Legal decision for the ‘Hockey Canada 5' won't come for weeks, but judgment can be rendered
LONDON, Ont. — As the highly publicized Hockey Canada sexual assault trial neared its end, defense attorney Megan Savard sought to dismiss a stereotype that she said unfairly hindered the accused.
'It is this insidious idea that hockey players, by virtue of the fact that they play closely together on a team in professional sports, naturally protect their own,' Savard said during her closing statement. 'Circle the wagon — form a perjury phalanx, so to speak.'
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Specifically, Savard was referring to the prosecution's allegation that her client, Carter Hart, had lied on the stand about what he could and could not recall about the night in London seven years ago that brought him and four of his former Canadian World Junior teammates back to this Southwestern Ontario city to face charges of sexual assault.
Hart was the only one of the accused to testify. The former Philadelphia Flyers goalie was poised, succinct and confident, unabashedly admitting that he was excited by the idea of having group sex with teammates when he read a text from Michael McLeod to a team group chat inviting them to room 209 at the Delta Armouries hotel for a 'three-way.'
That hotel — which rises from the castle-like remnants of a defunct military headquarters — is visible from the 14th floor windows of the Ontario Court of Justice, where the events of a June night in 2018 have played on repeat for the past two months.
Few details about that hot, hazy evening are fully remembered by the World Junior champions who were in that hotel room, beyond a shared recollection: The players were shocked and embarrassed by the sexual aggressor — a woman hungry for group sex, begging for it even. They were taunted and mocked when they wouldn't take her up on the offer. They responded with discomfort and apprehension to the orgiastic advances of the naked 20-year-old woman they surrounded.
That woman — known as E.M. because of a publication ban protecting her identity — is the only person who counters those claims, from the language described to her consent to the acts committed. Hart, McLeod, Alex Formenton, Dillon Dubé and Cal Foote sat in that courtroom because of what she said happened in that hotel room: that she was coerced into nonconsensual sex, smacked, spat on, humiliated and degraded over several hours.
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Despite the supposed embarrassment — 'shocked and stunned,' as McLeod told a police investigator — four of them admitted they willingly engaged in sexual activity with the woman. Three of them received oral sex with many of their teammates in the room looking on. One of them said he had vaginal intercourse with her in the bathroom because he was too bashful for a public display. Another did the splits over her as she laid on a sheet between the two hotel beds.
Now that the trial is over, a decision from Justice Maria Carroccia as to whether guilt was proven beyond a reasonable doubt is expected late next month.
Regardless of that outcome, the highly publicized trial has become a touchstone for perspectives on sexual assault, misogyny and consent. The 'she said, they said' nature of evidence has also dragged the insular and protective culture of hockey into an uncomfortable spotlight.
'People tend to remember memorable moments,' Savard said this week, as she defended her client's testimony — which directly conflicted with E.M.'s claims of what happened.
Hart recalled only the details that he said stayed with him through seven long years. Those memories, inarguably, worked to his benefit and that of his former teammates.
During her testimony and in seven withering days of cross-examination, E.M. recalled memorable things — like being goaded into sexual acts while surrounded by men she didn't know, being spit on and slapped painfully on the buttocks, and being encouraged to insert golf balls and golf clubs into her vagina.
But Hart's account of receiving oral sex from E.M. was an act of consensual negotiation, Savard later said, after turning down the vaginal sex he said she asked for. (Though, the Crown countered, he made no mention of any negotiations on E.M.'s end, or any discussion of her boundaries.)
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He did not see team captain Dubé slap E.M.'s buttocks, as Dubé is accused of doing. But he was right next to Foote as he straddled E.M. — jokingly and fully clothed, he said — as he did a half splits above her.
Similarly, the Crown's own witness, Tyler Steenbergen could recall only vague details about what occurred, though he sat feet away from the sexual acts that took place in that room. Steenbergen is not accused of wrongdoing, but did face scrutiny over his hazy recollection from skeptical Crown attorney Meaghan Cunningham.
Likewise, Brett Howden, another Crown witness not accused of wrongdoing, was hazy about what he recalled. But in a text message that was deemed inadmissible as evidence by Carroccia, Howden described Dubé slapping E.M.:
'Dude, I'm so happy I left when all that s— went down. Ha, ha,' Howden wrote to Taylor Raddysh. 'Man, when I was leaving, Duber was smacking this girl's ass so hard. It looked like it hurt so bad.'
