Hockey Canada sex-assault trial won't consider 2022 statements told to investigator

Globe and Mail

20-05-2025

On Oct. 1, 2022, Michael McLeod walked a Hockey Canada investigator through his version of what happened on the night that he and some of his teammates are alleged to have sexually assaulted a woman at a downtown hotel in London, Ont., four years earlier.
The investigator, a Toronto lawyer named Danielle Robitaille, asked him questions about when he first met the complainant – a woman known only as E.M. because of a publication ban – at a bar called Jack's.
In Mr. McLeod's telling, E.M. was one of a number of girls hanging around the players on the dance floor. He told Ms. Robitaille they hit it off. He bought her a drink. She bought him one. 'This kept happening,' he said.
At one point, they walked over to a sidebar, where a representative from Nike was buying 'Jägerbomb' drinks – a mix of red bull and Jägermeister. Mr. McLeod told Ms. Robitaille he saw E.M. take three Jägerbombs.
Shortly after, they decided to go to the bathroom, but E.M. slipped and fell, getting covered in beer before she got back up, Mr. McLeod said. He told Ms. Robitaille he thinks she slipped because the floor was wet, not because she was drunk.
The fall was a brief moment in the narrative of the night, but one that has become a point of contention at the players' criminal trial and an example of inconsistencies that have emerged in the case. Mr. McLeod denied seeing the woman fall when he first talked to police in 2018, according to the Crown, and several of the players' defence lawyers pressed E.M. during cross-examination about whether Mr. McLeod witnessed the fall.
Mr. McLeod, Carter Hart, Alex Formenton, Dillon Dubé and Cal Foote are each accused of sexually assaulting E.M. in the hotel room. Mr. McLeod faces a second charge of being a party to sexual assault. The men have all pleaded not guilty and the trial is expected to continue in London for several more weeks.
But the judge hearing the case, Justice Maria Carroccia, won't be able to consider Mr. McLeod's statement to Ms. Robitaille, which was ruled inadmissible during pre-trial motions. Nor will she have access to what two of the other accused players – Mr. Formenton and Mr. Dubé – told Ms. Robitaille or be able to see what the Crown has identified as inconsistencies between those statements and what the players told police.
A different judge hearing pre-trial motions ruled that the way Ms. Robitaille and Hockey Canada obtained the players' statements – by threatening them with a lifetime ban and publicity if they didn't co-operate – was coercive and that allowing them into evidence would violate the players' fair trial rights. The judge noted Hockey Canada had told police it would waive solicitor-client privilege, and once the organization received a request from police to hand over its investigative file, Ms. Robitaille cancelled interviews in 2022 with Mr. Hart and Mr. Foote.
In the fall of 2022, when Ms. Robitaille interviewed Mr. McLeod, Mr. Formenton and Mr. Dubé, Hockey Canada was under intense public scrutiny.
Six months earlier, in the spring of 2022, Hockey Canada had settled a lawsuit with the complainant without the players' knowledge. Ms. Robitaille later said in a pre-trial hearing that she used the woman's statement of claim to challenge some of the players' previous assertions. 'That's when I obtained, in my view, more truthful versions from the players,' Ms. Robitaille said.
Last Friday's decision by Justice Carroccia to dismiss the jury and proceed with the case against the five accused players by judge alone, lifts the publication ban on a trove of documents, including Ms. Robitaille's interviews with three of the accused.
The notes from those interviews, contained in a 214-page document, are in most cases handwritten summaries, none of which have been tested in court. Lawyers representing these players declined to comment on their contents.
Other apparent inconsistencies revealed in the documents include that Mr. Dubé told Ms. Robitaille that he slapped E.M.'s buttocks, though he did not mention this to police, the Crown told a pre-trial hearing last year. The Crown also argued in pre-trial hearings that the transcripts include several discrepancies between what Mr. Formenton told the investigator and what he told police. They also show that he returned for a second interview with Ms. Robitaille to correct information he told her.
None of that information can come into the trial.
Crown prosecutor Meaghan Cunningham argued in a pre-trial hearing last fall that she should be able to use the Hockey Canada interviews to challenge what the players told police and what they could say at the trial if they choose to testify.
