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Last week, the sexual assault trial of five former members of Canada’s 2018 national junior hockey team was disrupted once again after the judge dismissed a jury for the second time in three weeks.
The highly publicized trial will continue on Tuesday and be heard by the judge, Ontario Superior Court Justice Maria Carroccia, alone. Friday’s decision came after a juror accused two of the defense lawyers — Daniel Brown and Hilary Dudding, who represent Alex Formenton — of inappropriate behavior.
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Formenton, Carter Hart, Dillon Dubé, Michael McLeod and Cal Foote have all been charged with sexual assault in connection to an alleged incident following a Hockey Canada fundraising event in 2018.
All five players have pleaded not guilty.
Here’s what we know about the jury dismissal and what a judge-alone trial could mean for the proceedings.
(Note: The lawyers interviewed are not involved in the London case, but are aware of the details that have been publicly reported.)
On Thursday, a juror handed Justice Carroccia a note that read: “Multiple jury members feel we are being judged and made fun of by lawyers 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 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).
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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.”
On Friday, 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, Carroccia declared a mistrial when a juror alleged improper communications between one of the defense attorneys and a juror during a lunch break. On Friday, the judge dismissed the jury but did not declare a mistrial.
That’s because when defense attorneys initially asked for a mistrial on Thursday afternoon, they also proposed continuing the trial in front of Carroccia alone.
“All five defendants will be asking for a mistrial,” 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.”
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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.”
Lust said avoiding a mistrial was the most appropriate course of action, both in considering E.M.’s testimony and court resources. From the trial’s initial start date on April 22, the proceedings are entering the fifth week in a trial that was initially expected to last eight weeks.
In reacting to the decision by the court on Friday, 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 will proceed by judge alone means that Carroccia will hear the remaining testimony and evidence and that none of the testimony or evidence that was previously presented in front of the jury will need to be reintroduced.
First, and most importantly, it means 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 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.”
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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.
And while there’s been no timetable for a decision, Lust suggested it might take several months for a verdict to be rendered. “That’s pretty common for long cases,” he said
After agreeing to proceed judge-alone, the trial continued on Friday with the cross-examination of Crown witness Tyler Steenbergen, a member of the 2018 World Juniors team who was in the London hotel room that night, but is not accused of any wrongdoing.
Since being called to the witness box on Wednesday, Steenbergen has described what he said happened between E.M. — the complainant, whose identity is protected under a publication ban — and his former teammates in the early-morning hours of June 19, 2018. Attorneys for McLeod, Hart and Dubé have cross-examined Steenbergen, questioning him about conversations he had in the hotel room and the sexual acts he said he witnessed.
Steenbergen will return Tuesday for further cross-examination. Cunningham said on Friday that the Crown is almost done introducing its evidence, though it is expected that at least one more former player could be called to the stand.
When the Crown has closed its case, the defense will have its turn.
(Courtroom sketch of Justice Maria Carroccia sitting before several of the defendants earlier in the Hockey Canada sexual assault trial in London, Ont., by Alexandra Newbould / The Canadian Press via AP)
Hailey Salvian is a staff writer for The Athletic covering women’s hockey and the NHL. Previously, she covered the Calgary Flames and Ottawa Senators and served as a general assignment reporter. Follow Hailey on Twitter @hailey_salvian
