Former members of Canada's 2018 world junior hockey team, from left to right, Michael McLeod, Cal Foote, Dillon Dubé, Alex Formenton and Carter Hart leave the courthouse in London, Ont., on Thursday.Geoff Robins/Sammy Kogan/The Globe and Mail
All five former members of Canada’s world junior hockey team who were accused of sexually assaulting a woman after a 2018 Hockey Canada gala were acquitted in a London, Ont., courtroom Thursday.
Justice Maria Carroccia declared Michael McLeod, Carter Hart, Alex Formenton, Dillon Dubé and Cal Foote not guilty of sexual assault. Mr. McLeod, who had faced a second charge of being a party to sexual assault, was acquitted on that count as well.
Several members of the players’ families gasped audibly and began to cry when Justice Carroccia said at the beginning of her verdict that she did not believe the evidence of the complainant – a woman known publicly as E.M. – was credible or reliable.
Read the judge’s full decision in Hockey Canada sexual-assault trial
“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 said.
It took Justice Carroccia more than four hours to read her 91-page decision, which at times offered a scathing analysis of E.M.’s testimony.
She told the packed courtroom that she did not believe E.M.’s version of what happened, and she rejected the Crown’s theory that the woman was too drunk and scared to leave the hotel room where the alleged assault occurred.
“Much has been made in this case about the concept of consent. This case, on its facts, does not raise issues of the reformulation of the legal concept of consent,” the judge said.
“In this case, I have found actual consent not vitiated by fear. I do not find the evidence of E.M. to be either credible or reliable. In my lengthy reasons set out below, I will explain why I reached these conclusions.”
London Chief of Police Thai Truong attends a press conference as five Canadian professional hockey players face charges stemming from an alleged sexual assault dating to the time they were members of the country's 2018 world junior team, in London, Ontario, Canada February 5, 2024. REUTERS/Carlos OsorioCARLOS OSORIO/Reuters
Justice Carroccia’s decision, more than seven years after the allegations were reported to police, marks the end of a contentious and often emotionally charged proceeding that was plagued with delays, a mistrial, two jury dismissals and a dramatic transition to a judge-alone trial.
It’s a case that has captivated the country, putting Canada’s beloved game under a microscope and triggering discussions at kitchen tables across the country about consent, alcohol and the criminal justice system’s capacity to handle sexual assault. Advocates for sexual assault survivors decried the ruling as a failure of the system.
Advocates describe ‘heartbreaking’ verdict in Hockey Canada trial
The decision drew swift praise from the five defence teams – and condemnation from advocacy groups.
Hilla Kerner, a spokeswoman for the Vancouver Rape Relief and Women’s Shelter, decried the verdict.
“Women following the trial understand exactly E.M.’s experience,” she said. “There is no voluntary agreement when there is a group of men in the room. The verdict sends a devastating message to women victims of rape.”
Outside the courthouse Thursday afternoon after the ruling, Crown attorney Meaghan Cunningham spoke briefly to reporters.
“We will carefully review Justice Carroccia’s decision, and as this case is still within the appeal period, we have no further comments to make about the decision at this time,” she said.
A representative from each of the five defence teams also gave statements.
Supporters of the complainant, E.M., embrace outside the London, Ont., courthouse on Thursday before the Hockey Canada trial verdict was announced.Geoff Robins/The Globe and Mail
David Humphrey, who represented Mr. McLeod, called the acquittal a “resounding vindication” for his client.
“The damage to Mr. McLeod’s reputation and his career has been significant, but today’s decision begins to restore what was very unfairly taken away from him,” Mr. Humphrey said.
Megan Savard, Mr. Hart’s lawyer, said police and prosecutors brought the sexual assault case to court even though records showed they knew it had “fatal flaws” since 2018.
“This outcome was not just predictable, it was predicted,” she said, later adding that the public narrative of the night in question was “one-sided and untested” before the trial.
The key legal issues at the heart of the Hockey Canada verdict
Daniel Brown, lawyer for Mr. Formenton, said London police “got it right” when they didn’t lay charges against his client in the initial investigation.
Mr. Foote’s lawyer, Julianna Greenspan, told reporters her client never lost faith that justice would be served: “At the start of this trial, Cal Foote walked into this courthouse an innocent man, and he walks out today exactly that.”
