Hockey Canada sex assault trial ends as Crown lays out why each player should be convicted

Toronto Star

a day ago

As the Crown wrapped up its closing arguments Friday at the high-profile trial of five professional hockey players accused of sexual assault, they ended with the complainant's own words from her marathon nine days on the stand.
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'My truth': What we heard from the Hockey Canada sex assault complainant in nine days of testimony
The jury has heard — in graphic detail — her allegations about what took place inside a London, Ont., hotel room in 2018.
News
'My truth': What we heard from the Hockey Canada sex assault complainant in nine days of testimony
The jury has heard — in graphic detail — her allegations about what took place inside a London, Ont., hotel room in 2018.
'They were objectifying me, they were literally in there laughing at me,' the woman had testified. 'Literally any one of those men could have stood up and said, 'This isn't right.' And no one did ... They didn't want to think about if I was actually OK, or if I was actually consenting.'
After hearing nearly six weeks of evidence and a full week of closing arguments from the five defence teams and the Crown, it's now up to Superior Court Justice Maria Carroccia to decide the guilt or innocence of Alex Formenton, Michael McLeod, Carter Hart, Dillon Dubé and Cal Foote, in a judgment set to be delivered July 24.
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The prosecutors and defence lawyers shook hands as the trial finally came to an end Friday afternoon at the London, Ont., courthouse, after having originally started in April as a jury trial, but is now a judge-alone case. Carroccia thanked the lawyers for the 'very professional manner' in which they handled the case, 'which we all know has garnered a lot of public attention.'
A pair of stills from videos showing the dance floor inside Jack's Bar in London, Ont., on the night of June 18-19, 2018, show the complainant with world junior team members Dillon Dubé, circled left, and Michael McLeod, right.
Ontario Superior Court Exhibit
All members of the 2018 Canadian world junior championship team — and most of them playing in the NHL by the time of their arrests last year — the five men stand accused of sexually assaulting the then-20-year-old complainant in a room at the Delta Armouries hotel in London in the early hours of June 19, 2018, while the team was in town to attend the Hockey Canada Foundation's annual Gala & Golf fundraising event.
The complainant had met McLeod at Jack's Bar and returned to his room where they had consensual sex, only for multiple men to come in afterward, some prompted by a group chat text from McLeod about a '3 way.'
The Crown has alleged that McLeod had intercourse with the complainant a second time in the hotel room's bathroom; that Formenton separately had intercourse with the complainant in the bathroom; that McLeod, Hart and Dubé obtained oral sex from the woman; that Dubé slapped her naked buttocks, and that Foote did the splits over her head and his genitals 'grazed' her face. Prosecutors have argued that the men failed to take reasonable steps to confirm the woman's consent to each act, and that she never made an 'affirmative, voluntary choice.'
A screenshot of a group chat involving members of Canada's 2018 world junior championship team.
Ontario Superior Court Exhibit
The Crown contends the complainant either didn't voluntarily consent, or her consent was cancelled by the fact she was scared and intimidated to be in a hotel room full of men she didn't know while she was intoxicated as well as naked after having had sex with McLeod. The defence, meanwhile, has argued that the complainant was consenting throughout the night and fabricated her version of events as she tried to make stick her allegations from a $3.5-million sexual assault lawsuit filed against Hockey Canada in 2022, which the sports organization quickly settled for an undisclosed sum.
The prosecution further alleges that through the use of a group chat, the players created a false narrative that the complainant was the aggressor and repeatedly demanded to have sex with men in the room — a Crown argument that has faced resistance from the judge. The Crown has also asked the judge to reject some of the testimony of their own player witnesses, something Carroccia described as 'interesting' on Friday.
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'Effectively, what you're saying is where it doesn't help the Crown, don't accept it, and where it does help the Crown, accept it,' the judge said.
On Friday, the prosecution finished its closing arguments by outlining its case for a conviction against each accused man.
'This is a unique case where, in the Crown's submission, no matter which facts you accept amongst the sometimes challenging puzzle of evidence, there is a clear path to conviction for each of the five accused,' Crown attorney Heather Donkers told Carroccia.
Michael McLeod: 'The one who orchestrated this whole sordid night'
'Mr. McLeod is the one who orchestrated this whole sordid night,' Crown attorney Meaghan Cunningham said Friday.
Michael McLeod arrives at court with his lawyers.
Nicole Osborne THE CANADIAN PRESS
'Knowing that (the complainant) had expressed no interest in, or willingness to engage in, sexual activity with anyone other than him, he then begins a campaign to bring men into the room to do that very thing.'
McLeod is the only accused man facing two charges — sexual assault and being a party to a sexual assault, for allegedly encouraging his teammates to engage in sexual activity with the complainant when he knew she wasn't consenting.
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In a 2018 police interview, he told a detective he received oral sex from the complainant and engaged in intercourse with her again before she left the hotel room, but omitted the fact he texted a players' group chat to come to his room for a '3 way,' as well as messaging others directly.
