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The Hockey Canada sexual assault trial comes to its conclusion today as the judge will deliver a ruling this morning in London, Ont.
Five players — Michael McLeod, Carter Hart, Dillon Dubé, Alex Formenton and Cal Foote — are all charged with sexual assault after an alleged incident in June 2018 in which a 20-year-old woman said she was sexually assaulted over a span of hours by the players in a London, Ont., hotel room. All five players pleaded not guilty.
To open Thursday's proceedings, Justice Maria Carroccia said, "having found that I cannot rely upon the evidence of E.M. and then considering the evidence in this trial as a whole, I conclude that the Crown cannot meet its onus on any of the counts before me."
As part of her reasons — that are still being read in the courtroom at this time — Carroccia said, "in this case, I have found actual consent not vitiated by fear."
She has not yet given an official verdict.
Follow along as our writers provide news and updates from the courthouse.
LONDON, Ont. — Consent has been a major focal point in the eight-week trial. The Crown argued that E.M. did not voluntarily consent to any of the specific sexual activity and 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.
As part of her reasons — that are still being read in the courtroom at this time— Carroccia said, "in this case, I have found actual consent not vitiated by fear."
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Hockey Canada sexual assault trial is over; decision coming July 24
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LONDON, Ont. — Richard McLeod, Michael McLeod's father who has sat through the entire trial, leaned forward and put his face in his hands in apparent relief as Carroccia said she did not find E.M. "credible or reliable."
LONDON, Ont. — In reading her decision, Justice Maria Carroccia said, "having found that I cannot rely upon the evidence of E.M. and then considering the evidence in this trial as a whole, I conclude that the Crown cannot meet its onus on any of the counts before me."
She is now going over all the evidence of the case and has not made an official verdict at this time.
LONDON, Ont. — Carroccia just announced that she does not find E.M.'s account reliable and will now explain her reasoning.
"I conclude that the Crown cannot meet its onus" on any of the charges, Carroccia said.
LONDON, Ont. — Justice Maria Carroccia, after some minor housekeeping, began recounting the case at 10:24 ET, laying out the events of the night leading up to the events in question and summarizing the cases of the prosecution and players alike.
LONDON, Ont. — Proceedings are set to begin from the 14th floor of the Ontario Superior Court house.
Reporters and members of the public alike, beyond a small number in the primary courtroom, are scattered throughout the building and will monitor the sentencing via video feed from "overflow" rooms.
Each of the five defendants, along with their representatives, is seated at their own table in the courtroom. Michael McLeod, the only player charged on two counts, is seated closest to Justice Maria Carroccia.
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Hockey Canada sexual assault trial is over; decision coming July 24
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By Katie Strang and Dan Robson
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, nor 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.”
“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.”
By Katie Strang and Dan Robson
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.)
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.”
By Katie Strang and Dan Robson
With the Hockey Canada trial over and a decision from Justice Maria Carroccia as to whether guilt was proven beyond a reasonable doubt to be announced today, this has become a touchstone for perspectives on sexual assault, misogyny and consent. The “she said, they said” nature of the evidence has also dragged the insular and protective culture of hockey into an uncomfortable spotlight.
Read more below about why judgment can be rendered regardless of the outcome.
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Legal decision for the ‘Hockey Canada 5’ won’t come for weeks, but judgment can be rendered
By Katie Strang and Dan Robson
The prosecution described Michael McLeod as the “architect” of the “group sexual activity” at the center of the Hockey Canada sexual assault trial and said he told “outright lies” to portray the complainant as the aggressor in the sexual interactions of the night and advance a “false narrative.”
Attorney Meaghan Cunningham provided Justice Maria Carroccia an outline of the Crown’s argument, showing a power point in a closing submission last month that she said will demonstrate E.M. did not voluntarily agree to the charged sexual acts of the night. Cunningham began that presentation by telling Carroccia that she intended to prove E.M. did not want to engage in group sex and that McLeod repeatedly lied about his role as the orchestrator of the alleged incident.
McLeod, Carter Hart, Alex Formenton, Dillon Dubé and Cal Foote are all charged with sexual assault. 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.
Read more below.
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Prosecutor calls Michael McLeod the architect of Hockey Canada sexual assault
LONDON, Ont. — Carter Hart was the final defendant to arrive at the courthouse.
