Canadian courts were largely impervious to the cultural forces brought about by #MeToo and stepping through their doors now is like passing through a time machine to an era where that reckoning on sexual assault and consent never happened.PHOTO ILLUSTRATION: THE GLOBE AND MAIL. SOURCE: GETTY IMAGES
The whole world changed in the near-decade between two of the most high-profile sexual assault trials in recent Canadian history. But inside the courtroom, it was as if no time had passed at all.
Outside, the world had been fundamentally reordered by a pandemic, by a reality TV star twice elected U.S. President, by the murder of a Black man by a police officer on a Minneapolis street, and by a series of sexual-assault allegations against a high-profile Hollywood film producer, which catalyzed a global reckoning with how we view, talk about, and confront sexual violence. The #MeToo movement was supposed to have marked the end of the era where lecherous men could blithely cop a feel behind a cubicle and expect female discretion, and the beginning of a new one where the public operates from the starting assumption of “believe all women.” And in many workplaces, schools and community spaces, things did change.
But Canadian courts were largely impervious to the cultural forces brought about by #MeToo, and indeed, stepping through their doors now is like passing through a time machine to an era where that reckoning on sexual assault never happened.
Judge acquits players, says prosecutors did not prove their case
The 2016 trial of former CBC broadcaster Jian Ghomeshi, who was charged with four counts of sexual assault and one count of choking, was held pre-#MeToo, when the public wasn’t quite as well versed on the meaning of consent as it is now. Yet many observers were still rankled by the confrontational approach that Marie Henein, Mr. Ghomeshi’s defence lawyer, took during cross-examination of complainants during the trial.
Ms. Henein suggested the three women who took the stand were lying; she implied that their behaviour after the alleged assaults – sending flirtatious e-mails, for example – invalidated their claims that the encounters were not consensual; and she teased that they had ulterior motives for coming forward, including vengeance and publicity. It was an abrasive approach, but an effective one. In the end, Mr. Ghomeshi was found not guilty on all charges, though his career never recovered.
The issue of consent was raised in the trial of five former members of Canada’s 2018 world junior hockey team, who were accused of sexually assaulting a woman in a London, Ont., hotel room in 2018. Robyn Doolittle and Standards Editor Sandra E. Martin discuss the issue, particularly a video recorded by one of the accused.
The Globe and Mail
Nearly 10 years later, at the sexual-assault trial of five former world junior hockey players, the complainant known publicly as “E.M.” was subjected to much of the same. Defence lawyers outright accused her of lying about her willingness to perform certain sex acts. They implied that her behaviour during the night in question, when she admitted to adopting the persona of a “porn star,” for example, invalidated her claim that the sexual acts she engaged in were not consensual. And they teased that she had ulterior motives for coming forward and sticking to the story she told police, including to preserve money garnered in an earlier settlement with Hockey Canada, and to cover up the fact that she cheated on her then-boyfriend. On Thursday, the men in that case were found not guilty, too.
Tropes that were supposed to have died with movie mogul Harvey Weinstein’s career were as alive in that Canadian courtroom in 2025 as they were in the Ghomeshi trial in 2016. In both cases, defence lawyers flirted with notions about how victims of sexual assault are “supposed” to behave; they trafficked in the caricature of women who levy false accusations because they regret a consensual sexual encounter, as well as the one about complainants seeking some sort of personal benefit by coming forward.
But what those lawyers also did, importantly, was their jobs.
In these sorts of cases, for which there is no physical evidence to make a determination on consent, the only real strategy available to the defence is to undermine the credibility of the complainant. Defence lawyers must pursue that ruthlessly, regardless of whether their approach runs afoul of the current dogma about appropriate ways to talk about sexual assault. For the public it’s uncomfortable to watch, and for complainants it’s agonizing to experience. But it’s also integral to the proper functioning of our justice system. That’s why #MeToo might have changed our culture, but it simply could not change our courtrooms.
