Crown attorney Heather Donkers, left, and Justice Maria Carroccia in a courtroom sketch of the Hockey Canada trial.Alexandra Newbould/The Canadian Press
David Butt is a Toronto-based criminal lawyer.
The Crown and defence lawyers have made their final arguments in the Hockey Canada trial. Next comes the verdict, which will force the judge to weigh competing interpretations of events that in many cases are not in dispute.
A court in London, Ont., heard evidence for nearly two months in the trial of five former members of the Canadian world junior team, who are accused of sexually assaulting a woman in a hotel room in 2018.
Much of the trial focused on a central question: Did the woman, known publicly as E.M., consent?
Sexual activity without consent is a crime. In this instance, sexual activity clearly took place, so the key issue is whether the complainant consented. Consent is a state of mind, which is invisible. We’re left to divine someone’s state of mind by considering their words and actions, inferring from those words and actions whether they consented.
Lawyers making final arguments are a little bit like historians. In this case, they have minutely dissected the evidence of historical events in that hotel room as they drew conclusions about whether the complainant consented to all the sexual activity that took place.
But lawyers are not just detached, academic historians. They are advocates for their side of the debate, in a heated adversarial courtroom.
The defence lawyers say the complainant’s story began as an “understandable white lie” to her mother that later snowballed out of control. They say she enthusiastically consented and only regretted it later; that she had an easy opportunity to leave the hotel room but chose to stay for more sex; and that she lied to make piles of cash in a civil suit.
The Crown prosecutor, working with the same historical evidence, constructs a very different narrative. The Crown argued that the complainant should be believed when she said she did not consent. Also crucial is the Crown’s argument that the complainant appeared to consent only because she felt intimidated in a room full of men, acquiescing as the safest choice in the moment. And the Crown also used the same tactic as the defence: The hockey players are lying, concocting a false narrative after the fact to save their bacon.
There are two distinct overarching themes in the final legal arguments. The first is simple: Each side is saying the witnesses for the other side are liars. That is a common, and commonly necessary, legal argument in many trials. But even if elegantly dressed up in legal language, it has the sophistication of grade-school playground accusation and counteraccusation.
The issue of consent is key to the trial of five former members of Canada’s 2018 world junior hockey team. Globe and Mail reporter Robyn Doolittle and Standards Editor Sandra E. Martin discuss the issue.
The Globe and Mail
The second theme is far more intriguing and nuanced: How deep below the surface do we delve to arrive at truth?
The defence points to a video clip in which one of the players asks, “You’re okay with this, though, right?” and the complainant responds, “I’m okay with this.” Case closed, win for the defence, right? No, says the Crown, what does “this” refer to? Some of the acts? All of the acts? Does the word “though” suggest some problem with the complainant consenting? Does it suggest she had just expressed some concerns about what was going on? If not, the Crown asks, why use the word “though?” And why, asks the Crown, was it necessary to make that video in the first place? Who makes consent videos when having sex? One looming answer is, people who are either seriously worried they just did – or could do – something non-consensual. You don’t have to try to dig yourself out of a hole you’re not in.
The two sides are presenting different visions of how deep to dig for the truth around that video. One side says just watch; it speaks for itself. The other says dig deeper and think hard about what is not in the video, because what is not there is more important than what is. This is a principled debate about historical reconstruction in a courtroom, and about how much digging into what really happened is enough to support solid conclusions.
Another key area of the lawyers’ final arguments that highlights this dichotomy between what is on the surface and what may be going on below is the complainant’s apparent acquiescent participation in multiple sex acts. The defence argues this acquiescence shows the complainant consented.
While that argument may have an intuitive, common-sense appeal, the Crown says it’s not so simple.
Those experienced in criminal law will tell you that power imbalance is omnipresent in sexual violence; indeed, sexual violence is less about sex than it is about power. So, what does a powerless person do out of self-preservation? They go along with what they don’t want to go along with, because they perceive the alternative to be worse.
And so, argues the Crown, a lone female, impaired at least to some extent by alcohol, in a hotel room with multiple athletic males, sees an “oppressive” situation spinning out of her control, feels powerless to stop it, and therefore without consenting nonetheless goes along out of a sense of self-preservation.
Does this, likewise, have intuitive, common-sense appeal? Again, yes, for anyone who has ever gone along with the wishes of the more powerful in any social context.
Historical reconstruction of this kind is anything but an exact science. Therefore, the judge will have to weigh in on the methodology issue to pass sound judgment on that all-important but invisible question of consent in the mind of the complainant.
The trial was scorching adversarial combat, no doubt wrenching for the complainant and accused alike. The lawyers’ final arguments are a methodological wrestling match.
And now, the judge is left with two theories about what really happened in that room, based on principled differences in methodology – namely, how deep to dig.