Making sense of some of the evidence in the Hockey Canada sexual assault trial
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WARNING: This article references sexual assault and may affect those who have experienced sexual violence or know someone impacted by it.
The sexual assault trial of five players who were on Canada's 2018 world junior hockey team isn't just being followed closely in sports circles and by advocates against gender-based violence.
The legal community is also watching the proceedings, where there have been many dramatic developments since they began in late April in London, Ont.
The accused men — who all at one time had NHL careers — are Cal Foote, Dillon Dubé, Alex Formenton, Carter Hart and Michael McLeod. All have pleaded not guilty. The charges stem from allegations by the complainant, E.M., and their time at a London hotel in June 2018 following a Hockey Canada gala to celebrate the hockey team's world title.
CBC News spoke to three lawyers who are not involved in the case but are closely watching it.
"Every episode of this trial is jam packed with legal drama," said Nick Cake, a London-based criminal lawyer and former Crown.
Since the trial began, there has been a mistrial, followed four weeks later by a second jury being discharged as the case shifted to being heard by Superior Court Justice Maria Carroccia alone. There have also been numerous evidentiary applications and arguments in voir dires, or trials within a trial.
"For me, it's really a love of the law. I think there are very interesting issues that have arisen," said London-based criminal defence lawyer Sam Puchala, who frequently slips into the courtroom to watch the world junior proceedings.
"These are some of our colleagues in the defence bar who are very notorious. They have very good techniques, and so it's just been a pleasure to watch but also learn. So I'm learning things every day in this trial as well."
Keeping on top of the proceedings from Vancouver, Sarah Leamon, a defence lawyer and prosecutor, says, "It's a very unusual trial given that we have five different co-accused all on trial.
"Not only that, but there's also a great deal of interest given the fact that this is a Hockey Canada issue," Leamon said.
(Hockey Canada hosted the London gala for the world junior team in 2018, and has also faced criticism over eventually settling a civil lawsuit by the complainant, whose identity is protected under a standard publication ban. During this trial, defence counsel for the accused have also noted Hockey Canada settled the suit without communicating with or seeking the consent of the players.)
There has also been a preponderance of evidence.
The exhibits shown in court include surveillance footage from a bar, photos of a hotel room, the phones of hockey players, text messages and even a pair of stilettos.
In one memorable moment during cross-examination, Julianna Greenspan, who represents Foote, hoisted a pair of stilettos into the air. They were, she said, the same make as the ones worn by E.M. Greenspan's questioning revealed the shoes — with long, thin high heels — were difficult to put on, and the lawyer used them as part of her arguments that E.M. never actually was wearing them when she tried to leave the room. Greenspan suggested it was because she never intended to leave.
A photo of E.M.'s shoes was also entered into evidence.
Here are more thoughts from Cake, Puchala and Leamon, focusing on how some of the evidence/exhibits may play into the trial.
The '3 way' text
One of the first exhibits the Crown put forward was a screenshot of a text from McLeod that timestamped 2:10 a.m. on June 19, 2018. Sent after McLeod and E.M. left Jack's bar and had sex in Room 209 at the Delta hotel (court heard the first time they had sex was consensual), the text appears to invite teammates to his room for a "3 way."
" Without any context, it's just one small piece of the puzzle," Cake says of that text. "I don't think that this particular piece of evidence does a whole heck of a lot because all it does is explain what we already know, that there were a lot of men in that room with one woman and the allegations are that something happened."
Leaman said it needs to be viewed more as narrative evidence — which is evidence that helps tell the story.
"We know that this message was sent, and we know who sent it, what time they sent it. But again, the context, as [Cake] has pointed out, it needs to be filled in."
Puchala said the message helps support the Crown's narrative of how the night unfolded.
"It really is just something that leads to how it begins in a concrete way so that you know there can't be any sort of denial about this message being sent."
Puchala said the text inviting players to the room for a "3 way" doesn't really serve as evidence of consent or lack thereof even if E.M. consented to the text being sent.
"That's not what her evidence is, that she wanted a three-way, but this is really suggesting something that isn't even what ends up happening in terms of the allegations."
The 'consent videos'
The trial also saw two videos of E.M. that were taken from McLeod's phone.
One video is timestamped 3:25 a.m. In it, McLeod is heard saying: "You're OK with this?" E.M. responds: "I'm OK."
The next video is timestamped 4:26 a.m. A male voice is heard saying: "It was all consensual?" E.M. is heard replying: "It was all consensual. Are you recording me? K, good. You are so paranoid. Holy. I enjoyed it. It was fine. I'm so sober — that's why I can't do this right now."
" I've had a lot of members of the public ask me, why is it that we're even coming to a trial if there are videos that confirm her consent?" Puchala said.
"I know lawyers have spoken up about this before, that just because a video is recorded of you saying that you were fine with something that happened, doesn't mean that you are consenting at the time of the act."
Puchala has watched the videos several times in court. One thing she says Carroccia will have to take into account is E.M.'s demeanour, particularly in the second video.
"Some could view that as very skittish, right? That she wants to get out of there. So I think it really comes down to the analysis," Puchala said. In the first video, E.M. appears to be wiping her eyes. She has testified to weeping at times in the night.
"This will be up to Justice Carroccia now that she is the trier of fact. She is going to rewatch that video many, many times, and that is going to be for her to determine in weighing the complainant's credibility and reliability."
