Hockey Canada sex-assault trial spotlights roadblocks and missed opportunities in first London police probe

Globe and Mail

6 hours ago

Eight months after receiving a complaint that a group of former world junior hockey players sexually assaulted a woman in a downtown hotel, London police detective Stephen Newton had reached the end of his investigation.
In a phone call with E.M., as the complainant is known because of a publication ban on her name, he told her he didn't have enough evidence to continue his probe.
'I informed her I would be closing the case with no charges,' Mr. Newton, who has since retired, wrote in his notes in February, 2019.
His conclusions in the case, and the investigative steps he took to reach them, have since come under intense scrutiny.
After it emerged that Hockey Canada, which oversees the world junior team, had quietly settled a lawsuit the woman filed without the players' knowledge, police reopened the case in 2022. This time, a new lead detective reached a different conclusion, and in January, 2024, police laid sexual-assault charges against Michael McLeod, Dillon Dubé, Carter Hart, Alex Formenton and Cal Foote. Police Chief Thai Truong apologized publicly to E.M. and her family for 'the time that it has taken to reach this point.'
Each of the players has pleaded not guilty. Closing arguments in their eight-week-long criminal trial concluded in a London courtroom last week. The judge is scheduled to deliver her verdict on July 24.
Documents from the 2018 investigation that ended without charges were submitted as evidence in the trial, along with records from the second investigation years later.
The Globe and Mail interviewed five experts in sexual violence, policing and law who are not connected with the case about the initial police investigation.
Their review of police notes and interviews Mr. Newton conducted with E.M. and the accused players reveals that while he hit roadblocks, he also missed opportunities to dig deeper and left investigative avenues unexplored, raising fundamental questions about how police treat sexual-assault allegations.
'It's emblematic of bigger system failures,' said Melanie Randall, a law professor at Western University and legal expert on sexual assault who reviewed the materials. 'It's a perfect case study of where things go wrong in the criminal justice system with police interviews and investigations.'
The London Police Service declined to comment for this story, saying the case is before the courts. Mr. Newton also declined to comment.
When Mr. Newton testified at the trial, Crown attorney Meaghan Cunningham pressed him repeatedly about apparent gaps in his investigation, and in written submissions asserted he lacked 'a genuine interest in getting at the truth.'
'Detective Newton had made up his mind that there would never be grounds for charges (based on his erroneous or incomplete understanding of consent),' Ms. Cunningham wrote in submissions filed with her closing arguments.
Defence lawyers, meanwhile, praised him as a veteran detective whose decision to close the case without charges was correct.
David Humphrey, who represents Mr. McLeod, said in court: 'You were familiar with and tried to follow best practices for the investigation of sexual-assault cases?'
Mr. Newton replied, 'Yes, I did the best I could.'
In Canada, the law requires that consent is voluntary, continuous and given for each sex act. Physically fighting back is not necessary to determine whether a sexual assault has occurred. Rather, the law examines whether an individual has freely indicated 'yes,' without coercion.
Prof. Randall said Mr. Newton's interviews with E.M. and the observations he recorded in his notes raise questions about whether he investigated her allegations through this lens.
Mr. Newton first learned of the allegations on June 19, 2018, hours after E.M. left the hotel. His records indicate that police had received a call from a Hockey Canada official, after E.M.'s stepfather lodged a complaint with the sports organization.
In E.M.'s interviews with Mr. Newton, she described how she met Mr. McLeod in a local bar called Jack's and went with him to his hotel room at the Delta Armouries. She said they had consensual sex, but that she was then forced to engage in sex acts with a group of teammates he had invited in without her knowledge as several others in the room watched.
He wrote in his notes that there was no evidence E.M. 'was physically coerced into performing these sex acts' and that 'I explained to [E.M.] that her level of consent is at issue here and that I do not have the evidence needed to demonstrate at court that there was no consent.'