'This is really about whether the accused, if they choose to testify, should be able to say whatever they want on the stand with impunity, knowing they can't be confronted with what they said previously,' Ms. Cunningham said. 'The credibility and reliability of the accused, should they choose to testify, will be of central importance to this trial.'
Ms. Cunningham seized on Mr. McLeod's varying accounts of the fall as an example of why the interview notes should be admitted.
The handwritten notes from Mr. McLeod's interview with Ms. Robitaille show that Mr. McLeod acknowledged seeing E.M. stumble near the bar bathroom.
The notes say he said that E.M. 'slipped, fell back' but that she only 'had three drinks, didn't seem drunk.'
Ms. Cunningham asserted that Mr. McLeod left this out when police spoke to him years earlier. 'He denied seeing her fall,' said Ms. Cunningham. 'It was specifically put to him, and he said 'not that I saw.''
Earlier this month, E.M. testified at trial that she may have had 10 or more drinks that night. Mr. McLeod's lawyer, David Humphrey, was among several defence lawyers who questioned her about apparent inconsistencies between the various statements she had provided over the years about the fall.
'I'm going to suggest, Mikey was not there any time you fell,' Mr. Humphrey said.
In the pre-trial hearing, Ms. Cunningham also argued that the trial should hear what she regarded as a key piece of evidence against Mr. Dubé.
In Mr. Dubé's interview with Ms. Robitialle, he told Ms. Robitaille he 'slapped her (E.M.) on bum once or twice,' according to the interview notes. He also conceded that he 'maybe' touched E.M.'s bum with a golf club that he had been holding in the room that night.
Ms. Cunningham told the court last fall: 'This is one of the acts that the Crown says would satisfy the elements of sexual assault.'
E.M. has testified that she was scared when players began showing up at the hotel room and she felt she had no choice but to go along with what they were saying. She told the court that at one point, someone mused about putting golf balls and a golf club inside of her.
Prosecutors also noted during pre-trial hearings that Mr. Formenton's interviews with Ms. Robitaille contained 'many material differences' in his accounts to authorities.
For example Mr. Formenton appears to have given Hockey Canada two interviews four days apart where he gave different versions of the truth.
Notes say that on Oct. 14, 2022, Ms. Robitaille asked him whether E.M. was slapped in the hotel room or hit with golf clubs. 'Didn't see anyone slap E.M.,' Mr. Formenton was noted as saying. No one was wielding golf clubs, he said.
Mr. Formenton arranged to sit down again with Ms. Robitaille days later, saying that he wanted to correct the record.
'Dubé walked up and tapped her on the butt and walked away,' the notes say he told Ms. Robitaille this time. 'It was a tap but loud enough to hear.'
Mr. Formenton said he saw Mr. Dubé hold a golf club and swing it toward E.M. when she was on all fours. 'I did not see contact with EM + club but saw Dubé held golf club in right hand and made putting practice motion and swing towards her butt.'
The player said he had been overwhelmed and didn't want to throw Mr. Dubé under the bus, according to the interview notes. He acknowledged that Mr. Dubé had phoned him and asked him not to mention the golf club.
When speaking to Ms. Robitaille the players each denied assaulting E.M. But the notes and transcripts from Ms. Robitaille's interviews also include other details not previously known about what the players have said happened that night.
For example, Mr. Formenton said he noticed E.M. crying at the end of the night, but it was because she worried she wasn't pretty enough.
Ms. Robitaille told Mr. McLeod, 'We're hearing that you were directing players to have sex with' E.M., which he denied. She asked Mr. Dubé whether Mr. McLeod had said 'you next.' Mr. Dubé's response is unclear from the notes.
Court has also heard that a day after the alleged assault, Mr. McLeod found E.M. on Instagram, they exchanged numbers, and began texting. In those messages he pressured her to make the police investigation go away.
'You said you here having fun??' he wrote.
'I was ok with going home with you, it was everyone else afterwards that I wasn't expecting,' E.M. wrote back. 'I just felt like I was being made fun of and taken advantage of.'
Ms. Robitaille asked Mr. McLeod about this exchange. She asked the player: if what you're saying is true – that E.M. is the one who asked him to invite his teammates to the room – why didn't he correct her in the text message? Why not say: 'it was your idea?'
According to the note of the interview, Mr. McLeod told Ms. Robitaille that he was just trying to get it – the police investigation – to stop. He told the Hockey Canada investigator that E.M. hadn't been drunk and she was consenting.