2022 statements from accused players won’t be heard at London hockey trial

Content advisory: This article includes graphic language and details of alleged sexual assault

For seven straight days, E.M., the complainant in the sexual assault trial of five former members of Canada’s 2018 world junior hockey team, was cross-examined by defence lawyers who grilled her about inconsistencies and inaccuracies in the statements she gave about the alleged incident to London police and Hockey Canada. 

If the players decide to take the stand in the high-profile case, they will not receive the same type of withering scrutiny about some of their past statements on what happened in a London hotel room on June 19, 2018, even though Crown attorney Meaghan Cunningham has argued statements from three of the charged players are riddled with inconsistencies.

Cunningham isn’t able to highlight those statements because notes from interviews Michael McLeod, Alex Formenton and Dillon Dube gave to a Hockey Canada investigator in 2022 were ruled inadmissible by Bruce Thomas, a judge who handled the pre-trial motions in the case. 

Thomas ruled the handwritten notes were inadmissible because Hockey Canada in July of 2022 had threatened lifetime bans to anyone who refused to cooperate with Toronto lawyer Danielle Robitaille, hired by the organization in June 2018 to investigate the allegations.  

Robitaille initially closed her investigation in 2020, then reopened it in 2022 after the public learned Hockey Canada had settled a $3.55-million personal injury lawsuit filed by E.M. 

(Players on the Canadian team faced no consequences in 2018 for refusing to cooperate with Robitaille; the lawyer only secured interviews with 10 of the team’s 19 players.) 

Thomas ruled the players had been coerced to cooperate with Robitaille in 2022 and that their statements were not voluntary.

“These statements by three defendants were achieved through such significant unfairness in a process that was unfair to them,” Thomas said during a pre-trial hearing. “They were left with a choice but no choice at all… they were going to be exposed as a sexual predator [if they refused to cooperate with Hockey Canada]. And the effect of that cannot be disregarded by this court… I understand the probative value of the statements. The court fundamentally must protect trial fairness and the end cannot justify the means… They must be excluded and the Crown will not be able to use them for any purposes.” 

Thomas added that “significant confessions are excluded by this court all the time. I’m not sure even if [the player statements to Robitaille were confessions] that my conclusion would be any different.” 

In 2022, Robitaille cancelled scheduled interviews with Carter Hart and Callan Foote after she learned that London police planned to charge five players with sexually assaulting E.M. in McLeod’s hotel room following a Hockey Canada golf and gala event on June 18, 2018. 

McLeod faces a second charge as a party to the act. The players, who face as many as 10 years in prison if they are convicted, have all pleaded not guilty. 

At one point during pre-trial hearings in late 2024, Cunningham told Thomas she had created a chart that showed inconsistencies between what the players had told Robitaille in 2022 and what they had told London police officers. 

Cunningham argued unsuccessfully that the player statements to Hockey Canada should be admissible because if player statements to Robitaille were excluded as evidence and if the players chose to testify, “they can say whatever they want with impunity without being challenged on what they said to Ms. Robitaille.” 

Cunningham presented Thomas with what she said were “many, many” examples of inconsistent player statements. 

During McLeod’s Oct. 1, 2022, interview with Robitaille, he said that when he was with E.M. at Jack’s bar, before they decided to go to his hotel room together, she slipped on the beer-covered floor before getting back up, Cunningham told the court. 

E.M. described that “slip and fall” in her statements to Robitaille and to London police. In McLeod’s statement to police in 2018, he denied seeing E.M. fall. 

“It is important we are able to hold him to the truth that he did see her slip and fall,” Cunningham told the court. “It’s not just relevant to his credibility, but also to her credibility.” 

The trial has heard that after E.M. and McLeod had consensual sex in the early morning hours of June 19, 2018, he sent a text to his Team Canada teammates, writing, “Who wants to be in a 3 way quick. 209-Mikey.” 

While McLeod’s lawyer has suggested that E.M. asked McLeod to invite his teammates to his hotel room for a “wild night” with her, E.M. has testified that she had no idea that McLeod was sending that message and wasn’t interested in group sex. 

