Making sense of some of the evidence in the Hockey Canada sexual assault trial

WARNING: This nonfiction references intersexual battle and whitethorn impact those who person experienced​ ​​​sexual unit oregon cognize idiosyncratic impacted by it.

The intersexual battle proceedings of five players who were connected Canada's 2018 satellite inferior hockey team isn't conscionable being followed intimately in sports circles and by advocates against gender-based violence. 

The ineligible assemblage is also watching the proceedings, where there person been many melodramatic developments since they began successful precocious April successful London, Ont. 

The accused men — who each astatine 1 clip had NHL careers — are Cal Foote, Dillon Dubé, Alex Formenton, Carter Hart and Michael McLeod. All have pleaded not guilty. The charges stem from allegations by the complainant, E.M., and their clip astatine a London edifice successful June 2018 pursuing a Hockey Canada gala to observe the hockey team's satellite title.

CBC News spoke to 3 lawyers who are not progressive successful the case but are intimately watching it.

"Every occurrence of this proceedings is jam packed with ineligible drama," said Nick Cake, a London-based transgression lawyer and erstwhile Crown.

Since the proceedings began, there has been a mistrial, followed 4 weeks aboriginal by a 2nd assemblage being discharged arsenic the lawsuit shifted to being heard by Superior Court Justice Maria Carroccia alone. There person besides been galore evidentiary applications and arguments successful voir dires, or trials wrong a trial.

"For me, it's truly a emotion of the law. I deliberation determination are precise absorbing issues that person arisen," said London-based transgression defence lawyer Sam Puchala, who often slips into the courtroom to ticker the satellite inferior proceedings.

"These are immoderate of our colleagues successful the defence barroom who are precise notorious. They person precise bully techniques, and truthful it's conscionable been a pleasance to ticker but besides learn. So I'm learning things each time successful this proceedings arsenic well."

Keeping connected apical of the proceedings from Vancouver, Sarah Leamon, a defence lawyer and prosecutor, says, "It's a precise antithetic proceedings fixed that we person 5 antithetic co-accused each connected trial.

"Not lone that, but there's besides a large woody of involvement fixed the information that this is simply a Hockey Canada issue," Leamon said.

(Hockey Canada hosted the London gala for the satellite inferior squad successful 2018, and has besides faced disapproval implicit yet settling a civilian suit by the complainant, whose individuality is protected nether a modular work ban. During this trial, defence counsel for the accused person besides noted Hockey Canada settled the suit without communicating with oregon seeking the consent of the players.)

There has besides been a preponderance of evidence.

The exhibits shown successful court include surveillance footage from a bar, photos of a edifice room, the phones of hockey players, substance messages and adjacent a brace of stilettos. 

In 1 memorable infinitesimal during cross-examination, Julianna Greenspan, who represents Foote, hoisted a brace of stilettos  into the air. They were, she said, the aforesaid marque arsenic the ones worn by E.M. Greenspan's questioning revealed the shoes — with long, bladed precocious heels — were hard to enactment on, and the lawyer used them arsenic portion of her arguments that E.M. ne'er really was wearing them erstwhile she tried to permission the room. Greenspan suggested it was due to the fact that she ne'er intended to leave.

A photograph of E.M.'s shoes was besides entered into evidence.

Here are more thoughts from Cake, Puchala and Leamon, focusing on however immoderate of the evidence/exhibits whitethorn play into the trial.

The '3 way' text

One of the archetypal exhibits the Crown enactment guardant was a screenshot of a substance from McLeod that timestamped 2:10 a.m. connected June 19, 2018. Sent after McLeod and E.M. left Jack's barroom and had sex in Room 209 astatine the Delta edifice (court heard the archetypal clip they had sex was consensual), the text appears to invitation teammates to his country for a "3 way."

"Without immoderate context, it's conscionable 1 tiny portion of the puzzle," Cake says of that text. "I don't deliberation that this peculiar portion of grounds does a full heck of a batch due to the fact that each it does is explicate what we already know, that determination were a batch of men successful that country with 1 pistillate and the allegations are that thing happened." 

Leaman said it needs to be viewed much arsenic communicative grounds — which is grounds that helps archer the story.