Hart, formerly a goalie for the Philadelphia Flyers, was dropped off in front of the building, climbing out of a black Chevrolet Suburban.
Hart, like his fellow defendants, was greeted with loud boos and chants.
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LONDON, ONT. — Michael McLeod, the only player facing two charges, has arrived.
He approached the building from a side opposite a growing, vocal group of protestors.
Three men supporting the players, two of whom held signs, waited nearby at the courthouse steps.
They stood across from a much larger, much louder group of people — roughly 100 — supporting E.M. and sexual assault survivors.
Cal Foote arrived shortly after McLeod.
By Katie Strang and Dan Robson
After a jury was discharged in the Hockey Canada sexual assault trial, a publication ban on previously unreported details from the trial was lifted.
The highly publicized trial has been marred by a series of unexpected incidents — including an attempt by a member of the public to locate the Crown’s central witness, concerns that smart glasses were being used to illegally record the proceedings, and aggressive interactions with the media.
More on what the jury didn’t hear at the link below.
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What the jury didn’t hear in the Hockey Canada sexual assault trial
LONDON, Ont. — Alex Formenton was the first defendant to arrive at the courthouse, along with his defense team, led by Daniel Brown.
More than 50 protestors supporting E.M. and sexual assault survivors chanted and booed Formenton and his party as they approached the building.
First, and most importantly, the switch to a judge-alone trial meant Justice Carroccia will render the verdicts on each of the charges rather than providing instruction and guidance on the law to a group of jurors.
According to criminal defense lawyer Nikolas Lust, judges interpret the law differently. Carroccia, for example, is a former criminal defense attorney who earned judicial appointment in June 2020. Lust asserted that does not necessarily mean the five players will be acquitted. But, he said, “defense lawyers who become judges are just so much more aware of the law and the nature of sexual assaults than your average person.”
One fairly consistent trait among judges, however, is that they are “not as swayed by narrative and emotions in the same way that a jury is,” Lust said.
Another significant difference is that judges will often provide a written opinion that details their reasons for arriving at a given decision. That differs from a jury trial, where jurors come back from deliberations and provide a verdict, but no explanation.
“Whatever the result is, people are going to know how it is that Her Honor got there,” Lust explained.
LONDON, Ont. — Supporters of E.M and sexual assault survivors, holding signs and printed sheets of protest chants, have arrived outside the courthouse.
Protests aren’t allowed in court. The protesters plan to reconvene once the verdicts are rendered and court is dismissed, and the expectation is that other protesters in support of the players will arrive ahead of the trial as well.
About 15 minutes before the courthouse doors were to open at 8:30 a.m. ET, the line for admission — comprised of both media and the public — was about 60 people deep.
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A juror handed Justice Carroccia a note that read: “Multiple jury members feel we are being judged and made fun of by (defense) 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.”
Brown and Dudding categorically denied the jurors’ accusations.
In arguing for the trial to continue in front of Carroccia alone, Megan Savard — attorney for Carter Hart — said the note was a worse form of jury tainting than the initial incident that led to a mistrial on April 25. In the legal arguments, which were previously covered by a publication ban, Brown and other defense attorneys referenced a “chilling effect” that the allegations would have in court.
Brown said that his ability to make submissions, or even look at the jurors, would be impacted by the situation, impeding his and his counterparts’ abilities to represent their clients fairly. Brown also told the judge that he believed that jurors might have been influenced by the dozens of protestors who have often gathered outside the courthouse and commentary on social media. (The court had heard previously that Carroccia made arrangements for the jury to enter the courthouse through a separate, private entrance).
Under the Canadian Charter of Rights and Freedoms, an accused has the right to be heard by an “independent and impartial tribunal.” But according to criminal defense lawyer Nikolas Lust, it’s “an absolute possibility” that a jury could be affected by outside influences, despite rules against reading or engaging with anything having to do with the case.
“The case is being talked about everywhere. It’s on YouTube, it’s on Twitter, it is on Facebook, it’s on TikTok,” Lust said. “Maybe (a juror) saw something online about people taking issue with (Brown’s) line of questioning and they developed some conscious or unconscious dislike of him.”