And in a statement to Hockey Canada in 2022, Formenton described watching Foote enter the room, take off his pants and straddle E.M. in the splits, naked from the waist down.
Formenton described E.M.'s hand touching Foote's genitals, but didn't see anything beyond that. The whole incident lasted less than a minute, he told Hockey Canada's investigator Danielle Robitaille.
That statement was not heard in court because it is not admissible as evidence. It was excluded in a pre-trial motion — along with statements by McLeod and Dubé — when a judge found that Hockey Canada had coerced the players to give the statements by threatening lifetime bans from the organization if they did not cooperate with Robitaille.
As the defense attorneys laid out their arguments for reasonable doubt, the players were effectively portrayed as victims unfairly dragged back to London because of something that happened when they were mere 'boys.' Several times through the trial the defense complained about protestors taunting the players as they entered the courthouse.
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E.M. refused to take responsibility for her own actions, they said — though she repeatedly expressed regret for having gone home with McLeod and cheating on her boyfriend. What she refused to accept was that any other action that night was consensual.
And so, it was E.M.'s memory of that act alone against the 'boys.'
While she was cross-examined by attorneys for each of the accused, E.M. allowed that it was possible that the gaps in her memory could be colored in with unexpected behavior, including, as the defense repeatedly suggested, that E.M. said what the men claimed she said. But she consistently stressed that it didn't sound like something she'd say or do.
E.M.'s recollection of the incidents, the defense argued, was simply not credible, regardless of how memorable those acts would have been.
Legal liability requires the high bar of proof beyond a reasonable doubt. But in the measure of moral culpability there is less room for absolution.
Consider, from the players' perspective, the most generous explanation for that night is one in which the entirety of E.M's testimony is rejected.
In that version, the players went to a room where a lone woman laid naked after consensual sex with one of their teammates. That woman, surrounded by nearly a dozen players, by varying accounts, goaded them into sexual acts — despite their shock and apprehension. A sheet was laid on the ground. They received oral sex from her, in front of their teammates. One had vaginal sex with her in the bathroom. At least one tapped her buttocks. One stood over her and lowered his crotch toward her torso in the splits. It was an embarrassing, but exciting situation. Her sexually charged taunts made them feel awkward, as they shared chicken wings and mozzarella sticks they had ordered.
Even in that interpretation, it is difficult to imagine that a single player in that room made a decision they are proud to explain.
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Within the players' own varied accounts of what happened that night — within the embarrassment and discomfort — there is a hint of understanding that something wasn't quite right.
At least one heard her weeping and a slap so hard it made him decide to leave the room.
And when they were done with her they sent her wandering alone, into the near-dawn in tears. They had to golf in a few hours.
That's the best version of this story, told through their own recollections. The key detail, from their view, was that she asked for it.
Many choices were made in London that night. Many choices brought the champions back, seven years later — and will linger long after.
Maybe it was all bad luck. Maybe they met the wrong woman, who sought a 'wild night' but then regretted it.
It's possible. In a gap of memory, as the defense continually noted, pretty much anything is.
It's also possible that a different person might have returned to that old fortress instead. Earlier that evening, back at Jack's — as The Athletic previously reported — one of the five accused met a different girl. It was clear they were a hockey team, but it wasn't clear which. The players were buying drinks and handing them out to girls, she said. They kissed several times, before he tried to 'pawn' her off to his friends, repeatedly trying to get her to kiss them as well.
Later, he pressed her to come back to 'their' hotel. She declined, feeling uncomfortable and saying she had to work in the morning. She felt the man was 'really odd.' Later, through Snapchat, he again pressed for her to visit their hotel. Again, she declined.
'I didn't see anything happen to other women,' the woman said. 'But I can only imagine with the way they were being with me.'
Perhaps the familiar blueprint was just a coincidence. It's another detail, of many — seven years and counting — that remain lost in the fog of that one night in London.
(Illustration by Dan Goldfarb / The Athletic. Courtroom sketch of the five defendants from earlier in the Hockey Canada sexual assault trial by Alexandra Newbould / The Canadian Press via AP)
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