“E.M. said tell teammates to come, I want to do stuff with them too, fantasy of mine,” McLeod told Robitaille, according to notes of their interview. (As a condition of their players talking to Robitaille, defence lawyers insisted that the interviews not be recorded or transcribed by an official court stenographer.) 

The notes say that after Robitaille asked McLeod how E.M. knew his teammates, he said E.M. had hung out with the men all night. 

“I said to E.M., ‘Are you serious?’” the interview notes say. “E.M. said yes so I sent 3 way text and wait 10 minutes. I ordered tonnes of food – mozza sticks, pizza, wings, crazy bread from Domino’s or Papa Johns.” 

The notes say that McLeod told Robitaille that after Hart responded, “I’m in,” to his text, a phone call took place “where we talked about what E.M. wants to do – but I can’t remember speakers… then 20 mins later, Hart + Bean, maybe Howden or Batherson or both come to room – then they come in, she’s very flirty, having fun, in no way intoxicated…” 

Formenton also told Robitaille that he had had sex twice in his life before the incident in McLeod’s hotel room and that E.M. made eye contact with him when he was on his way to have sex with her in the bathroom, Cunningham told Thomas during a pre-trial hearing.

Formenton then told Robitaille he “looked to the guys and asked is this okay and normal and they said yeah,” Cunningham told Thomas.

“This was something he did not tell London police,” Cunningham said. “It shows he felt some uncertainty about what he was about to do was okay. To explore that and hold him to that is critical.” 

Cunningham told Thomas that it was also important to rely on Formenton’s interview with Robitaille on Oct. 14, 2022, because Formenton admitted that he lied when he said he had not seen Dillon Dube slap E.M. during the first of their two interviews. 

“Didn’t see anyone slap E.M.,” Formenton told Robitaille, according to the lawyer’s notes. 

But Formenton explained in a second interview with Robitaille four days after his first meeting with the lawyer that Dube had asked him to lie about the incident, Cunningham told Thomas. 

“Dube walked up and tapped her on the butt and walked away,” Formenton told Robitaille, according to her notes. “It was a tap but loud enough to hear.” 

In his second interview with Robitaille, Formenton also admitted he saw Dube holding the golf club and swing it in E.M.’s direction when she was on all fours on the ground. 

“I did not see contact with EM + club, but saw Dube held golf club in right hand [and] made putting practice motion and swung towards her butt,” Formenton said, according to Robitaille’s notes. 

In 2022, Formenton also told Robitaille that he had seen E.M. crying toward the end of the night but told the investigator that it was because E.M. had said she was not pretty enough. 

Cunningham also pointed to Dube’s Oct. 4, 2022, interview with Robitaille, in which he said that he was standing over top of E.M. with a golf club in his hand when E.M. allegedly said, “Are you going to play golf or have sex with me?” Dube told Robitaille that he then “slapped her on the bum once or twice.” 

Dube also told Robitaille he was “close” to E.M. while holding a golf club and conceded he “maybe” touched her buttocks with a club. 

E.M. testified that she was afraid after as many as 10 men showed up in McLeod’s hotel room after they initially had consensual sex and she felt she didn’t feel safe. 

She also testified that players were spitting on her and slapping her, and 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 she went into an autonomous state and did whatever she had to do to get out of the room safely. 

“If Mr. Dube testifies and denies slapping E.M. and we don’t have access to this interview, we would not be able to confront him with this prior occasion where he admitted this,” Cunningham told Thomas. “If these statements are excluded it will frustrate the search for truth.” 

Dube also told Robitaille that a group of players had a conference call after they learned Hockey Canada was investigating, notes of the interview show. 

“We were trying to figure out what Hockey Canada was doing,” Dube said, according to the notes. “At tournaments [we] can’t have girls over. Just thinking we had consent so no problem.” 

While the notes of McLeod, Formenton and Dube have been ruled inadmissible, prosecutors have still been able to rely on Robitaille’s notes from interviews with other non-charged players including Taylor Raddysh, Boris Katchouk, and Tyler Steenbergen. 

Cunningham has used the notes from those player interviews to corroborate the identities of the players accused of criminal behaviour.