Carroccia told the court that, while she had not witnessed any inappropriate behavior by Brown or Dudding, it appeared to her that several members of the jury harbored negative feelings toward the defense.
“It is with reluctance that I have determined that the fairness of this trial has been compromised,” Carroccia said in her decision to discharge the jury to “protect trial fairness.”
Both juries were dismissed following complaints from jurors that defense counsel had acted inappropriately. In the first incident, Justice Carroccia declared a mistrial when a juror alleged improper communications between one of the defense attorneys and a juror during a lunch break. In the second incident, the judge dismissed the jury but did not declare a mistrial.
That’s because when defense attorneys initially asked for a mistrial, they also proposed continuing the trial in front of Carroccia alone.
“All five defendants will be asking for a mistrial,” Megan Savard, who spoke for the defense, told the court. “However, with the Crown’s consent … we would be prepared to reelect and continue the trial in front of your Honor.”
Crown attorney Meaghan Cunningham argued that an inquiry into the juror complaint would be a sufficient way forward and raised concerns that the Crown had presented much of its evidence with a jury — not a judge alone — in mind. But the Crown accepted the defense’s proposal to move forward with a judge-alone trial. That decision spared the complainant from a return to the witness box, where she was questioned over nine days, and where she’d have to recount it all again in front of a new jury.
“The judge has heard all the facts so far,” said criminal defense lawyer Sam Goldstein. “Rather than declare a mistrial and start the whole thing over again, one of the remedies is (continuing) judge alone.”
Criminal defense lawyer Nikolas Lust said avoiding a mistrial was the most appropriate course of action, both in considering E.M.’s testimony and court resources.
In reacting to the decision to dismiss the jury a second time, Cunningham said that the Crown was faced with two “undesirable options,” but would “obviously prefer the one that doesn’t cause further harm, or doesn’t further traumatize (E.M.).”
That the trial proceeded by judge alone meant that Carroccia heard the remaining testimony and evidence and that none of the testimony or evidence that was previously presented in front of the jury would need to be reintroduced.
By Katie Strang and Dan Robson
They arrived in London, Ontario, on June 17, 2018, nearly two dozen young men from all over Canada. They were almost five months removed from a gold medal run at the 2018 World Junior Ice Hockey Championships, an achievement that the Globe and Mail called Canada’s “hockey glory of the year.”
“Drink it in, Canada,” a story about the triumph began.
They descended upon London from some of the country’s hockey hotbeds, but also its leafy suburbs and far-flung prairie towns, minted royalty coming to a place that, even for Canada, embraces hockey heroes with fervor.
London sits an hour east of the U.S. border just north of Lake Erie. It has 400,000 residents but can feel smaller or larger, depending on the time of year. As many as 45,000 students, most attending Western University, make the city home during the school year. It is also a hockey mecca. The London Knights, a powerhouse junior program, average 9,000 fans a game at Budweiser Arena — an attendance that rivals some NHL teams. In the restaurants and bars downtown, the jerseys of former Knights players hang on the walls.
The players, the World Juniors champions, were brought to London as part of the Hockey Canada Foundation Gala & Golf event. It was a two-day “star-studded” celebration to recognize the champions and others, and it included a lavish dinner and a golf event in which many of the players would participate. Some Hockey Canada executives also attended, as did sponsors and corporate partners, local business leaders and more. Hockey Canada would use the weekend to raise money, and the players were an attraction that would help open wallets.
Most of them would stay at the Delta Hotel London Armouries, the most luxurious accommodation in town. It’s a sleek glass-paneled high-rise that emerges from an imposing sienna-bricked building flanked by turrets and framed by crenelated towers. The original structure, built in 1905, served as a militia headquarters for Canadian land force branches. Suspended in the glass arch above the lobby entrance is an antique cannon.
As the players arrived at the hotel and prepared for the festivities, many undoubtedly were excited about the gala but also eager for what might come after, when Hockey Canada’s leadership headed back to the hotel to sleep. These were young men in a town filled with college students. Sure, they would soak in the adulation at the official festivities, but the real fun would come at the bars on Richmond Street, where beers are poured into plastic cups, where early 2000s hip hop and dance music is played loud, where they would be surrounded by their peers, feeling like the lords of London.
Read more below.
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