Players acquitted of all charges at London hockey trial

Content advisory: This article includes allegations of sexual assault.

London, Ont. – Five former members of Canada’s 2018 world junior hockey team were acquitted Thursday of all charges in a closely watched sexual assault trial, a case that underscored the high legal threshold for conviction and reignited debate over whether the justice system adequately serves survivors of sexual violence.

In a decision read from the bench, Justice Maria Carroccia of the Ontario Court of Justice cited a lack of proof beyond a reasonable doubt and criticized the complainant’s credibility and reliability in the case.

“In this case, I have found actual consent,” Carroccia said early on in an hours-long court hearing. “I do not find the evidence of E.M.  [the complainant in the case] to be either credible or reliable.”

When Carroccia made that comment, there were audible gasps from the players’ family members in the courtroom’s public gallery and at least one person could be heard saying, “Yes.”

Several of the players’ family members embraced and began crying and some of the players, who sat next to their lawyers closer to the judge, turned and looked back at family members.

Michael McLeod, Alex Formenton, Carter Hart, Dillon Dube, and Callan Foote had each been charged with sexual assault in January 2024 in connection with an incident in a London, Ont., hotel in June 2018 after a Hockey Canada gala event. McLeod also faced a second charge of being a party to the offence.

A woman, whose identity is protected by a publication ban and who has been referred to as E.M. in court, alleged that after she willingly accompanied McLeod to the hotel after a night of dancing and drinking at a downtown London bar, McLeod invited his teammates to his room and then joined other players in repeatedly sexually assaulting her for hours.

In her ruling, Carroccia said that E.M.’s testimony was laced with inconsistencies and that E.M. had exaggerated her level of intoxication on the night of the alleged sexual assault.

Carroccia also said E.M. had numerous gaps in her memory about the events connected to the alleged incident and that E.M. had filled those memory gaps with her own assumptions.

Carroccia noted that, on several occasions, E.M. had used the phrase “I feel that” to begin answering a question, a choice Carroccia said suggested an “uncertain memory.”

Carroccia read through a number of examples of E.M.’s inconsistent testimony.

At one point, E.M. was asked during cross-examination how much she weighed in June 2018 and she answered 120 pounds. The judge pointed out that E.M. gave that answer even though she was aware that she had actually weighed 138 pounds at that time. E.M. testified that she had answered the way she did because she was aware of what she had estimated in 2018. Carroccia said answers like that were “troubling.”

The judge also said that E.M.’s credibility and reliability was at issue and pointed out how many times E.M. referred to her evidence as “her truth, not the truth.”

Carroccia said that E.M. was “asking the men to participate in the sexual activity” and that McLeod had checked in with her to make sure she was okay.

“I am not satisfied that he invited the men into room 209 without the knowledge of E.M.,” she said.

The judge also said that it was not the role of the courts to weigh in on morality.

In a statement issued after the verdict, Crown attorney Meaghan Cunningham said the Crown’s goal throughout the proceedings was to see a fair trial where decisions were based on the evidence and law, not stereotypes and assumptions.

“We want to thank E.M. for coming forward and for her strength in participating in this process,” Cunningham said. “We will carefully review Justice Carroccia’s decision. And as this case is still within the appeal period, we have no further comment to make about the decision at this time.”

The Crown has 30 days to decide whether to file an appeal with the Court of Appeal for Ontario.

Karen Bellehumeur, a lawyer for E.M., praised her client for going through the legal process and also criticized defence lawyers for the way they cross-examined her.

E.M. testified in the case for a total of nine days and was cross-examined for seven.

“She felt that it was important to see the process through to the end, even if it meant opening herself up to intense scrutiny and unjustified criticism,” Bellehumeur said in a brief press conference.

“Her purpose, which was always at the forefront of her mind, was to stand up for herself and for others who have had similar experiences. She felt the sexual violence she experienced should not be concealed. She felt there needed to be accountability, but her choice to testify came at a great personal cost. Nine days of testifying was more than she ever expected. Her treatment during cross examination at times was insulting, unfair, mocking, and disrespectful, none of which was necessary.”

Several of the players’ lawyers also made comments to the media after the verdict, criticizing the Crown attorney for pursuing a case they said was driven by media and political pressure.

“For the last seven years, [Alex Formenton] has lived under a dark cloud,” Formenton’s lawyer, Daniel Brown, told the media. “The public now knows what Alex has always maintained: that he is innocent of this false allegation – but only after his case erupted into a massively publicized social cause… Nobody disputes that sexual assault is a terrible, societal plague, and Alex sincerely hopes that this prosecution does not stop the quest to combat sexual violence and to bring genuine offenders to justice.”

A number of protesters stood outside London’s courthouse on Thursday morning as the verdicts were announced, chanting “We believe E.M.” and holding signs with messages such as “Boys will be… held accountable.”

The high-profile case has provoked a debate among Canadians around what constitutes legal consent and has been in the headlines since May of 2022, when TSN reported that E.M. had settled a $3.55 million lawsuit she filed weeks earlier against Hockey Canada, the Canadian Hockey League, and eight hockey players who were referred to as “John Doe” defendants.

After news of the settlement, the Standing Committee on Canadian Heritage convened a series of hearings scrutinizing Hockey Canada and other national sport organizations and the way they have handled allegations of misconduct.

After The Globe and Mail reported in June of 2022 that Hockey Canada had maintained a secret slush fund to compensate sexual assault survivors that was built using money from minor hockey registrations, pressure from the government, sponsors, and the public led to the ouster of Hockey Canada's top executives and board members.

The players' criminal trial began in late April in London and was marked by repeated delays, a mistrial, and the dismissal of a second jury.

