A courtroom sketch of Justice Maria Carroccia delivering her ruling in the sexual-assault trial of five former members of Canada’s world junior hockey team, in London, Ont., on Thursday.Alexandra Newbould/The Canadian Press
The judge who acquitted the five men in the Hockey Canada sexual-assault case did not rely on two videos taken of the complainant on the night of her encounter with the accused players to determine whether the woman had consented to sex.
Instead, Justice Maria Carroccia used the videos to assess the woman’s relative sobriety and demeanour at the time they were shot. The judge did not make a major declaration on the the legal value of what are known as consent videos.
All five men charged with sexual assault after events that took place in a London, Ont., hotel room in 2018 were found not guilty on Thursday.
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During the 2018 sexual encounter, a six-second video was recorded at 3:25 a.m. The complainant in the case, known publicly as E.M., is asked whether she is “okay with this” and she says “yes.” At 4:26 a.m., in a 12-second video, a voice identified as Michael McLeod, one of the accused men, is heard saying “say it” and E.M. says, in part, “it was all consensual.”
E.M. has said she doesn’t remember the videos being filmed, but that she would have only been saying what she thought the men would want to hear. She maintained she was intoxicated and frightened.
In the Criminal Code, consent is the voluntary agreement to engage in a specific sexual activity and it must be present at the time sex takes place.
Videos shot afterward are not indicative of consent as the activity is happening, experts say. Justice Carroccia’s decision underlines the fact that they do not serve as evidence of legal consent.
“They are legally irrelevant on the point of consent,” said Daphne Gilbert, a University of Ottawa law professor.
Justice Carroccia, in her long judgment read out over more than four hours on Thursday in Ontario Superior Court, only briefly dwelled on the question of the videos being used as evidence of consent.
Of the first video, the judge noted: “I agree that it cannot be used to establish that the complainant consented to each sexual act that she engaged in.”
But the videos were part of the judge’s broader decision that she didn’t find E.M. credible and that the Crown didn’t prove its cases of sexual assault beyond a reasonable doubt.
The judge said she saw the first video as “circumstantial evidence” of the complainant’s behaviour at the time it was shot.
“She was speaking normally, she was smiling and did not appear to be upset or in distress,” the judge said. “She did not appear to be intoxicated.”
In the second video, the judge said E.M. did not show “any signs of intoxication.”
The judge also used the first video to assess E.M.’s demeanour at the time and found it did not show that E.M. was in a fearful state.
The Crown had argued the videos were evidence that Mr. McLeod knew that E.M. was not consenting and thus made the videos. The judge did not accept this argument.
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One of the men found not guilty, Carter Hart, had testified during the trial that it was common among professional athletes to record such videos. Prof. Gilbert said Thursday’s decision is a “warning that it’s not going to be helpful to you in a criminal case.”
Anna Matas, a partner at St. Lawrence Barristers in Toronto who has worked with survivors of sexual violence, said consent is about “this sex act with this person right now” and “a video taken after the fact really can’t tell you anything about whether the person consented in the moment.”
Ms. Matas said this includes the fact a person cannot retroactively revoke consent, after a consensual act, based on personal regret.
Of Justice Carroccia’s approach to the videos, Ms. Matas said they were part of the “little things that really chipped away at the judge’s view of [E.M.’s] credibility.”
Matthew Nathanson, a criminal defence lawyer in Vancouver who in June won a major case on sexual-assault law at the Supreme Court of Canada, said consent videos “may be relevant but they are no silver bullet,” speaking in general about the law.
“Their impact on any given case would depend on the unique circumstances of that case,” he said.
In the Hockey Canada case, Justice Carroccia on Thursday detailed an extensive review of previous legal decisions that informed her verdicts, including a number of Supreme Court cases, from several decades back to just last year.
Mr. Nathanson said the law around sex assault has become evermore complicated over the years.
“In many ways,” he said, “it’s easier to run a murder case than a sexual-assault trial.”