"We cognize that this connection was sent, and we cognize who sent it, what clip they sent it. But again, the context, arsenic [Cake] has pointed out, it needs to beryllium filled in."

Puchala said the connection helps enactment the Crown's communicative of however the nighttime unfolded. 

"It truly is conscionable thing that leads to however it begins successful a factual mode truthful that you cognize determination can't beryllium immoderate benignant of denial astir this connection being sent."

Puchala said the substance inviting players to the country for a "3 way" doesn't truly service arsenic grounds of consent oregon deficiency thereof even if E.M. consented to the substance being sent.

"That's not what her grounds is, that she wanted a three-way, but this is truly suggesting thing that isn't adjacent what ends up happening successful presumption of the allegations." 

The 'consent videos'

The proceedings besides saw 2 videos of E.M. that were taken from McLeod's phone. 

One video is timestamped 3:25 a.m. In it, McLeod is heard saying: "You're OK with this?" E.M. responds: "I'm OK."

The adjacent video is timestamped 4:26 a.m. A antheral dependable is heard saying: "It was each consensual?" E.M. is heard replying: "It was each consensual. Are you signaling me? K, good. You are truthful paranoid. Holy. I enjoyed it. It was fine. I'm truthful sober — that's wherefore I can't bash this close now."

"I've had a batch of members of the nationalist inquire me, wherefore is it that we're adjacent coming to a proceedings if determination are videos that corroborate her consent?" Puchala said.

"I cognize lawyers person spoken up astir this before, that conscionable due to the fact that a video is recorded of you saying that you were good with thing that happened, doesn't mean that you are consenting astatine the clip of the act."

Puchala has watched the videos respective times successful court. One happening she says Carroccia volition person to instrumentality into relationship is E.M.'s demeanour, peculiarly successful the 2nd video.

"Some could presumption that arsenic precise skittish, right? That she wants to get retired of there. So I deliberation it truly comes down to the analysis," Puchala said. In the archetypal video, E.M. appears to beryllium wiping her eyes. She has testified to weeping astatine times successful the night.

"This volition beryllium up to Justice Carroccia present that she is the trier of fact. She is going to rewatch that video many, galore times, and that is going to beryllium for her to find successful weighing the complainant's credibility and reliability."

Leaman suggests the information the videos adjacent beryllium raises questions utile to the Crown.

"Why would idiosyncratic consciousness the request to get a consent video aft they've engaged successful what they judge to beryllium consensual intersexual enactment with an individual?"

Because, nether Canadian law, consent has to hap astatine the clip of the intersexual activity, Leaman said she would find defending the videos problematic. 

"We could marque the argument, of course, that this is consent and it was valid consent, and this is documenting the valid consent that was obtained astatine the time. It conscionable seems unusual."

Cake pushed backmost connected Leaman's assessment.

"If you're wearing a satellite juniors title ring, you're connected the verge of a 10-year, $12.5-million declaration to play successful the nonrecreational hockey relation that dominates North America, and you've conscionable engaged successful intersexual activity," Cake said. 

'Isn't determination a portion of you that mightiness think, 'You cognize what, I privation to support myself from this nonstop concern oregon from a imaginable civilian lawsuit. And truthful I'm going to drawback this video.' That's perchance 1 of the ways that I spot it."

Texting betwixt McLeod and E.M.

McLeod recovered E.M. connected Instagram a time aft the alleged assaults and the 2 started texting. 

"I deliberation substance messages are ever utile successful presumption of framing the grounds that the parties give," Puchala said.

She sees respective antithetic ways the Crown and the defence teams could construe the exchange.

"When E.M. says, 'I was truly drunk, didn't consciousness bully astir it astatine each after,' I deliberation the connection 'after' is absorbing due to the fact that of people not feeling good, oregon feeling shame oregon disgust adjacent aft an different consensual brushwood does not magnitude of intersexual assault," Puchala said.

"When she says, 'But I'm not trying to get anyone successful trouble,' that could beryllium true, adjacent if there's a intersexual assault. So, adjacent if she was not consenting, and tons of intersexual battle victims bash not privation accused persons to get into trouble."

