Judge addresses consent videos recorded by Michael McLeod

New York Times

2 days ago

All five members of Canada's 2018 World Junior hockey team have been found not guilty of sexual assault Cole Burston / Getty Images
LONDON, Ont. — Five members of Canada's 2018 World Junior hockey team were found not guilty of sexual assault on Thursday, ending a months-long trial that has garnered national attention since it began in April.
Michael McLeod, Carter Hart, Alex Formenton, Dillon Dubé and Cal Foote were acquitted of all charges by Ontario Superior Court Justice Maria Carroccia on Thursday.
All five players had been charged with sexual assault in connection to an alleged incident in June 2018 in which a woman known publicly as E.M. — her identity is protected by a publication ban — said she was sexually assaulted over the span of several hours in a London, Ont., hotel room. The players were in town for a Hockey Canada event celebrating their victory at the World Junior championships earlier that year. McLeod had also been charged with being a party to the offense.
In her decision, Justice Maria Carroccia said the Crown had not proven its case, and that she did not find the evidence of the complainant 'credible or reliable.'
'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,' Carroccia said earlier in the day.
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All 5 players found not guilty in Hockey Canada sexual assault trial
LONDON, Ont. — Justice Carroccia also spent some time recapping what was said in the consent videos recorded by Michael McLeod that night in London.
In the first video, E.M. says, "I'm OK with this." In a second, she said, "It was all consensual."
Carroccia says E.M. did "not display any signs of intoxication' in the videos and had 'no difficulty speaking." E.M. alleged in court that, although she said it was all consensual, that is not how she felt at the time.
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Hockey Canada sexual assault trial is over; decision coming July 24
LONDON, Ont. — Justice Carroccia is continuing to go over evidence and highlighting inconsistencies in E.M.'s statements.
The judge says E.M. initially identified Sam Steel as one of the players she had performed oral sex on in the hotel room in statements to police in 2018. Carter Hart was later identified by someone else as that person. This was previously reported as part of Megan Savard's cross-examination of E.M. in May.
LONDON, Ont. — Consent has been a major focal point in the eight-week trial. The Crown argued that E.M. did not voluntarily consent to any of the specific sexual activity and that once men began arriving in the room, E.M. found herself in a 'highly stressful' and 'unpredictable' situation that caused her to feel fear.
As part of her reasons — that are still being read in the courtroom at this time— Carroccia said, "in this case, I have found actual consent not vitiated by fear."
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Hockey Canada sexual assault trial is over; decision coming July 24
LONDON, Ont. — Richard McLeod, Michael McLeod's father who has sat through the entire trial, leaned forward and put his face in his hands in apparent relief as Carroccia said she did not find E.M. "credible or reliable."
LONDON, Ont. — In reading her decision, Justice Maria Carroccia said, "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 is now going over all the evidence of the case and has not made an official verdict at this time.
LONDON, Ont. — Carroccia just announced that she does not find E.M.'s account reliable and will now explain her reasoning.
"I conclude that the Crown cannot meet its onus" on any of the charges, Carroccia said.
LONDON, Ont. — Justice Maria Carroccia, after some minor housekeeping, began recounting the case at 10:24 ET, laying out the events of the night leading up to the events in question and summarizing the cases of the prosecution and players alike. Peter Power / Getty Images
LONDON, Ont. — Proceedings are set to begin from the 14th floor of the Ontario Superior Court house.
Reporters and members of the public alike, beyond a small number in the primary courtroom, are scattered throughout the building and will monitor the sentencing via video feed from "overflow" rooms.
Each of the five defendants, along with their representatives, is seated at their own table in the courtroom. Michael McLeod, the only player charged on two counts, is seated closest to Justice Maria Carroccia.
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Hockey Canada sexual assault trial is over; decision coming July 24
By Katie Strang and Dan Robson
All five defense teams were given the chance to put forth final reply submissions and focused on a variety of aspects of the case.
David Humphrey, attorney for McLeod, argued that the Crown was manipulating evidence, distorting the timeline and jettisoning arguments that were inconsistent with their arguments.
Riaz Sayani, Hart's attorney, largely focused on what he argued was the Crown's misapplications of law, including invoking trauma principles for circular reasoning and 'bootstrapping' information to augment their case.
Hilary Dudding, attorney for Formenton, argued that myth-based stereotypes should not be applied to defense arguments, nor for Crown positions. She cautioned the judge against accepting false binary propositions and to instead allow for the possibility that a woman could be enthusiastic and consenting within the environment the defense describes without it being characterized as 'bizarre' or 'odd.'
Lisa Carnelos, attorney for Dubé, addressed the contact her client had with E.M.'s buttocks, calling it 'playful' and arguing that the 'Crown has not disproved that she was consenting.'