The Crown argued Friday that McLeod is one of three men the complainant testified she performed oral sex on while she was on a bedsheet on the ground, although she herself did not identify McLeod as one of the three. The Crown said there were no words spoken between McLeod and the complainant at that time to confirm her consent.
The Crown also asked that Carroccia accept that another instance of oral sex happened while McLeod was on the bed. To this, the judge pointed out that court heard testimony about the complainant getting up on the bed and placing McLeod's penis in her mouth without him actually doing anything — evidence that Donkers described as ambiguous and not an indication of consent.
'You can't possibly be saying that a woman who puts a man's penis in her mouth is not communicating that she wishes to,' Carroccia said in response.
This led to a back-and-forth between the judge and Crown attorney. 'That is what I'm saying,' Donkers replied. 'Otherwise, there would never be a sexual assault that involves oral sex.'
'That's not true,' Carroccia shot back, saying Donkers misunderstood the point. The judge then put it in the form of a question: 'If a man does nothing and a woman takes his penis and puts it in her mouth, he's committing a sexual assault without asking her if that's OK?'
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Donkers apologized. She explained the Crown position that doing the act doesn't communicate consent, but agreed that if the judge were to find it was 'one-directional entirely,' that may raise a doubt as to whether that particular allegation had been proven.
Donkers did not address at all the allegation involving intercourse, deferring instead to the Crown's brief written arguments. McLeod had told police he had hopped in the shower and the complainant came in with him and they had sex. In court, the woman testified about being tired by that point and that she felt it was a 'continuation' of the other sexual acts in the room — 'I didn't look at it as something I really wanted to do, just felt like one last thing I needed to do to go.'
The Crown argues in its written materials that there is no evidence McLeod took any steps to ascertain the complainant's consent.
As for being a party to sexual assault, Cunningham argued that McLeod can still be found guilty as long the judge concludes that a sexual assault happened in the room, regardless of whether any specific person is convicted. For example, she referred to the complainant's testimony of multiple men slapping and spitting on her.
The whole reason the men knew to come to the room was because of McLeod, Cunningham argued, and he ensured throughout the night that the sexual activity could continue by calming the complainant down when she became upset, or by telling other players in the room not to take out their phones to record anything.
McLeod made two cellphone recordings of the complainant; in one, she says 'I'm OK with this,' while in another, she says 'It was all consensual.' Cunningham argued the videos cannot be used as evidence of consent.
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'They are also not evidence of any reasonable steps taken to sincerely ascertain valid consent in law,' she said. 'At their highest, they're the kind of token, lip-service, box-checking that the Court of Appeal says is not a reasonable step.'
The first video doesn't actually establish to what the complainant was consenting and with whom, Cunningham said, while the second video was taken after the sexual activity and, the Crown highlighted, consent can't be given after the fact.
The complainant herself testified she was just saying what she thought the men wanted to hear.
Carter Hart: 'He could have talked to her'
The only accused man to testify in his own defence, Hart told the judge that in response to the complainant's demands for intercourse while she was on the ground, he asked for a 'blowie, meaning blowjob,' she said 'yeah' or 'sure,' moved toward him, helped pull down his pants, and performed oral sex about 30 seconds to a minute.
Carter Hart outside court with his lawyers.
Geoff Robins THE CANADIAN PRESS
Should the judge accept his account, Donkers argued he should have taken more steps to confirm the complainant's consent, given her obvious vulnerability. He could have taken her aside, asked for her name, her desires, her limitations, or whether this was something she truly wanted.
In response to that, Carroccia pointed out the testimony of the Crown's witnesses about the complainant demanding to have sex. 'You just said to me he could have talked to her to find out more about her wants,' Carroccia said, 'but if I accept the evidence from your own witnesses, she was saying what her wants were, correct?'
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Donkers said that the witnesses testified about the complainant demanding intercourse, not oral sex.
While Hart could only recall that instance of oral sex, he later said it was possible it happened again, after the Crown pointed out in cross-examination that McLeod told police he saw Hart receive oral sex twice.
The complainant herself testified about giving oral sex to about three men in quick succession, though she never identified Hart to the police, nor that she performed oral sex on him twice. Players Brett Howden and Tyler Steenbergen identified Hart and McLeod as two of the three, while Dubé identified himself to police as the third. Howden testified he believes he saw Hart receive oral sex twice while in the room.
'So I should accept their evidence that Carter Hart probably got oral sex twice, but then find they're mistaken about Dillon Dubé?' the judge asked.
'If they're watching Carter Hart getting oral sex twice, they blink and miss Dillon Dubé? I just don't follow that argument.'
Donkers countered that they might not have noticed Dubé because it happened so quickly.
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Alex Formenton: 'Not so ambiguous, is it?'
Formenton told police in 2018 that he followed the complainant into the bathroom after she had been demanding to have sex with men. There's a lack of evidence as to whether there was any conversation in the bathroom between the two, but Donkers argued that again, no steps were taken to confirm the complainant's consent before they had vaginal intercourse.
