Nicole Osborne/The Globe and Mail
On his second day in the witness box, the now-retired police sergeant who led the initial criminal investigation into an alleged sexual assault by five members of Canada’s 2018 world junior hockey team was grilled by Crown attorney Meaghan Cunningham about apparent gaps in his probe.
Under questioning from the Crown, retired officer Stephen Newton admitted that he had obtained surveillance footage from a bar in London, Ont., where the complainant and the players met prior to the alleged assault on June 19, 2018, but never watched the footage.
He conceded that he had heard that one of the accused players, Michael McLeod, had texted a teammate to invite them to his hotel room for a “three-way.” But the officer said he took no steps to obtain that message.
Mr. Newton acknowledged that he never filed any search warrants or production orders to obtain records from Hockey Canada, the sport’s national governing body, which had launched its own investigation into the alleged sexual assault.
And during cross-examination, Mr. Newton conceded that, when given an opportunity to interview accused player Dillon Dubé, he forgot to ask whether Mr. Dubé had touched the complainant’s buttocks in the hotel room – an event another teammate told Mr. Newton he witnessed, court heard.
“Maybe I missed that,” Mr. Newton said.
In February, 2019, eight months after Mr. Newton was tasked with investigating the alleged sexual assault at the Delta Armouries hotel, he closed the case without charges.
The London Police Service reopened the investigation in 2022 after TSN broke the story that the complainant in the case – a woman known publicly as E.M. – had filed a lawsuit against Hockey Canada and unnamed members of the world junior team. The sports body settled that claim for an undisclosed sum and without the knowledge of the players.
In early 2024, another detective reached a different conclusion and charged Mr. McLeod, Mr. Dubé, Carter Hart, Alex Formenton and Cal Foote with sexual assault. Mr. McLeod faces a second charge of being a party to sexual assault. Each has pleaded not guilty.
At the players’ criminal trial in London, Mr. Newton laid out what transpired in his first investigation. What emerged in his testimony is that within a week he had formed an opinion that he did not have reasonable and probable grounds to lay a charge.
London police detective told accused in Hockey Canada trial he had no plans to charge him in 2018
The officer told the court that, after viewing video surveillance of E.M. entering and exiting the hotel on the night in question, he did not believe she was too intoxicated to agree to sexual activity.
Mr. Newton also left his first interview with E.M. – which occurred on June 22, three days after the alleged assault – with the feeling that “there appeared to be a certain level of consent,” according to notes he took at the time, which were read in court. Mr. Newton added that it appeared she had been actively involved in the sexual activity.
Ms. Cunningham asked the officer to explain what he meant by this.
“Well, I just meant she was participating in the acts that were occurring in the room without resisting or saying she didn’t want to do it or anything like that,” Mr. Newton said.
In Canada, the law requires all parties to be freely agreeing to sexual activity. Physically fighting back or saying “no” is not necessary to determine whether a sexual assault has occurred. Rather, the law looks at whether an individual has indicated “yes,” without pressure or coercion.
During Mr. Newton’s examination, the Crown played in full his interviews with three of the accused players. In those interviews, Mr. Newton asked many questions about the extent to which E.M. appeared drunk.
Ms. Cunningham asked the officer about this: “So at the point in time in your investigation where you’re conducting these interviews with Mr. McLeod, Mr. Formenton, and Mr. Dubé, was [E.M’s] capacity to consent the only issue you were interested in?”
“It was part of it. Consent was part of it,” Mr. Newton replied.
During cross-examination, defence lawyer Daniel Brown – who is representing Mr. Formenton – suggested to Mr. Newton that he didn’t pursue warrants or compel third parties to produce evidence – such as the players’ texts or Hockey Canada’s investigative files – because he didn’t have the legal basis to do so, since he didn’t believe an offence had been committed.
Police must be able to convince a judge that they have reasonable and probable grounds to believe a crime was committed in order to obtain warrants.
“So it isn’t a question of you, for example, being lazy . . . you simply lacked the legal authority to do that,” Mr. Brown said.
Defence attorney David Humphrey, who is representing Mr. McLeod, took steps to expand on Mr. Newton’s experience.
He asked Mr. Newton – who court has heard was a 32-year veteran of the London Police Service with extensive experience handling sexual assault cases – if he always tried to follow best practices.
“Yes, I did the best I could,” Mr. Newton said.
Mr. Humphrey asked Mr. Newton about whether he believed E.M. was being “pressured” by her mother to pursue charges.
“It was a developing concern,” the retired officer replied.
Court heard that after Mr. Newton told E.M. he had reservations about the case, he told her he would “support” her regardless if she wanted to proceed. To this, E.M. indicated she wanted the investigation paused. (She later changed her mind and asked him to reopen the file, which he did.)
Mr. Newton’s interviews with three of the accused players occurred in November and December of 2018. Court heard that they agreed to the interviews with the understanding that they were not suspects in the case, as Mr. Newton did not believe an offence had been committed. The interviews took place at lawyers’ offices – rather than the police station – and the players were joined by their attorneys.
Mr. Newton conceded it was unusual, but he felt it was important to get the players’ versions of events on the record and that this was a format that would allow the men to feel comfortable.
At the end of court Wednesday, Ms. Cunningham informed Justice Maria Carroccia that the Crown was almost finished presenting its case. However, Ms. Cunningham said she may call one more witness: another member of the 2018 world junior team. Several players who were in the hotel room but who are not accused of wrongdoing have already testified. A final determination on that is expected Thursday.