“This case is a case about consent and equally as important this is a case about what is not consent,” assistant Crown attorney Heather Donkers told the court in her opening statement.

Donkers called the case unconventional and said it would challenge the preconceptions of the 11 women and three men who served as jurors.

“This case is not about whether [E.M.] said no or removed herself from an unwelcome situation when she had the opportunity,” Donkers said. “This case is about whether [she] voluntarily agreed to engage in each and every sexual act that took place at the time they happened.”

Days later, a lunchtime exchange between a juror and one of Formenton’s lawyers resulted in a mistrial. The juror told Carroccia the interaction was inappropriate, while the lawyer, Hilary Dudding, said she made an innocuous comment after standing next to the juror while they ordered food.

Carroccia dismissed the jurors and picked a new jury, one that featured nine women and five men.

As the Crown began introducing evidence, jurors heard that E.M. met the hockey players at Jack’s, a bar in downtown London.

After E.M. and McLeod returned to his room and had consensual sex, McLeod invited his teammates to his room. Jurors were shown a text message McLeod sent to a group chat of 19 Team Canada players that said, “Who wants to be in 3 way quick. 209- mikey.”

Several players testified that McLeod personally invited them to take part in sex acts with E.M.

E.M. testified during the trial that as many as 11 players were in the room over the course of the evening and that some players spat on her and slapped her. At one point, one of the players suggested she put golf balls in her vagina and asked aloud if she “could take” an entire golf club inside of her, E.M. testified.

E.M. said she went into an automaton state and did whatever she had to do to get out of the room safely. Carroccia said in her decision that she believed that E.M. had been inviting the men, through her words and actions, to have sex with her and pointed out that E.M. previously testified that it was possible players thought she had consented to sexual acts.

In one video filmed by McLeod just after 3 a.m. on June 19, 2018, McLeod said, “You’re okay with this though, right? You’re okay with this?”

E.M. responded, “I’m okay with this.”

In a second video filmed at 4:26 a.m., E.M.’s torso was covered by a towel.

After McLeod said, “Say it,” E.M. answered, “This was all consensual. Are you recording me? Okay good.”

After McLeod said, “What else?” E.M. responded, “You are so paranoid. Holy. I enjoyed it. It was fine. I’m so sober. That’s why I can’t do this right now.”

E.M. testified that while she didn’t specifically remember the videos being filmed, McLeod had been “hounding” her to say she consented.

Cunningham asserted to Carroccia during the trial that the videos were “token lip service box checking,” and not evidence of any reasonable steps by the defendants to sincerely ascertain valid consent.

The trial also reviewed messages that McLeod and E.M. sent to one another after the alleged assault. On June 20, 2018, McLeod wrote to E.M. asking that she make a police investigation “go away,” according to screenshots of the exchanges that were shown to the jury.

Over the course of cross-examination that lasted seven days, defence lawyers alleged E.M. was the instigator of the sexual activity with the group of men, an allegation Carroccia found credible. David Humphrey, a lawyer for McLeod, suggested that E.M. had asked McLeod to invite his teammates to his hotel room to have a “wild night” with the men.

The defence lawyers also pointed to a number of inconsistencies in E.M.’s testimony and the statements she had provided to Hockey Canada and to police, including about how much alcohol she had consumed on the night of the alleged incident.

On May 16, after defence lawyers finished cross examining E.M., another incident involving Formenton’s lawyers and a juror led to the second jury being dismissed.

After a juror sent a note to Carroccia alleging that “multiple jury members” felt defence lawyers Brown and Dudding had laughed at them and mocked their appearance, Carroccia said she would agree to a motion by the defence for a second mistrial.

The Crown then agreed to move forward with the case as a judge-alone trial because a mistrial would have meant starting the trial over and forcing E.M. to testify again.

Four players who were not accused of criminal wrongdoing were called to testify. Brett Howden, Tyler Steenbergen, Taylor Raddysh and Boris Katchouk were each in McLeod’s hotel room for at least some period of time on the night of the alleged assault.

Steenbergen testified that he saw Dube slap E.M.’s buttocks.

“It wasn’t hard, but it didn’t seem soft either,” Steenbergen said.

Howden, who previously told Hockey Canada investigators that he heard E.M. “weeping” in the room, testified that he could no longer remember many events clearly. But he said he did remember E.M. “begging” players to have sex with her.

In one text message he sent to Raddysh a week after the alleged incident, Howden wrote that he was “so happy” to have left room 209 after seeing Dube “smacking this girl’s ass so hard. Like, it looked like it hurt so bad.”

Carroccia refused to allow the Crown to introduce the text message as evidence, agreeing with a defence motion that the text message was an informal communication between players, not a formal statement to police.

In late May, court reviewed details of the investigation initially conducted in 2018 by London police sergeant Stephen Newton.

Newton confirmed that he obtained surveillance footage from Jack’s bar where the complainant and the players met prior to the alleged assault but never watched the footage and that he obtained the clothing E.M. wore the night of the alleged incident but never sent them for forensic examination.

Court reviewed the video of an interview Newton conducted in November 2018 with McLeod in which Newton asked the hockey player why so many of his teammates showed up to his hotel room. McLeod shrugged and said he had no idea. McLeod testified that he had told a few players that he had food and a girl in his room. Newton never asked to review any text messages between the players.

Hart was the only accused player to testify in his own defence. He testified that while he was certain that E.M. had consented to sex acts with the players, he couldn’t recall many of the events in McLeod’s room.

Despite his memory issues, Hart testified he was certain that no one spit on E.M., slapped her, or degraded her.

"I don't think anyone would have done anything to hurt her," Hart testified at one point. "I think if something happened that she didn't want, I would have put a stop to it. Other guys would have. I wouldn't have stayed in the room as long as I did."