'It was playful, possibly foreplay,' Carnelos said. 'And in no way looked to be harmful or with the intention to be abusive.'
Julianna Greenspan, who represents Foote, took aim at the Crown, criticizing what she said was an earlier suggestion that further evidence exists that was not permitted to be considered in court. Without a jury, those documents are available to the public. 'That was a factually wrong and unfair comment to make,' Greenspan said.
She also took issue with a slide shown earlier in the day that indicated there was 'no evidence from Callan Foote.' Had this still been a jury trial, Greenspan said, she would have called for mistrial, even at this late stage — calling the slide 'illegal.'
'It runs contrary to the Canada Evidence Act, which states failure of the accused to testify shall not be made the subject of comment by counsel for the prosecution,' Greenspan said.
She further suggested that the slide was purposefully included to influence the media.
'Everyone in this courtroom knows the attention in this case has garnered from the media and public,' Greenspan said. 'The Crown, I submit, has throughout this trial been preoccupied with litigating the public opinion through the media. This is an upsetting final example on behalf of my client.' The Canadian Press via AP
By Katie Strang and Dan Robson
In closing submissions, Crown attorney Meaghan Cunningham took issue with the 'consent videos' filmed by McLeod as exculpatory evidence, arguing the verbal prompts by McLeod in the second video — beginning the video with 'Say it,' and subsequently interjecting 'What else? — illustrated that they were neither evidence of E.M. providing consent nor evidence of McLeod taking a reasonable step to ascertain consent.
Cunningham argued that the videos instead support E.M.'s testimony — that McLeod was 'hounding' her to say the activity was consensual, which E.M. said was not a reflection of how she felt at the time.
'She's simply agreeing with him when he's making it clear what he wants her to say,' Cunningham said.
Crown attorney Heather Donkers presented Justice Maria Carroccia with a path to conviction for each defendant. The Crown highlighted credibility and reliability issues with the accused and asked the court to find that E.M. did not have a choice so she could not have provided consent.
Additionally, Donkers detailed how none of the defendants took reasonable steps to ascertain consent, which the Crown argued demonstrated their 'recklessness' or 'willful blindness' on the consent issue.
The Crown incorporated case law demonstrating the need for 'greater care' exercised with those 'reasonable steps' in situations such as when the accused is unfamiliar with the complainant or the complainant is intoxicated or vulnerable. The Crown argued that all these caveats applied to the circumstances within Room 209 that night. (Dubé also admitted in his 2018 police interview that he was, at one point, holding a golf club, which represents an additional factor to the 'greater care' requirement with respect to his specific case, Donkers said.)
Cunningham concluded the Crown's case by referring to a statement E.M. made near the end of her seven-day cross-examination, in which she described being objectified and laughed at.
'Literally, any one of those men could have stood up and said, this isn't right. And no one did. No one noticed that,' E.M. said, while being cross-examined by Julianna Greenspan. 'No one thought like that. They didn't want to think about if I was actually OK or if I was actually consenting.'
By Katie Strang and Dan Robson
With the Hockey Canada trial over and a decision from Justice Maria Carroccia as to whether guilt was proven beyond a reasonable doubt to be announced today, this has become a touchstone for perspectives on sexual assault, misogyny and consent. The 'she said, they said' nature of the evidence has also dragged the insular and protective culture of hockey into an uncomfortable spotlight.
Read more below about why judgment can be rendered regardless of the outcome.
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Legal decision for the 'Hockey Canada 5' won't come for weeks, but judgment can be rendered
By Katie Strang and Dan Robson
The prosecution described Michael McLeod as the 'architect' of the 'group sexual activity' at the center of the Hockey Canada sexual assault trial and said he told 'outright lies' to portray the complainant as the aggressor in the sexual interactions of the night and advance a 'false narrative.'
Attorney Meaghan Cunningham provided Justice Maria Carroccia an outline of the Crown's argument, showing a power point in a closing submission last month that she said will demonstrate E.M. did not voluntarily agree to the charged sexual acts of the night. Cunningham began that presentation by telling Carroccia that she intended to prove E.M. did not want to engage in group sex and that McLeod repeatedly lied about his role as the orchestrator of the alleged incident.
McLeod, Carter Hart, Alex Formenton, Dillon Dubé and Cal Foote are all charged with sexual assault. McLeod is also facing a second charge for 'being a party to the offense' for what the Crown has asserted was his role 'assisting and encouraging his teammates to engage sexually' with E.M.
All five players pleaded not guilty.
Read more below.
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Prosecutor calls Michael McLeod the architect of Hockey Canada sexual assault Cole Burston / Getty Images
LONDON, Ont. — Carter Hart was the final defendant to arrive at the courthouse.