At trial, defence lawyers asserted that it was E.M. who asked Mr. McLeod to invite his teammates to the room and that she had demanded sex from the players.
Kat Owens, a former Crown attorney who is now interim legal director at the Women's Legal Education and Action Fund in Toronto, said the interview transcripts suggest Mr. Newton failed to home in on what should have been a primary interest.
'What I think is most concerning is the lack of a focus on just the simple question of 'Did you consent?' ' she said.
'Colloquially, only yes means yes. It's not 'no means no,' ' she added. 'It's that you have to be giving an active ongoing consent to each sex act.'
E.M. alleged to Mr. Newton that this did not occur, telling him 'they were all like slapping my butt … that was actually starting to hurt so I told them to stop.' Later, she said, 'One just did the splits on my face, just to put it in my face. … It just got really uncomfortable.'
These allegations would underpin the Crown's prosecution against Mr. Dubé and Mr. Foote. But Mr. Newton did not pursue them as grounds for potential charges and conceded at trial that when he interviewed Mr. Dubé, he didn't ask the player whether he had touched E.M.'s buttocks.
'Maybe I missed that,' Mr. Newton testified.
Intoxication is a factor police consider when investigating sexual-assault allegations, because the law looks not only at whether a complainant consented but also whether they had the capacity to do so. High courts have held that extreme inebriation or periods of unconsciousness can void consent.
Profound intoxication does not typically meet the threshold. In many cases, courts have held that there must be evidence that a complainant was unconscious to find that they were unable to consent.
When Mr. Newton began his investigation, he wrote in his notebook that he contacted a Hockey Canada official who was independently investigating. The official told him that the events may have involved a woman who 'was extremely drunk and may have blacked out.'
However, the transcripts of Mr. Newton's interviews with E.M. suggest incapacity was never a likely path to charges in the case.
In an interview on June 22, 2018, Mr. Newton asked E.M., 'Were you conscious the whole time?'
'I don't think I passed out at all,' she replied.
Prof. Randall said Mr. Newton should have pivoted toward other aspects of the consent analysis.
Instead, the investigative records suggest, E.M.'s level of intoxication continued to be a focal point in Mr. Newton's probe and led, largely, to his decision to shutter it.
When Mr. Newton closed his case, he wrote in his notes: 'I would have needed to see outward signs that she was intoxicated such as staggering, severely slurred speech, unconsciousness and evidence that others around her could see that she was too intoxicated to consent.'
That assessment suggests the officer had a 'rigid, narrow idea' of how to evaluate consent and the role intoxication plays in that analysis, Prof. Randall said.
'He failed to appreciate some of the dynamics at play,' she said, adding that his focus on whether E.M. was too drunk to consent 'is one of the things he kind of gets stuck on and misunderstands.'
When Mr. Newton interviewed E.M., he asked her whether she could have left the hotel room during the alleged sexual assault.
'I don't think I was capable in that state,' she replied, later adding: 'I don't know why I couldn't speak up.'
Lori Haskell, a clinical psychologist who studies sexual violence, said E.M.'s response should have prompted the officer to dig deeper and inquire about her state of mind.
That did not happen, according to the interview transcripts and officer's notes.
'The right questions were not asked,' Dr. Haskell said. 'A trauma-informed detective, aware of how the brain responds to extreme threat and stress, would consider that her reactions may have been dissociative or that her executive functioning was impaired.'
At the criminal trial, E.M. testified that during the alleged assault, she felt as if her mind 'kind of floated to the top corner of the ceiling' and that she watched herself over the ensuing hours.
She said she switched into 'autopilot' and performed sex acts she didn't consent to as a way to get through the night. Defence lawyers challenged this, arguing that E.M. was an enthusiastic participant and made up this narrative later because she regretted her actions.
A few weeks into the police investigation, E.M. left a voicemail message for Mr. Newton.
'She indicated that she would prefer a female investigator to investigate this matter,' he wrote in his notes. 'I am not sure why that is and she did not make that request to me when I spoke to her on the phone.'
