Judge to deliver verdicts in high-profile world junior sex assault trial

Five members of Canada’s 2018 world junior hockey team accused of sexual assault will learn their fates in their high-profile trial Thursday.

Superior Court Justice Maria Carroccia will deliver her verdicts inside a London, Ont., courtroom in the case of Michael McLeod, Alex Formenton, Carter Hart, Dillon Dube and Callan Foote.

The five men have been on trial since late April – accused of engaging in non-consensual group sex with a then-20-year-old woman in June 2018. All five men pleaded not guilty to sexual assault; McLeod also pleaded not guilty to an additional charge of being a party to the offence of sexual assault.

It initially started as a jury trial, but just a few days in, a mistrial was declared out of concern about a tainted jury after a juror accused Hillary Dudding, one of Formenton’s lawyers, of initiating conversation while in line for lunch.

Dudding denied this and said any contact with the juror was inadvertent.

The trial resumed the following week with a new jury. They would go on to watch videos of the complainant, known as E.M., taken by McLeod, hear from then-teammate Taylor Raddysh about a group-chat screenshot he took capturing talk of a “3 way” sent by McLeod, and hear from E.M. herself.

The now-27-year-old woman, whose identity is protected under a standard publication ban, was subject to intense cross-examination during her nine days on the stand.

Court heard the team was in London for events marking its gold-medal performance at that year’s championship, and that the complainant was out with friends when they met at a downtown bar on June 18, 2018.

After being with McLeod and his teammates at the bar, E.M. would go on to have consensual sex with McLeod in his room in the early morning hours of June 19. Court has heard that E.M., who testified she was drunk and not of clear mind, was in the washroom after she had sex with McLeod and came out to a group of men in the room allegedly invited by McLeod in the group chat.

It was then that the Crown alleges several sexual acts took place without E.M.’s consent.

Defence lawyers have suggested E.M. wasn’t as drunk as she has testified she was, wanted a “wild night” with the players and was “egging” them on to have sex with her, and accused her of having a “clear agenda” at the trial.

E.M. pushed back against those claims and at points outright rejected them, saying she was coaxed into staying in the room and was disrespected and taken advantage of by the group, who she said “could see I was out of my mind.”

After E.M. finished her testimony, then-teammate Tyler Steenbergen took the stand as a Crown witness, but his testimony was halted just two days in.

Court received a note from a juror stating they believed Formenton’s lawyers, Dudding and Dan Brown, would “turn to each other and laugh as if they are discussing our appearance” when the jury was entering the room.

Carroccia said she was concerned this could impact some jurors’ ability to fairly decide the case and that it could have a chilling effect on the defence lawyers. Brown and Dudding called the juror’s note an “unfortunate misinterpretation” and said “the very idea of counsel making light of a juror is illogical and runs directly counter to our purpose and function.”

Carroccia went on to dismiss that jury, and the trial would go on by judge alone.

Only Hart would testify at the trial, while the other players’ lawyers cited evidence and police interviews that had already been played in court as part of the reasons why their clients were reserving their right not to testify.

Hart testified in part that E.M. was asking the players to have sex with her, and he chose to ask for oral sex because he did not want to have intercourse. He said it was “consensual” and brief because it was “weird.”

Hart would agree with Crown prosecutor Meaghan Cunningham under cross-examination that he was “putting a lot of faith in your friend, Mr. McLeod, to set something up that was morally acceptable to you.”

During closing submissions, defence lawyers called the trial “historic” and repeatedly attacked E.M.’s credibility, saying she “created a lie” out of regret and embarrassment, and that throughout the night, her “communication of consent is overwhelming.”

Meanwhile, the Crown urged the judge to convict the men, with prosecutor Meaghan Cunningham arguing the men were “reckless” for engaging in group sex with E.M. and not seeking her affirmative consent.

Cunningham said E.M. is a credible witness because she was abundantly fair in the trial, clear and concise, not resentful and confirmatory. She argued that many defence submissions on E.M.’s behaviour are based on assumptions about how someone in her situation would act.

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