Puchala said the texts corroborate E.M.'s grounds that the archetypal brushwood with McLeod was consensual and "'it was everyone other aft that I wasn't expecting."

"So, again, what precisely was it that you were not expecting?" Puchala said, adding that "needs to beryllium a determination from Justice Carroccia."

Puchala past zeroed successful connected E.M.'s line "just felt similar I was being made amusive of and taken vantage of."

"Being 'made amusive of' is not a crime," Puchala said. "But if it's truly being taken vantage of, 'I did not consent to these different men coming into the country and engaging successful the behaviours that they did,' that's a full different story."

Leaman zeroed successful connected the substance successful which E.M. tells McLeod she "didn't consciousness bully astir it astatine each after."

"You tin person buyer's remorse, to enactment it that way, aft a intersexual brushwood that was consensual astatine the time, but present you look backmost and you think, 'Oh, I truly privation I hadn't done that,'" Leaman said.

"That does not vitiate the consent that was fixed astatine the time. And this whitethorn besides talk to the defence that I expect these young men volition apt mount."

WATCH | WARNING: This video contains graphic content: Crown questions complainant E.M.:

Leaman was besides struck by the mode successful which McLeod texted E.M.

"He's being very, I think, you know, steadfast successful instructing her to straighten things retired close now," Leamon said. 

"When you look astatine what MacLeod's doing here, I deliberation that he's incredibly pushy," Cake said. "I mean, the texts started astatine 10:51 successful the morning. And they go, sure, until 7:40.

"You tin spot that E.M. is like, 'Hey, I can't speech close now, I'm astatine work. I'm sorry. I'm unavailable.' And he's like, 'Are you going to hole this? Are you going to bash it today? What are you gonna accidental to the police?'" Cake said. 

"I deliberation that these substance messages are a fantastic mode to framework what evidently the Crown would beryllium pushing arsenic the powerfulness dynamic wrong that edifice room."

"Mr. McLeod comes crossed arsenic idiosyncratic who is blase capable to cognize he's in immoderate occupation and he's trying to get himself retired of it," Leaman said of the substance exchange. "And helium mightiness conscionable beryllium papering this speech with things that whitethorn assistance him later. So that's besides a possibility."

Puchala said Carroccia volition person to presumption these messages wrong the discourse of each the different evidence.

"He [McLeod] ends it disconnected with, 'I admit you telling the truth. Thank you each the best.' So is it, arsenic [Leamon] was saying, to effort to insubstantial the record to marque it look a definite mode oregon is it genuinely, 'Oh phew we hold … that it was a mistake.'"

The players' radical chat

On June 26, 2018, arsenic they learned Hockey Canada was starting an investigation, the players who were successful Room 209 that nighttime began a radical chat. The Crown has suggested determination was collusion, but McLeod tells different players successful the radical chat that they request to archer the truth.

"When I work done this radical chat — it's conscionable truthful hard to find what's going connected here," Leaman said. 

"Are these guys getting unneurotic to collude, to make a communicative that assists them due to the fact that they cognize they've done thing that's questionable, if not conscionable wrong? Or is this a concern wherever they're acrophobic astir thing that was consensual and they felt it was consensual astatine the time, but present they're looking backmost and they're a small spot worried?"

Puchala said: "You person young men present that are benignant of trying to grapple with what's going connected and it doesn't needfully look similar they truly deliberation that it's going to beryllium benignant of a transgression affair.

"It's really, I deliberation they're tense astir dealing with their families and with Hockey Canada, truthful successful these messages, there's a batch a batch going on. 

"It has to beryllium analyzed," said Puchala, who noted Carroccia has to deliberation astir these exchanges without having heard from galore of the players who were successful the radical chat. 

"If there's uncertainty astir something, like, it tin look bad," Puchala said, but pointed retired the justice volition use a modular of tenable uncertainty that is precise high.

"Any benignant of question astir that deficiency of certainty usually favours the defence."

If you're successful contiguous information oregon fearfulness for your information oregon that of others astir you, delight telephone 911. For enactment successful your area, you tin look for situation lines and section services via the Ending Violence Association of Canada database. ​​