown earlier in the day that indicated there was 'no evidence from Callan Foote.' Had this still been a jury trial, Greenspan said, she would have called for mistrial, even at this late stage — calling the slide 'illegal.'
'It runs contrary to the Canada Evidence Act, which states failure of the accused to testify shall not be made the subject of comment by counsel for the prosecution,' Greenspan said.
She further suggested that the slide was purposefully included to influence the media.
'Everyone in this courtroom knows the attention in this case has garnered from the media and public,' Greenspan said. 'The Crown, I submit, has throughout this trial been preoccupied with litigating the public opinion through the media. This is an upsetting final example on behalf of my client.'
After the defense attorneys completed their final statements late Friday, Carroccia addressed the parties involved in the two-month proceedings.
'We've come the end of this long trial,' she said. 'Thank you all for the very professional manner in which you prosecuted this case, which we all know has garnered a lot of public attention.
'We will return on July the 24th for my decision and the accused will be present in person that day.'
Minutes later, court was adjourned. Smiling politely, the defense attorneys and the Crown shook hands, as the London courtroom emptied out.
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The facts now sit with Carroccia.
E.M. said that she met McLeod at Jack's, a popular bar in London, and after a night of drinking and dancing, left with him to have consensual sex with him at his hotel in the early-morning hours of June 19, 2018. E.M. said that after that sexual encounter, McLeod invited his teammates to his room to engage in sexual activity, without her knowledge or consent.
E.M. said that over the course of the night, she was pressured to perform a number of sexual acts with the players, including oral sex with McLeod, Hart and Dubé and vaginal sex with Formenton. She also said she was slapped on the buttocks and that Foote did the splits over her and grazed his genitals in her face. She described being spit on, slapped and asked to insert golf clubs and gold balls in her vagina.
The crux of the Crown's case hinges on consent. Canada has affirmative consent laws, meaning consent must be active and ongoing throughout each specific sexual act. The Crown contends that once men began arriving in the room, E.M. found herself in a 'highly stressful' and 'unpredictable' situation that caused her to feel fear. Naked, drunk, and in a room of eight to 10 men who were strangers to her, E.M. described feeling vulnerable and unsure what would happen if she did not do what they wanted. She detailed going on 'autopilot' — dissociating as a trauma response to get through the night.
The Crown argues that E.M. did not voluntarily consent to any of the specific sexual activity. The Crown does not dispute that E.M. may have been compliant, or even appearing eager to engage in sexual activity, but contends that she was acting out of fear of what would happen had she resisted.
The Crown emphatically denies the suggestion that she was the sexual aggressor or the one who encouraged McLeod to invite his teammates over to the hotel room for group sexual activity. Instead, the Crown suggests that McLeod was the 'architect' of the night and that when facing scrutiny and potential discipline over sexual assault allegations, the players colluded with one another to ensure they told the same story to investigators.
The defense's case centers around E.M.'s credibility, which all five legal teams have repeatedly questioned and sought to undermine. Attorneys for the accused say that E.M. was the instigator of the group sex, urging McLeod to invite his teammates back to the hotel room for a 'wild night.'
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The defense portrays E.M. as the initiator who was aggressively demanding sex, chirping the players and insulting them when they refused to take her up on her invitations. Multiple players testified this is what they remembered from that night.
The defense argues that she was an enthusiastic participant who regretted the encounter after the fact and fabricated a claim of sexual assault to save face with her boyfriend, her friends and family and to advance a civil lawsuit against Hockey Canada, which was resolved via an out-of-court settlement in 2022.
Defense attorneys say that she told a 'white lie' in the aftermath of the event that 'snowballed' into the current criminal case and that she has repeatedly tailored and shifted her narrative to remedy the case's deficiencies and to advance her own 'agenda.' They say that her previous statements and testimony have been riddled with inconsistencies and that she lied under oath.
The fate of the five players will linger for the next six weeks as Carroccia will decide on the charges and be tasked with explaining her decisions in written form. She has set July 24 as the date for that decision.
The Crown has a significant burden in a case like this. Prosecutors must prove each charge beyond a reasonable doubt to secure a conviction. That doesn't mean they must prove their case with certainty, but the standard is a high bar to clear.
Carroccia has sided with the defense on most of the substantive issues during proceedings, including the admissibility of key evidence, the Crown's attempt to cross-examine one of its key witnesses once that witness essentially turned hostile, and the very nature of the proceedings.
She has discharged two different juries — the first resulting in a mistrial, the second resulting in a bench trial. Both discharges followed allegations of improper conduct by one particular defense team. Both times, the Crown fought to preserve a jury.
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Carroccia intervened significantly more, and at times more pointedly, with the Crown on its arguments over the final days of the trial. One extended back-and-forth session between Carroccia and Cunningham on Thursday was contentious enough that Cunningham appeared exasperated, eventually abandoning her argument because she said she could tell Carroccia didn't find it persuasive.
On Friday, Carroccia seemed to imply that the Crown was using witness testimony of Brett Howden and Tyler Steenbergen selectively:
'I just find it interesting the way the Crown relies on the evidence, for instance, of Mr. Steenbergen and Mr. Howden and the way you're asking me to consider their evidence,' Carroccia said. 'Because effectively what you're saying is where it doesn't help the Crown, don't accept it — but where it helps the Crown, accept it.'
— The Athletic's Dan Robson contributed reporting remotely from Toronto.
(Photo by Nathan Denette / The Canadian Press via AP, File)
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