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Canada Trial
LONDON, Ont. – A judge discharged the jury in the sexual assault trial of five former members of Canada’s 2018 world junior hockey team on Friday. A new jury will not be ordered, and the proceedings will continue as a judge-alone trial, meaning Ontario Superior Court Justice Maria Carroccia will hear the evidence and be responsible for coming to a verdict.
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The 14 jurors — nine women and five men — were sent home Friday following the ruling by Carroccia, who has presided over the trial that began April 25.
“I have determined in this case that it is appropriate to discharge the jury,” Carroccia told the jury. “I know that you have invested four weeks in this trial and certainly, you have the thanks of myself, court staff, counsel for the time and effort that you put into this matter, but the jury will be discharged.
“So I thank you, and you are free to go.”
Michael McLeod, Carter Hart, Alex Formenton, Dillon Dubé and Cal Foote are all charged with sexual assault after an alleged incident in June 2018. The complainant — a woman known as E.M.; her 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 gold medal at the 2018 World Junior Championship.
All five players have pleaded not guilty.
This is the second time a jury has been discharged in the case. Friday’s decision comes after a juror sent a note to Carroccia on Thursday that accused two of the defense lawyers of inappropriate behavior.
The note read: “Multiple jury members feel we are being judged and made fun of by lawyers (Daniel) Brown and Hilary Dudding. Every day when we enter the courtroom they observe us, whisper to each other and turn to each other and laugh as if they are discussing our appearance. This is unprofessional and unacceptable.”
During legal arguments on Thursday, which were previously covered by a publication ban, both lawyers denied the accusation, and Carroccia said she had not witnessed any inappropriate conduct by the defense.
Brown, who along with Dudding are representing Formenton, conferred with the other four defense teams and asked for a mistrial, arguing that the jury would not be able to remain impartial following the allegations.
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Brown and other defense attorneys also referenced a “chilling effect” that the allegations would have on the defense teams. Brown said that his ability to make submissions before the court, or even look at the jurors, would be impacted by the situation, impeding his and his counterparts’ abilities to represent their clients.
Brown also told the judge that he believed the protestors outside the courtroom and social media commentary might have influenced the jurors.
Crown attorney Meaghan Cunningham argued that ordering a mistrial was premature and lobbied instead for an inquiry into the juror complaint. On Friday, Carroccia responded to that request by saying that she was deciding to discharge the jury because she felt that it would be difficult to ask the jurors to dispel “negative feelings about counsel” and as such, the fairness of the trial “has been compromised.”
“I must discharge the jury to protect trial fairness,” Carroccia said in her decision.
Once the jury was discharged, Brown issued the following statement to reporters:
“We are not in the habit of making public statements during a trial, and this is likely to be the only time we do so in this case.
“Earlier today, Justice Carroccia decided to dismiss the jury in a proceeding where our client, Alex Formenton, is a defendant. This was a regrettable development for Mr. Formenton. He had very much wanted to be tried by a jury of his peers and has now lost that opportunity.
“We, his counsel, found ourselves involved in the unusual chain of events that led to this outcome. In short, a juror came to somehow believe that our courtroom demeanor was disrespectful of her. This was an unfortunate misinterpretation. No defence counsel would risk alienating a juror, and nothing could be further from the truth in this instance. While it is true that co-counsel will speak with one another from time to time during a trial, this is commonplace. The very idea of counsel making light of a juror is illogical and runs directly counter to our purpose and function.
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“In a larger sense, perceptions and appearances play a central role in this trial — particularly, appearances that have been captured on videotape and perceptions about courtroom testimony. If a single juror were prone to leap to unwarranted conclusions — and potentially impress these erroneous conclusions on their fellow jurors — the ends of justice and the right to a fair trial would be jeopardized.
“Accordingly, we will now be going forward with a trial by judge alone. We have every confidence that our trial judge will ensure a full and fair proceeding.”
Megan Savard, attorney for Carter Hart, said Thursday’s incident was “a worse case of jury tainting than the last time around.”
The trial continued on Friday with Tyler Steenbergen — a member of Canada’s 2018 national world junior team, and the Crown’s latest witness — continuing his testimony. Steenbergen described what happened between E.M. and his former teammates in the early-morning hours of June 19, 2018. Attorneys for McLeod, Hart, and Dubé then cross-examined Steenbergen, questioning him about conversations he had in the hotel room and the sexual acts he witnessed. Steenbergen will return Tuesday for further cross-examination. Monday is a holiday in Canada.
A previous mistrial was declared on April 25. At the time, the reasons for the declaration were protected by a publication ban, which has since been lifted because of the election for the case to proceed by judge alone.
That mistrial occurred after a juror reported that a member of the court — Dudding — spoke to her at a local market during the lunch break.
Brown, Dudding’s co-counsel, told the judge that his understanding of the situation was that there was an accidental and innocuous interaction during which Dudding and the juror were next to each other in line for lunch and his colleague acknowledged the awkwardness in a benign way.
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That juror, who was later called in front of the judge and attorneys, described the interaction differently, stating that Dudding spoke to her in line, and referenced there being a lot of “head-nodding” that morning. The jury had recently heard the Crown’s opening statement.
When approached by reporters during a morning break in court on Friday morning, both Brown and Dudding declined to comment further on either situation.
“We don’t want to have any comments on that,” Dudding said. “We’re just trying to stay focused.”
— The Athletic′s Hailey Salvian and Dan Robson reported remotely from Toronto.
(Photo: Andy Devlin / Getty Images)
