Former NHL players Cal Foote, Dillon Dubé, Alex Formenton, Michael McLeod and Carter Hart, accused in a sexual assault following the World Junior Hockey Championships in 2018, arrive at the Court House in London, Ont., on April 23.The Globe and Mail/The Canadian Press
The sexual-assault trial of five former members of Canada’s 2018 world junior hockey team opened with a warning from the Crown attorney: There will be times during the proceedings when jurors may find it difficult to understand the actions of the complainant.
However, their job, said Crown attorney Heather Donkers in her opening remarks, was to guard against rape myths and stereotypes, as well as any preconceived notions about how sexual-assault complainants should behave.
“This case is not about how you believe you would act or how you think someone would – or should – act in a scenario like this one,” Ms. Donkers said, referring to the alleged victim, whose name is covered by a publication ban. She is known publicly only as E.M.
“This case is not about whether [E.M.] said ‘no’ or removed herself from an unwelcome situation when she had the opportunity. This case is about whether [E.M.] voluntarily agreed to engage in each and every sexual act that took place, at the time that it happened.”
Michael McLeod, Carter Hart, Alex Formenton, Dillon Dubé and Cal Foote are each accused of sexually assaulting E.M. in a hotel room in downtown London, Ont., after a Hockey Canada gala in June, 2018. Mr. McLeod faces a second charge of being a party to sexual assault.
Each has pleaded not guilty.
Wednesday marked the first day of the trial. Proceedings adjourned early after Ms. Donkers had finished her opening statement.
After the noon break, Ontario Superior Court Justice Maria Carroccia called the jurors back briefly and told them: “Something happened over the lunch hour that I need to think about and to discuss with the lawyers.”
The judge asked the jurors not to discuss the issue. A publication ban prevents any further information from being reported. The trial is scheduled to resume on Thursday.
The proceedings on Wednesday began with Justice Carroccia addressing the 14-person jury, instructing them about their obligations as jurors, including that they must resist falling prey to any biases they may hold regarding sexual assault.
In her opening remarks, Ms. Donkers highlighted the judge’s orders to avoid rape myths.
“It’s important that you keep this instruction in mind, as the evidence that we anticipate you will hear in this case may not match up with expectations you have about what a sexual assault is or looks like.”
The Crown said that her first witness would be London Police Detective Tiffany Waque, who was expected to present video surveillance from the night of the alleged offence. The footage was taken from a London bar called Jack’s, which is where E.M. encountered some of the accused players.
Court heard that, at the bar, E.M. consumed eight drinks and then shortly after 1:20 a.m. on June 19, 2018, she left Jack’s with Mr. McLeod.
Ms. Donkers said the two of them had consensual sex at the Delta Hotel in room 209, but that after this encounter, “the atmosphere in the room changed.”
It is alleged that E.M. noticed Mr. McLeod was on his phone, inviting others to the room.
The jury, Ms. Donkers said, will see a copy of those text messages, including one that read: “who wants to be in a 3 way quick. 209 – mikey.”
Ms. Donkers said that the jury will also hear that Mr. McLeod went into the hallway and invited others into his room, where E.M. was laying naked.
“There were up to 10 men inside this standard-sized hotel room at different points in the night,” Ms. Donkers said.
The Crown said that E.M. felt “drunk, surprised” by what was happening and “uncertain how to react.” Over the new few hours, various sexual acts took place between the players and E.M.
“You will hear from some witnesses that, at different times in the night, [E.M.] was offering to perform sexual acts or was asking whether anyone was going to have sex with her,” Ms. Donkers said.
The Crown said that E.M. will explain to the jury that she was going along with what she felt was expected of her, because she was “drunk, uncomfortable” and didn’t know what would happen if she didn’t.
Ms. Donkers said that the jury will hear that each of the five players engaged in sexual acts with E.M. without her voluntary agreement. Mr. Dubé is accused of slapping E.M.’s naked buttocks while she was engaged in a sexual act with another player. Mr. Foote “did the splits over [E.M.]’s face while she lay on the ground, grazing his genitals over her face.”
The Crown also explained the second charge against Mr. McLeod, saying this relates to the allegation that Mr. McLeod “assisted and encouraged” his teammates to engage in sexual acts with E.M., while knowing she had not consented.
E.M. did not say “no” to the acts, Ms. Donkers said, nor did she attempt to physically resist. However, E.M. will tell the jury that she felt she had no choice, Ms. Donkers said. She was 20 years old, intoxicated and in a room with many large men whom she did not know. The players, Ms. Donkers said, were “speaking to each other as if she were not there” and were telling her to do certain things.
“On occasion, she tried to leave the room, but the men coaxed her into staying,” Ms. Donkers alleged.
The Crown also addressed the existence of two brief videos taken that night, in which E.M. can be seen saying statements such as “it was all consensual.” Ms. Donkers noted that Justice Carroccia will explain that consent must be given for each sexual act at the time it is happening.
To close, Ms. Donkers said that the jurors will also hear about what happened after E.M. left room 209 early that morning. The woman was in tears and phoned a friend. After police were called, text messages were exchanged between E.M. and Mr. McLeod in which the player told her: “what can you do to make this go away?” the Crown told court.
Ms. Donkers said there was a group chat between players, in which discussions were had about “making sure they all said the same thing to investigators.”
“Finally, we expect you will hear evidence about individual phone calls made by Dillon Dubé and Callan Foote asking some of their teammates to leave out what they had each done to [E.M.] when describing what had taken place in the hotel room,” Ms. Donkers said.
The prosecution’s evidence has not been tested in court. The players’ defence counsel will lay out their version of events later in the trial.
Canada’s junior hockey team won the world championship in 2018. That June, Hockey Canada – the governing body for the sport in Canada – held a gala honouring the players in London. Afterward, many members of the team went out celebrating downtown. The sexual assault is alleged to have occurred that night.
An initial investigation from London police was closed without charges in 2019, but the file was reopened after a wave of national outrage surfaced when the case became public three years later.
In 2022, TSN reported that Hockey Canada had quietly settled a lawsuit brought forward by the complainant. Hockey Canada entered the settlement without the players’ knowledge or involvement.
The Globe and Mail then revealed that Hockey Canada had been using a so-called National Equity Fund, a pool of money collected in part through registration fees, to pay out settlements to sexual-assault complainants.
At the time they were charged 15 months ago, 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 Ambrì-Piotta.