Julie Santarossa, a lawyer for Mr. Dubé, praised Justice Carroccia, saying she engaged with the evidence in a thoughtful, methodical and principled manner.
Crown attorney Meaghan Cunningham speaking to media outside the courthouse on Thursday.Sammy Kogan/The Globe and Mail
At the time of the players’ arrest in January, 2024, all of the men were playing professional hockey.
Mr. Dubé was a member of the Calgary Flames, Mr. Hart was with the Philadelphia Flyers, and Mr. McLeod and Mr. Foote were playing for the New Jersey Devils. Mr. Formenton, who had previously been a member of the Ottawa Senators, was playing for the Swiss club, HC Ambri-Piotta.
On Thursday, the National Hockey League released a statement saying that it is reviewing the judge’s findings: “The allegations made in this case, even if not determined to have been criminal, were very disturbing and the behaviour at issue was unacceptable.” As of now, the players remain ineligible to play in the NHL.
Hockey Canada, which launched an investigation of the alleged assault, issued a statement after the verdict, saying its process was still continuing. The results of that probe were appealed by the players, and last fall an independent appeal board hearing the matter suspended its proceeding until the conclusion of the criminal trial.
NHL says players ineligible to join league while judge’s verdict is reviewed
Players left the courthouse separately with their families or defence teams, and offered no comment.
The trial of Mr. McLeod, Mr. Hart, Mr. Formenton, Mr. Dubé and Mr. Foote began in late April and ran for eight weeks until closing arguments wrapped up on June 13.
Hundreds of spectators, reporters and demonstrators gathered at London’s Superior Court Thursday morning to hear the judge’s ruling.
Justice Carroccia began her verdict with a lengthy recap of the evidence heard at trial, where court was presented with two competing versions of events.
During E.M.’s nine days on the stand – seven of which were spent under sometimes gruelling cross-examination by five different defence teams – she told the court that on the night of June 18, 2018, she went dancing at a London bar called Jack’s, where she met some of the players, who were in town for a Hockey Canada gala. After a night of drinking and dancing, she and one of the players – Mr. McLeod – returned to his hotel where they had consensual sex.
Counter-protesters stand by as demonstrators in support of E.M. rally outside the London, Ont.,courthouse on Thursday.Sammy Kogan/The Globe and Mail
In E.M.’s telling, when they finished, she saw Mr. McLeod on his phone. Then he disappeared for a bit. Shortly after, other players began entering the room, which “shocked” her. She alleged that the players told her to get on the floor and to perform various sex acts, which she went along with because she was afraid.
“I remember them making comments about putting golf balls in me, in my vagina, and asking if I could take the whole club, fit the whole golf club in me,” E.M. said.
She told the court her mind and body separated and she went into “autopilot.”
The players presented a different narrative: Mr. McLeod’s lawyer posited the theory that it was E.M. who told Mr. McLeod to invite his teammates to the room to engage in sexual activity and that once they arrived, she was the one instigating the sexual acts. (Court was shown a screenshot of a text message Mr. McLeod sent to the team’s group chat, inviting them to his hotel room for a threesome.)
At two points, Mr. McLeod filmed short videos of E.M., in which she can be seen saying things such as “it was all consensual” and that she “enjoyed it.” E.M. testified that she doesn’t remember the videos being filmed, but that she would only have been saying what she felt they wanted to hear.
Alex Formenton arrives to court in London, Ont., on Thursday while protesters in support of complainant E.M. stand behind him.Sammy Kogan/The Globe and Mail
The Crown alleged that, after Mr. McLeod had consensual sex with E.M. and the other players began arriving, E.M performed oral sex on Mr. Hart, Mr. Dubé, Mr. Formenton and Mr. McLeod. Court heard that Mr. Formenton and Mr. McLeod also had vaginal intercourse with E.M. and that Mr. Dubé slapped her on the buttocks during the alleged assault. E.M. also testified that Mr. Foote performed the splits over top of her, grazing his genitals against her face. (Mr. Foote’s lawyer argued he had been wearing pants and he did not touch her.)
In her ruling, Justice Carroccia found that Mr. Foote had performed the splits over E.M.’s body, but she concluded it was not sexual in nature. Regarding the alleged slap by Mr. Dubé, the judge said it would be wrong of her to “parse out this one discrete slap from what I find to be a single multi-faceted period of sexual conduct.”