What to know about the Hockey Canada verdict and fallout
The case against former world junior hockey players Michael McLeod, Carter Hart, Alex Formenton, Dillon Dubé and Cal Foote – all of whom pleaded not guilty – stems back to an encounter the men had with the complainant in June, 2018, after a night out celebrating their world junior championship win. E.M. testified that she met Mr. McLeod at a London, Ont., bar where she was having some drinks with colleagues. She said that she went with him to his room at the Delta Armouries hotel, where they had consensual sex.
After that, according to E.M., other men started appearing in the room (the court saw a text message from Mr. McLeod where he asks his friends, “Who wants to be in 3 way quick”), where she said she felt pressured to perform oral sex on several of them. She described how one man suggested putting golf balls and a golf club in her vagina; she said another one did the splits over her, putting his genitals in her face. Several of them, according to her testimony, spit on her and slapped her buttocks. E.M. told the court that she felt “intimidated” and “outnumbered” and said that she was operating on “autopilot,” though she did not verbally say “no” or tell the men to stop.
Whether E.M. actually said “no” doesn’t matter according to Canadian law on consent, however. In the landmark 1999 Supreme Court decision in R v. Ewanchuk, the Court held that “no defence of implied consent to sexual assault exists in Canadian law,” and that “to be legally effective, consent must be freely given.” In other words, an absence of “no” does not necessarily mean “yes.” The circumstances of R v. Ewanchuk were arguably more straightforward, however, than those involving E.M. and the hockey players in 2018.
In the Ewanchuk case, the complainant, who entered the accused’s trailer after a job interview, repeatedly said “no” to certain sexual advances, but did not say anything to others – a detail that the trial judge accepted as implied consent. In overturning that decision, the Supreme Court wrote that “the trial judge ought to have considered whether anything occurred between the communication of non‑consent and the subsequent sexual touching which the accused could honestly have believed constituted consent.” That’s because “honest but mistaken belief” in consent is a valid defence in sexual-assault cases in Canada.
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The defence lawyers in the Hockey Canada case dredged up whatever they could to demonstrate to the court why their clients believed E.M. was consenting on that night, and why the court should believe it now, too. (Though the onus was always on the Crown to prove non-consent, not the other way around.) They pointed to two short videos taken by Mr. McLeod in that hotel room: one, taken at 3:35 a.m., where E.M. is asked by a man off-camera if she is, “Okay with all this stuff,” and she responds, “Yeah, I’m okay;” and the second, taken about one hour later, where E.M., who is naked and covering herself with a towel, says, “It was all consensual. Are you recording me? K, good. You are so paranoid. Holy. I enjoyed it. It was fine. I’m so sober – that’s why I can’t do this right now.”
The videos did not necessarily prove that sexual assault did not occur; in Canada, consent must be voluntary and ongoing, meaning even if E.M. consented in that moment, it did not necessarily mean she consented to a different sexual act in another. But for the defence, they helped to establish why the players would have believed that E.M. wanted to engage in the activities that night.
The defence, of course, relied on more than just the videos. For seven days of cross-examination, lawyers grilled her on inconsistencies between what she told police in 2018 and Hockey Canada for its own investigation in 2022. They challenged her on why she didn’t tell her best friend about what happened to her that night. They questioned whether she was actually as drunk as she later claimed, showing the court video from the bar that night of her walking capably in high heels.
The trial of five former members of Canada’s 2018 world junior hockey team, who were accused of sexually assaulting a woman in a London, Ont., hotel room in 2018, raised questions about how news organizations cover such cases.
The Globe and Mail
During his cross-examination, Dan Brown, lawyer for Mr. Formenton, got E.M. to say “it could be possible” she pulled his client into the bathroom where she claimed he sexually assaulted her. At another point during cross-examination, she admitted it was possible she demanded players have sex with her, which she explained as her way of coping with the situation. David Humphrey, lawyer for Mr. McLeod, seized on that moment during his closing arguments. “It’s preposterous to say, ‘Somehow I came up with this concept that the way to get out of the room is to invite everybody to have sex with me,’” he said.