Hart, formerly a goalie for the Philadelphia Flyers, was dropped off in front of the building, climbing out of a black Chevrolet Suburban.
Hart, like his fellow defendants, was greeted with loud boos and chants.
LONDON, ONT. — Michael McLeod, the only player facing two charges, has arrived.
He approached the building from a side opposite a growing, vocal group of protestors.
Three men supporting the players, two of whom held signs, waited nearby at the courthouse steps.
They stood across from a much larger, much louder group of people — roughly 100 — supporting E.M. and sexual assault survivors.
Cal Foote arrived shortly after McLeod.
By Katie Strang and Dan Robson
After a jury was discharged in the Hockey Canada sexual assault trial, a publication ban on previously unreported details from the trial was lifted.
The highly publicized trial has been marred by a series of unexpected incidents — including an attempt by a member of the public to locate the Crown's central witness, concerns that smart glasses were being used to illegally record the proceedings, and aggressive interactions with the media.
More on what the jury didn't hear at the link below.
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What the jury didn't hear in the Hockey Canada sexual assault trial Cole Burston / Getty Images
LONDON, Ont. — Alex Formenton was the first defendant to arrive at the courthouse, along with his defense team, led by Daniel Brown.
More than 50 protestors supporting E.M. and sexual assault survivors chanted and booed Formenton and his party as they approached the building.
First, and most importantly, the switch to a judge-alone trial meant Justice Carroccia will render the verdicts on each of the charges rather than providing instruction and guidance on the law to a group of jurors.
According to criminal defense lawyer Nikolas Lust, judges interpret the law differently. Carroccia, for example, is a former criminal defense attorney who earned judicial appointment in June 2020. Lust asserted that does not necessarily mean the five players will be acquitted. But, he said, 'defense lawyers who become judges are just so much more aware of the law and the nature of sexual assaults than your average person.'
One fairly consistent trait among judges, however, is that they are 'not as swayed by narrative and emotions in the same way that a jury is,' Lust said.
Another significant difference is that judges will often provide a written opinion that details their reasons for arriving at a given decision. That differs from a jury trial, where jurors come back from deliberations and provide a verdict, but no explanation.
'Whatever the result is, people are going to know how it is that Her Honor got there,' Lust explained. Sean Gentille / The Athletic
LONDON, Ont. — Supporters of E.M and sexual assault survivors, holding signs and printed sheets of protest chants, have arrived outside the courthouse.
Protests aren't allowed in court. The protesters plan to reconvene once the verdicts are rendered and court is dismissed, and the expectation is that other protesters in support of the players will arrive ahead of the trial as well.
About 15 minutes before the courthouse doors were to open at 8:30 a.m. ET, the line for admission — comprised of both media and the public — was about 60 people deep.
A juror handed Justice Carroccia a note that read: 'Multiple jury members feel we are being judged and made fun of by (defense) lawyers Daniel Brown and Hilary Dudding. Every day when we enter the courtroom they observe us, whisper to each other and turn to each other and laugh as if they are discussing our appearance. This is unprofessional and unacceptable.'
Brown and Dudding categorically denied the jurors' accusations.
In arguing for the trial to continue in front of Carroccia alone, Megan Savard — attorney for Carter Hart — said the note was a worse form of jury tainting than the initial incident that led to a mistrial on April 25. In the legal arguments, which were previously covered by a publication ban, Brown and other defense attorneys referenced a 'chilling effect' that the allegations would have in court.
Brown said that his ability to make submissions, or even look at the jurors, would be impacted by the situation, impeding his and his counterparts' abilities to represent their clients fairly. Brown also told the judge that he believed that jurors might have been influenced by the dozens of protestors who have often gathered outside the courthouse and commentary on social media. (The court had heard previously that Carroccia made arrangements for the jury to enter the courthouse through a separate, private entrance).
Under the Canadian Charter of Rights and Freedoms, an accused has the right to be heard by an 'independent and impartial tribunal.' But according to criminal defense lawyer Nikolas Lust, it's 'an absolute possibility' that a jury could be affected by outside influences, despite rules against reading or engaging with anything having to do with the case.
'The case is being talked about everywhere. It's on YouTube, it's on Twitter, it is on Facebook, it's on TikTok,' Lust said. 'Maybe (a juror) saw something online about people taking issue with (Brown's) line of questioning and they developed some conscious or unconscious dislike of him.'
Carroccia told the court that, while she had not witnessed any inappropriate behavior by Brown or Dudding, it appeared to her that several members of the jury harbored negative feelings toward the defense.
'It is with reluctance that I have determined that the fairness of this trial has been compromised,' Carroccia said in her decision to discharge the jury to 'protect trial fairness.'