<\/p>\n
A composite image of London police Det. Steve Newton\u2019s handwritten notes on the complainant\u2019s comments during a June 2018, photo-identification interview. Michael McLeod, Dillon Dub\u00e9, Carter Hart, Cal Foote and Alex Formenton are all pictured. The officer\u2019s notes have been excerpted to fit in a single image.<\/p>\n
Ontario Superior Court Exhibit<\/p>\n
The decision left E.M. \u201cvery disappointed,\u201d while the Crown, which has 30 days to decide if they want to appeal, said they would be carefully reviewing the judgement. The players\u2019 lawyers said their clients felt vindicated\u00a0but their careers had been shattered, as they remain suspended from Hockey Canada programs and ineligible to play in the NHL until further notice, with the league saying Thursday that despite the not-guilty verdicts, the allegations in the case \u201cwere very disturbing and the behaviour at issue was unacceptable.\u201d\u00a0<\/p>\n
It\u2019s also a case that prosecutors themselves said was more \u201cnuanced\u201d than what a person might think a sexual assault looks like, but a sexual assault nevertheless, as they argued that E.M. either wasn\u2019t consenting or her consent was \u201cvitiated\u201d\u00a0\u2014 effectively cancelled\u00a0\u2014 by the fear of being in a room full of men she didn\u2019t know.\u00a0<\/p>\n
The judge disagreed, bluntly stating at the start of her judgement:\u00a0\u201cIn this case, I have found actual consent not vitiated by fear.\u201d\u00a0<\/p>\n
All five former players were found not guilty of all charges in the Hockey Canada trial, with the complainant\u2019s lawyer calling the judge’s decision “devastating.”<\/p>\n
Kelsey Wilson\/Toronto Star<\/p>\n
And with that, the Crown\u2019s case had been gutted, as Carroccia went through each allegation one by one, finding the men not guilty.\u00a0<\/p>\n
Carroccia found there were \u201ctroubling aspects\u201d in how E.M. testified that impacted her credibility as a witness, including offering vague answers and filling in memory gaps with assumptions.\u00a0<\/p>\n
\u201cOn several occasions, the complainant referred to her evidence as \u2018her truth\u2019 instead of \u2018the truth,\u2019 which seemingly blurs the line between what she believes to be true and what is objectively true,\u201d the judge wrote.\u00a0<\/p>\n
The world juniors were in\u00a0London in June 2018 to attend the Hockey Canada Foundation\u2019s annual Gala & Golf fundraising event. After the gala, a number of players went out to Jack\u2019s Bar, where McLeod met E.M., and she agreed to return to his room at the Delta where they had a consensual sexual encounter. But then a number of players showed up in the room afterward, some prompted by a text to a players\u2019 group chat from McLeod about a \u201c3 way.\u201d<\/p>\n<\/p>\n
E.M. testified the men\u00a0placed a bedsheet on the floor and asked her to masturbate, to perform oral sex on them while they slapped and spat on her, and engaged in vaginal intercourse. She testified that while she never said no nor physically resisted, she went along with the sexual activity as a way of protecting herself, at one point telling police and prosecutors she had taken on the \u201dpersona\u201d of a \u201cporn star\u201d as a coping mechanism<\/a>.\u00a0<\/p>\n The Crown had alleged that McLeod had intercourse with E.M. a second time in the hotel room\u2019s bathroom; that Formenton separately had intercourse with her in the bathroom; that McLeod, Hart and Dub\u00e9 obtained oral sex from her; that Dub\u00e9 slapped her naked buttocks, and that Foote did the splits over her head while she was lying on the ground and his genitals \u201cgrazed\u201d her face\u00a0\u2014 all without her consent.\u00a0<\/p>\n The defence argued that E.M. was an active participant, voluntarily masturbating for the players, repeatedly demanding to have sex, and becoming upset when few men took her up on her offers, an argument bolstered by the testimony of some of the Crown\u2019s own witnesses\u00a0\u2014 players who had been in the room but weren\u2019t charged with wrongdoing. It was an argument also supported by the evidence of Hart, the only player to testify in his own defence<\/a> and whose testimony the judge accepted.\u00a0<\/p>\n \u201cOn the basis of all of the evidence, I find as fact that the complainant did express that she wanted to engage in sexual activity with the men by saying things like \u2018Is someone going to f\u2014- me?