“While I accept that the slap took place, I do not accept that Mr. Dubé was one of several men who took turns slapping E.M. as hard as they could,” Justice Carroccia said.
The Hockey Canada trial verdict has been delivered. Here's how we got here
With respect to the other allegations, Justice Carroccia rejected the Crown’s arguments.
Under cross-examination, E.M. acknowledged that she could have been flirty or suggestive, while acting in autopilot. And she agreed with a suggestion from Ms. Savard that she may have adopted the persona of a porn star at times as a coping tool.
The judge also accepted witness testimony from the accused players’ teammates – the men spent time in room 209 of the hotel but were not accused of wrongdoing – that E.M. had been the one demanding sexual acts.
“On the basis of all of the evidence, I find as a fact that the complainant did express that she wanted to engage in sexual activity with the men by saying things like ‘is someone going to fuck me’ and masturbating,” she said.
She pointed to one of the consent videos as circumstantial evidence of E.M.’s demeanour in the room. Justice Carroccia noted in the first video – which E.M. did not realize was being shot – the complainant is “speaking normally, she was smiling and did not appear to be upset or in distress … she did not appear to be intoxicated.”
Judge in Hockey Canada trial did not use videos to determine whether woman had consented
She was wiping her eyes, the judge noted, which E.M. said was because she may have been crying, but the Justice Carroccia called this “speculation,” given that E.M. did not remember the video being shot.
In analyzing E.M.’s evidence, the judge found that “there are troubling aspects to the manner in which the complainant gave evidence.” For example, the judge said, E.M. initially told the court that she weighed 120 pounds at the time of the incident, but her medical records showed she weighed 138 pounds at the time – which E.M. had recently reviewed.
Justice Carroccia said E.M. struggled with memory gaps, and tried to fill those gaps with assumptions. She underscored inconsistencies in E.M.’s testimony compared to previous statements she gave to London police, as well as statements she provided to Hockey Canada – which launched a Code of Conduct investigation – and in a statement of claim that she filed against Hockey Canada in 2022. (The lawsuit was resolved for an undisclosed sum without the knowledge of the players. An initial police investigation was closed without charges in 2019, but the service reopened the case after the lawsuit became public.)
Reporter Robyn Doolittle and Standards Editor Sandra E. Martin discuss the issue of consent, particularly a video recorded by one of the accused.
The Globe and Mail
Most notably, the judge found that E.M.’s claim that she had been afraid in the room surfaced for the first time in the 2022 lawsuit.
“E.M. testified that she was feeling scared and fearful when she was in the hotel room, yet she did not mention her fear in any of the three statements she provided to the police in 2018,” the judge noted. (E.M. was asked about this during the trial and said that when she initially spoke to police, she had not “processed” what happened.)
The judge found that there was not evidence that any of the players ever threatened E.M., or applied any force: “She made no effort to leave the room.”
She also rejected E.M.’s claims that she had been frightened by the discussion about the golf balls being inserted into her vagina. “Again, in her initial statement to the police, the complainant described these comments as being made in a joking manner, not a threatening one.”
One of the most explosive pieces of evidence presented during the trial – which police did not have during the first investigation – was a transcript of a post-incident group chat between players who had been in the room, where the players discuss what they should say about what happened.
The Crown asserted the chat was evidence of the men colluding to form a common narrative, but Justice Carroccia disagreed.
“In my view, the group chat reflects that the participants were expressing their honest recollections about what happened in room 209 and not concocting a false narrative.”
Protesters express support for complainant in Hockey Canada sexual-assault case outside courthouse
After the verdict, E.M.’s lawyer, Karen Bellehumeur, issued a statement on her behalf, which thanked those who have sent her messages of support: “Your kind words mean so much to me and have helped me through this process more than you will ever know.”
Ms. Bellehumeur, who spent two decades as a Crown attorney before transitioning to private practice where she supports sexual-assault complainants, also spoke to reporters outside the courthouse, saying the justice system continues to struggle with eradicating myths and stereotypes from its proceedings.
“We look to this case as a turning point – to do more to prevent sexual violence – and to make reforms to afford survivors better treatment by the justice system,” Ms. Bellehumeur said. “I stand with E.M., and we stand resolute that together we can and must demand better.”
With reports from Sean Fine and Claire McFarlane