Leaman suggests the fact the videos even exist raises questions useful to the Crown.
" Why would somebody feel the need to get a consent video after they've engaged in what they believe to be consensual sexual activity with an individual?"
Because, under Canadian law, consent has to occur at the time of the sexual activity, Leaman said she would find defending the videos problematic.
"We could make the argument, of course, that this is consent and it was valid consent, and this is documenting the valid consent that was obtained at the time. It just seems unusual."
Cake pushed back on Leaman's assessment.
"If you're wearing a world juniors championship ring, you're on the verge of a 10-year, $12.5-million contract to play in the professional hockey association that dominates North America, and you've just engaged in sexual activity," Cake said.
'Isn't there a part of you that might think, 'You know what, I want to protect myself from this exact situation or from a potential civil lawsuit. And so I'm going to grab this video.' That's potentially one of the ways that I see it."
Texting between McLeod and E.M.
McLeod found E.M. on Instagram a day after the alleged assaults and the two started texting.
"I think text messages are always useful in terms of framing the evidence that the parties give," Puchala said.
She sees several different ways the Crown and the defence teams could interpret the exchange.
"When E.M. says, 'I was really drunk, didn't feel good about it at all after,' I think the word 'after' is interesting because of course not feeling good, or feeling shame or disgust even after an otherwise consensual encounter does not amount of sexual assault," Puchala said.
"When she says, 'But I'm not trying to get anyone in trouble,' that could be true, even if there's a sexual assault. So, even if she was not consenting, and lots of sexual assault victims do not want accused persons to get into trouble."
Puchala said the texts corroborate E.M.'s testimony that the initial encounter with McLeod was consensual and "'it was everyone else after that I wasn't expecting."
"So, again, what exactly was it that you were not expecting?" Puchala said, adding that "needs to be a determination from Justice Carroccia."
Puchala then zeroed in on E.M.'s line "just felt like I was being made fun of and taken advantage of."
"Being 'made fun of' is not a crime," Puchala said. "But if it's really being taken advantage of, 'I did not consent to these other men coming into the room and engaging in the behaviours that they did,' that's a whole other story."
Leaman zeroed in on the text in which E.M. tells McLeod she "didn't feel good about it at all after."
"You can have buyer's remorse, to put it that way, after a sexual encounter that was consensual at the time, but now you look back and you think, 'Oh, I really wish I hadn't done that,'" Leaman said.
"That does not vitiate the consent that was given at the time. And this may also speak to the defence that I expect these young men will likely mount."
WATCH | WARNING: This video contains graphic content: Crown questions complainant E.M.:
E.M. grilled again at Hockey Canada trial as cross-examination wraps
19 days ago
Duration 1:54
WARNING: Video contains disturbing details | The Hockey Canada trial complainant, known only as E.M., was again questioned by the defence over her drinking and her account of her alleged sexual assaults, as the defence wrapped seven gruelling days of cross-examination at the sexual assault trial of five former junior hockey players.
Leaman was also struck by the manner in which McLeod texted E.M.
"He's being very, I think, you know, firm in instructing her to straighten things out right now," Leamon said.
" When you look at what MacLeod's doing here, I think that he's incredibly pushy," Cake said. "I mean, the texts started at 10:51 in the morning. And they go, sure, until 7:40.
"You can see that E.M. is like, 'Hey, I can't talk right now, I'm at work. I'm sorry. I'm unavailable.' And he's like, 'Are you going to fix this? Are you going to do it today? What are you gonna say to the police?'" Cake said.
"I think that these text messages are a fantastic way to frame what obviously the Crown would be pushing as the power dynamic inside that hotel room."
"Mr. McLeod comes across as somebody who is sophisticated enough to know he's in some trouble and he's trying to get himself out of it," Leaman said of the text exchange. "And he might just be papering this conversation with things that may assist him later. So that's also a possibility."
Puchala said Carroccia will have to view these messages within the context of all the other evidence.
"He [McLeod] ends it off with, 'I appreciate you telling the truth. Thank you all the best.' So is it, as [Leamon] was saying, to try to paper the file to make it look a certain way or is it genuinely, 'Oh phew we agree … that it was a mistake.'"
The players' group chat
On June 26, 2018, as they learned Hockey Canada was starting an investigation, the players who were in Room 209 that night began a group chat. The Crown has suggested there was collusion, but McLeod tells other players in the group chat that they need to tell the truth.
"When I read through this group chat — it's just so difficult to determine what's going on here," Leaman said.
"Are these guys getting together to collude, to create a narrative that assists them because they know they've done something that's questionable, if not just wrong? Or is this a situation where they're concerned about something that was consensual and they felt it was consensual at the time, but now they're looking back and they're a little bit worried?"
Puchala said: "You have young men here that are sort of trying to grapple with what's going on and it doesn't necessarily seem like they really think that it's going to be sort of a criminal affair.
"It's really, I think they're nervous about dealing with their families and with Hockey Canada, so in these messages, there's a lot a lot going on.
"It has to be analyzed," said Puchala, who noted Carroccia has to think about these exchanges without having heard from many of the players who were in the group chat.
"If there's uncertainty about something, like, it can look bad," Puchala said, but pointed out the judge will apply a standard of reasonable doubt that is very high.
"Any sort of question about that lack of certainty usually favours the defence."
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