Mr. Newton wrote that he brought some female officers into the investigation, but stayed on as lead detective.
Dr. Haskell said that wasn't sufficient and E.M.'s request for a female lead detective 'should have been accommodated.'
'Providing a female officer is not simply about comfort,' she said. 'It's a trauma-informed response that recognizes the psychological and emotional safety needs of the complainant.'
When London police reopened the case in 2022, it was assigned to a female detective, Lyndsey Ryan, whose probe resulted in the charges that are now before the court.
Mr. Newton remarked on several occasions in his notes that E.M. appeared to be wavering on whether she wanted to pursue charges.
In July, 2018, he wrote that E.M. 'has repeatedly changed her mind on how she would like to see this investigation proceed. It raises a significant concern on my part that she is being coerced into participating in an investigation that she never wanted to occur in the first place.'
Dave Perry, a former investigator with the Toronto police sexual-assault squad, said reticence of a complainant may deter police who don't want to lay charges they can't support in court.
But retired criminal defence lawyer John Hill questioned whether Mr. Newton placed too much emphasis on E.M.'s willingness to proceed, noting that it's common for sex-assault complainants to waver.
'I would put no stock in the fact that she vacillated,' Mr. Hill said.
Mr. Newton faced considerable barriers in his investigation. Hockey Canada refused to hand over its internal investigative file. And Mr. Newton's position that he was unable to form grounds that a crime had occurred meant that he couldn't seek judicial authorization to compel the sports organization or any other third party to produce evidence. Prosecutors in the case later said he also did not ask the players to voluntarily give him their text-message exchanges.
When Det. Ryan reopened the case in 2022, she gained access to the text messages, as well as Hockey Canada's investigative file, which included notes from player interviews. A judge would later block three of the players' interviews from being used in their criminal trial, finding the sports organization obtained them through coercion.
Mr. Newton obtained some evidence without court orders, such as the video surveillance from Jack's bar, where E.M. met some of the players. But he conceded at trial that he never watched the footage.
If he had, Prof. Randall said, Mr. Newton 'would have seen the amount E.M. was drinking and people buying her drinks at the bar,' as well as men 'encircling her,' which he could have factored into his assessment of her vulnerability.
Mr. Newton wrote that his investigation identified 11 players who were in the hotel room with E.M. and that he hoped to speak to all of them. But he only ever sat down with two of them face to face. Some other players gave phone interviews, but most of the rest gave only written statements or would not talk to him at all.
The two in-person conversations were with Mr. McLeod and Mr. Formenton and took place in a Toronto lawyer's office. This would have allowed these players to present themselves in a positive light, according to defence lawyer Monte MacGregor, who is not involved in the case. 'It's a defence strategy to get ahead of the curve,' he said, adding that this would allow the subjects to say they were as helpful as possible in meeting with police.
Mr. Newton also missed possible opportunities to press the players for information that might have advanced his investigation.
During the voluntary interviews, Mr. Newton asked Mr. McLeod about what drew multiple players to his hotel room on the night of the alleged assault: 'Do you get the sense that guys are coming because they know there's a naked girl in the room who's doing sexual favours?'
'I don't know how guys kept showing up,' Mr. McLeod replied.
'Well, I know everyone has phones and devices. … Were you sending any of those messages?' the detective asked.
Mr. McLeod said, 'Oh no, I just told the guys I was getting food and there's a girl over there, that's all I said to a few guys.'
This was an invitation to follow up further, said Mr. Perry, the retired Toronto police detective.
Mr. Newton did not continue his line of questioning. He testified that he did not become aware of a text sent from Mr. McLeod's phone to teammates on the night of the alleged assault that said, 'Who wants to be in a 3 way quick. 209 – mikey' – a key piece of evidence in the Crown's prosecution.
'I think in hindsight, yeah, he could have probed a little deeper,' Mr. Perry said.
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