To outside observers, the defence’s approach might have looked truculent and uncouth: the opposite of trauma-informed. But it did what it was designed to do, which was to establish, in the words of Mr. Humphrey, that E.M. was “simply not an honest or reliable witness.” It raised reasonable doubt, which was enough to garner an acquittal. Ontario Superior Court Justice Maria Carroccia said exactly that in reading her decision: “I do not find the evidence of E.M. to be either credible or reliable.”
This case, like many cases involving consent, essentially boiled down to “he said/she said.” There was no rape kit, no physical signs of struggle, no objective evidence of consent or lack thereof. The defence’s case therefore had to focus on the credibility of the accuser, whose every action, behaviour and comment had to be ruthlessly dissected, at length, to properly serve their clients. Justice Carroccia made a point of noting in her decision that she believes the time spent in cross-examination of E.M. was “entirely appropriate.”
But courtrooms are not free-for-alls, and indeed, there are some protections in law that try to mitigate the trauma that a trial can inflict on a complainant. Rape-shield laws, for example, which prohibit the use (in most cases) of a complainant’s sexual history as evidence in a sexual-assault trial have been in place for over four decades. Section 714.1 of the Criminal Code of Canada allows for witnesses to testify via videolink (as E.M. did in this case) under guidelines spelled out by the Nova Scotia Court of Appeal in 2017 in R. v. S.D.L.
In 2021, Canada passed Bill C-3, which mandates sexual-assault training for federally appointed judges. And in 2018, as a direct result of the Ghomeshi trial, the government passed Bill C-51, which amended the Criminal Code such that defence lawyers in sexual assaults trials can no longer surprise complainants with their own records in court, which is what Ms. Henein did when she confronted Mr. Ghomeshi’s accusers with the flirtatious e-mails they sent him after the alleged assaults.
Defence lawyers have argued that these “Ghomeshi rules” have deprived individuals accused of sexual assault of a vital defence tactic, and thus, their right to a fair trial. There is some merit to that argument, and the benefit is limited considering the records can still be put to complainants following an application to the court. It’s merely the element of surprise that’s gone.
When Bill C-51 was first introduced, the government said the changes would help “ensure that victims of sexual assault and gender-based violence are treated with the utmost compassion and respect.” But E.M.’s experience on the stand in this case has proven that demonstrably untrue– and not just because she was confronted with a parade of tropes about sexual-assault victims.
E.M. was made to testify for a total of nine days, during which she was mercilessly grilled by five different defence lawyers about an event she has described as profoundly traumatic. And in the end, not only are the men she accused of sexual assault walking free, but she walks away with potentially less public support than she had before. That’s something that Crown attorney Meaghan Cunningham warned her about ahead of charges being laid in 2022.
Opinion: Canada’s sexual-assault law is not the problem – it’s the application of it
According to documents obtained by The Toronto Star, Ms. Cunningham told E.M. there was a “real possibility that the current perception of what happened could change,” as media reports shift from telling just her side – which, for years, was just about the only publicly available information on the matter – to reporting the back-and-forth of cross examination in court. That shift in public perception happened after the Ghomeshi trial, and it seems to have happened again now.
All of that considered, perhaps our courts are simply unequipped to settle these ambiguous types of consent cases in a way that balances the rights of the accused, while preserving the dignity of complainants. Some sexual-assault survivors, in fact, have been pushing for Ontario to rescind its ban on restorative justice – a process that includes mediated conversations where the accused takes responsibility for his actions – out of a recognition that the traditional justice system invariably puts the rights of the accused over the welfare of alleged victims.
The system has to work that way; we have decided as a society that it is preferable that a guilty person walk free than send an innocent one to prison, which means that we always err in favour of preserving the rights of the accused, and assume they are innocent until proven otherwise. That’s why the notion that we must reflexively believe all women “has no place in a criminal trial,“ to borrow Justice Carroccia‘s words.
It’s also why, in cases where a decision hinges almost exclusively on the credibility and reliability of the complainant, the defence must be allowed to challenge an accuser even in ways that seem regressive, and even if it proves excruciating for the individual. That’s why #MeToo hit a firewall when it came up against the doors of a London, Ont., courtroom this year, and why it will – or ought to – for similar cases to come. There are some things social movements cannot, and should not, change.