\u2019 and masturbating,\u201d the\u00a0judge said.<\/p>\n Crown attorney Meaghan Cunningham, left, and the complainant E.M. testifying by video, are seen in a courtroom sketch in London in May.<\/p>\n Alexandra Newbould The Canadian Press<\/p>\n \u201cGiven the issues relating to the credibility and reliability of the complainant\u2019s evidence, I conclude that I cannot rely on it.\u201d\u00a0<\/p>\n The Crown had urged Carroccia to reject some of the evidence of their own player witnesses, Tyler Steenbergen<\/a> and Brett Howden<\/a>, arguing that their testimony about E.M. aggressively demanding to have sex in the room was a result of a players\u2019 group chat<\/a> from late June 2018, which the Crown said showed players getting behind a false narrative of what had happened in the room.\u00a0<\/p>\n Carroccia said she disagreed with the Crown\u2019s characterization of the group chat, in which players were texting each other after finding out that Hockey Canada was looking into the events in the room.\u00a0<\/p>\n \u201cThere is no basis upon which I can conclude that they did so for the purpose of concocting a false narrative of the events,\u201d the judge said. \u201cIn my view, the group chat reflects that the participants were expressing their honest recollections about what happened in room 209.\u201d\u00a0<\/p>\n As the judge said herself, the case has a \u201clengthy and contorted history,\u201d which began when E.M.\u2018s mother called police and her mother\u2019s partner called Hockey Canada on June 19, 2018, after E.M.\u2018s mother found her distraught in the bathroom. London police declined to lay charges after an eight-month investigation, which included three interviews with E.M., reviewing surveillance and other video evidence, and interviewing most of the players who were on trial.\u00a0<\/p>\n As the Star first reported in May<\/a>, Det. Steve Newton had doubts about E.M.\u2018s claims that she was too intoxicated to consent, as she walked unaided in heels up and down the stairs in the Delta hotel lobby on surveillance footage; the detective also wondered whether E.M. had been an active participant in the room.\u00a0<\/p>\n<\/p>\n But then a national scandal erupted in\u00a0the spring of 2022 when TSN reported that Hockey Canada had quickly settled, for an undisclosed sum, E.M.\u2018s $3.5-million sexual assault lawsuit against the sports organization and eight unnamed John Doe players, who had not been told about the claim. Sponsors began dumping Hockey Canada and executives were called to testify before Parliament. London police were feeling the heat too, reopening their investigation as a result of the significant media attention, and ultimately charging the five players in early 2024; at a packed news conference last year, Chief Thai Truong apologized to E.M. for the time it had taken to get to that point.\u00a0<\/p>\n In a statement Thursday, Truong commended E.M. for her \u201coutstanding courage and strength,\u201d while noting his force\u2019s investigation had generated important conversations about sexual violence.<\/p>\n As the Star also fi<\/a>rst reported in May<\/a>, Crown attorney Meaghan Cunningham warned E.M. in a meeting just weeks before those charges were announced that it was \u201cnot a really, really strong case,\u201d but that a conviction was still possible, according to notes of the meeting. She told E.M. that while many news stories from 2022 \u201caccept as true what is in your statement of claim\u201d from the lawsuit, there was a \u201creal possibility that\u00a0the current perception of what happened could change.\u201d<\/p>\n In her judgement Thursday, Carroccia expressed many of the same doubts as Newton regarding E.M.\u2018s level of intoxication, as she doesn\u2019t appear to be stumbling on any video and there was no evidence that she was heard slurring her words. The judge went as far as saying E.M. had \u201cexaggerated\u201d her intoxication in her testimony.\u00a0<\/p>\n The defence had argued that E.M.