Alex Formenton and his lawyers.
Geoff Robins THE CANADIAN PRESS
But Carroccia had a question: What to make of Howden's testimony that he recalled that in response to the complainant's demands, Formenton said something along the lines of not wanting to do it front of everybody, and then he followed the complainant into the bathroom.
'Not so ambiguous, is it, in those circumstances?' Carroccia said. 'It's consistent with what she's offering, what she said, if I find that that was the sequence of events.'
The judge reminded Donkers that Formenton doesn't have to prove that scenario, but rather the onus is on the Crown 'to disprove that that's what happened.'
Donkers said the Crown doesn't have to prove or disprove 'any particular fact and issue beyond a reasonable doubt, what we have to prove is he's guilty of sexual assault.'
'I know that, Ms. Donkers,' the judge replied.
While the Crown has argued that the defence has engaged in myth-based reasoning when questioning the complainant's behaviour in the room, Formenton's lawyer Hilary Dudding countered that, in fact, the prosecution was doing that. The Crown's reasoning 'really implies that for a woman to be assertively asking for sex in a group scenario is so inherently bizarre and odd that it requires some explanation other than that woman is consenting,' Dudding said.
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'It's stereotypical thinking about what types of sex people like and don't like, what a woman might choose or not choose.'
Dillon Dubé: 'No chance for subjective consent'
Dubé acknowledged in his 2018 police interview that he briefly received oral sex from the complainant, but omitted the fact that he slapped her naked buttocks. He did admit to slapping the complainant once or twice to a Hockey Canada investigator in 2022, in a statement that was excluded from the trial due to the 'unfair and prejudicial' way it was obtained.
The complainant testified that multiple men were slapping her buttocks and that it hurt. The Crown argued that Carroccia should find Dubé slapped her twice — while she was on the ground after giving him oral sex, as witnessed by Steenbergen and on the bed while she was performing oral sex on McLeod, as witnessed by Howden.
Dillon Dubé outside court.
Geoff Robins THE CANADIAN PRESS
Dubé told police the oral sex happened in quick succession as the complainant performed on him, Hart, and McLeod — 'No chance for subjective consent,' Donkers said, but even if there was, it was cancelled by the complainant's fear of being in the room.
Donkers argued that Dubé only mentioned getting oral sex to police because he 'knew he could try and portray that as consensual, based on comments he says (the complainant) was making about sex,' while he didn't mention the slapping because he knew that went too far as there is 'absolutely zero evidence' that the woman consented to that.
'He could not have had any legitimate belief she had communicated a willingness to be touched on her buttocks, gentle or hard, it does not matter,' Donkers said. 'That belief would have had to come from the myth that just because she had agreed to other things or appeared to agree to other things, that she would be OK being slapped. That is not a defence in law.'
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Cal Foote: 'Amped up from a night of drinking'
It's undisputed that Foote did the splits over the woman, Donkers said, but what's disputed is whether he was naked from the waist down, over which part of her body he did the splits, and whether his genitals touched her face. Court heard that the spits was a 'party trick' Foote often did, including on the dance floor at Jack's earlier that evening in June 2018.
Cal Foote, centre, with his lawyers.
Nicole Osborne THE CANADIAN PRES
Steenbergen partially witnessed Foote doing the splits, but couldn't tell if he was clothed below the waist, while Hart was adamant that Foote was wearing clothes and he did not physically touch the complainant, whom Hart said was laughing.
The complainant 'viscerally testified' about someone doing the splits 'and having a penis in my face,' Donkers pointed out, although the complainant wasn't able to identify Foote.
Given that this was a hotel room full of men 'amped up from a night of drinking' and who knew sexual activity with the woman was the focus in the room, it is 'abundantly clear' that Foote was called to the room to engage with the woman sexually as well, and specifically by doing the naked splits over her body, Donkers argued.
'This extraordinary event of June 19 for them called for extraordinary measures, not just an ordinary party trick they had seen as early as the night before at Jack's,' Donkers said.
Cal Foote does the splits at Jack's Bar in London on the night of June 18-19, 2018, while teammates Brett Howden (on the far side of Foote, in white with a lighter-coloured backwards ball cap) and Dillon Dubé (in white on the near side of Foote) clear space on the dance floor.
Ontario Superior Court exhibit
But even if the judge were to accept Hart's version that Foote did the splits while clothed and didn't touch the complainant, the judge should still conclude it was a sexual assault, Donkers said — even though the complainant maintained she was touched.
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'It's reasonable to assume that in (Hart's) version of events, she thinks the touching is about to happen and in vulnerable circumstances of a sexual nature,' Donkers said.
In the excluded statements from the Hockey Canada 2022 investigation that cannot form part of Carroccia's decision, both Formenton and Dubé said they witnessed Foote doing the splits, with Formenton specifying he wasn't wearing pants.
'So she's laying on the ground parallel between the beds,' Formenton said. 'I remember he takes pants off, top clothes still on, does splits over her upper body.'
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