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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. — Court has entered another 15-minute recess.
Beforehand, Justice Carroccia recapped many of the prosecution's major points, as presented. Many of them focused on establishing and strengthening E.M.'s credibility while showing that the defendants' credibility was compromised and their narrative "concocted." Consent, as it has been throughout the trial, is at the heart of it all.
A phrase repeated more than once in the recap of the prosecution's case is the allegation that E.M.'s "ability to consent was constrained by her intoxication and vulnerability." The prosecution's position is that all five defendants should be found guilty on all associated charges.
Justice Carroccia then recapped Michael McLeod's defense against the prosecution's case. Its fundamental point is that E.M. was out to have a wild night on July 18, 2018, initiated sexual activity with the players and regretted it after the fact.
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LONDON, Ont. — Justice Carroccia went through each player's testimony.
Of the five defendants in the case, Carter Hart was the only player who took the stand.
Hart said that he was “open” to a three-way sexual encounter when he received a text message invitation from McLeod that night and, after arriving to McLeod’s hotel room, received oral sex from E.M. Hart said the oral sex was consensual and that E.M. repeatedly asked players to have sex with her.
His attorney, Megan Savard, previously told the court that Hart secured verbal and nonverbal consent from E.M. prior to the oral sex and suggested that Hart asked E.M. for a “blowie” as an exercise in “boundary setting” because he did not want to have vaginal sex with her.
LONDON, Ont. — Justice Carroccia is now going over the testimony from Brett Howden. During the trial, she ruled that a text message by Howden to a teammate describing Dillon Dubé smacking E.M. was not admissible as evidence. Carroccia denied the Crown’s request to admit Howden's text to Taylor Raddysh on June 26, 2018, in which he described relief having left the London, Ont., hotel room after Dubé slapped a woman on the buttocks.
“Dude, I’m so happy I left when all that sh– went down. Ha, ha,” Howden wrote, adding, “Man, when I was leaving, Duber was smacking this girl’s ass so hard. It looked like it hurt so bad.”
During his testimony, Howden said he was unable to recall the events described in the text message.
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LONDON, Ont. — Recess is over, and Justice Carroccia has resumed her recap. Her early focus is on the testimony of Tyler Steenbergen, a member of the team who was not charged with any crime. Carter Hart's actions were a focal point of his time on the stand.
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LONDON, Ont. — Outside the courtroom, the defendants are clearly relieved. Dillon Dubé was the first out, with a smile on his face, and headed toward another set of doors. Michael McLeod tearfully embraced his family by the metal detectors in front of the doors.
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LONDON, Ont. — The court is taking a 15-minute recess, and Justice Carroccia says she's about halfway through her reasons.
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LONDON, Ont. — Justice Carroccia also spent some time recapping what was said in the consent videos recorded by Michael McLeod that night in London.
In the first video, E.M. says, "I'm OK with this." In a second, she said, "It was all consensual."
Carroccia says E.M. did "not display any signs of intoxication” in the videos and had “no difficulty speaking." E.M. alleged in court that, although she said it was all consensual, that is not how she felt at the time.
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LONDON, Ont. — Justice Carroccia is continuing to go over evidence and highlighting inconsistencies in E.M.'s statements.
The judge says E.M. initially identified Sam Steel as one of the players she had performed oral sex on in the hotel room in statements to police in 2018. Carter Hart was later identified by someone else as that person. This was previously reported as part of Megan Savard's cross-examination of E.M. in May.
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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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.
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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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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.”
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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.”
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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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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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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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