\u2018s \u201cterror narrative\u201d<\/a>\u00a0\u2014 her fear of being in the room\u00a0\u2014 was cooked up as part of her lawsuit and not something she ever told police in 2018, when she instead used words like \u201cfrustrated\u201d and \u201cannoyed\u201d to be in the room. Carroccia rejected the Crown\u2019s consent-cancelled-by-fear argument by pointing to those comments to police, as well as the fact that E.M. emerged naked from the hotel room bathroom, where her clothes were located, and walked into a room full of men who did not physically prevent her from leaving or threaten her.\u00a0<\/p>\n<\/p>\n McLeod had also recorded<\/a>\u00a0two sh<\/a>ort videos<\/a> of E.M. in the room on his phone; she testified she didn\u2019t even know she was being recorded in the first clip, in which McLeod asks off-camera if she\u2019s \u201cOK with this\u201d and she responds, smiling: \u201cI\u2019m OK with this.\u201d In the second video, she says she\u2019s sober and that \u201cIt was all consensual.\u201d While the Crown contended the videos couldn\u2019t be used to prove consent\u00a0\u2014 as consent must be given at the time of the sexual activity\u00a0\u2014 Carroccia said E.M.\u2018s demeanour in the first clip in particular would suggest she was not scared.\u00a0<\/p>\n How each player was acquitted<\/p>\n Hart testified that in response to E.M.\u2018s repeated demands for sex, he asked for a \u201cblowie, meaning blowjob,\u201d she said \u201cyeah\u201d or \u201csure\u201d and then moved toward him and helped pull his pants down, performing oral sex on him for about 30 seconds to one minute. Carroccia said she accepted Hart\u2019s testimony and that E.M. \u201cindicated by her words and by her actions that she would engage in oral sex.\u201d<\/p>\n A photo of room 209 at the Delta Armouries hotel in London, Ont., marked up by Carter Hart during his testimony, depicting player Cal Foote doing the splits over the complainant on a bedsheet on the floor on June 19, 2018, as well as the positions of other players.\u00a0<\/p>\n Ontario Superior Court Exhibit<\/p>\n Formenton had told police in\u00a0<\/a>201<\/a>8<\/a> that he \u201cvolunteered\u201d after E.M. demanded to have sex with players while she was on the floor, and he followed her into the bathroom as he said he did not want to have sex in front of\u00a0people. Again, Carroccia found that E.M. was expressing a willingness to engage in sexual activity, and she accepted Formenton\u2019s evidence that it was a mutual decision to go to the bathroom, as it was consistent with the testimony of all of the other witnesses that E.M. got up when Formenton approached her.\u00a0<\/p>\n While the judge was satisfied that Foote did the splits over E.M. \u2014 the splits being a popular \u201cparty trick\u201d Foote was known to do\u00a0\u2014 she wasn\u2019t convinced that he wasn\u2019t wearing pants and that his genitals touched her.<\/p>\n E.M., who couldn\u2019t identify Foote,\u00a0said the man put his penis in her face when doing the splits; Hart testified that Foote was definitely wearing pants and he didn\u2019t touch E.M., while Steenbergen couldn\u2019t tell either way whether Foote was wearing anything. Given her other issues with E.M.\u2018s testimony, Carroccia said she couldn\u2019t find her reliable on this point.\u00a0<\/p>\n \u201cNone of the other witnesses, including the witnesses called by the Crown, testified that Mr. Foote removed his clothing,\u201d Carroccia said. \u201cAlthough the complainant was naked at the time, I am not satisfied beyond a reasonable doubt that there was contact, or a threat of contact, nor am I satisfied that the act itself was sexual in nature.\u201d\u00a0<\/p>\n Carroccia accepted that Dub\u00e9 slapped E.M., but not that he was one of the multiple men she said were taking turns slapping her naked buttocks as hard as they could. Steenbergen had described the Dub\u00e9 slap as light and playful, the judge noted.\u00a0<\/p>\n<\/p>\n \u201cIt would be wrong for me to parse out this one discrete slap from what I find to be a single multi-faceted period of sexual conduct,\u201d Carroccia said. \u201cIt would be wrong for me to find a lack of consent beyond a reasonable doubt for this application of force which caused no bodily harm, imbedded in this broader consensual conduct.\u201d\u00a0<\/p>\n Dub\u00e9 had told police in 2018 he received oral sex from E.M. for about 10 seconds after she was \u201cchirping\u201d guys to have sex with her; Carroccia said she had a doubt as to E.M.\u2018s lack of consent in that instance given her rejection of E.M.\u2018s evidence.\u00a0<\/p>\n<\/p>\n
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