With players from 2018 WJC team charged, lawyers say behind-the-scenes legal battles brewing
At some point over the next few weeks, assistant Crown attorney Meaghan Cunningham is expected to send an email to a team of defence lawyers who represent four current National Hockey League players and one former NHL player charged with sexual assault.
Cunningham, who according to government records joined the Ontario Attorney General as a prosecutor in 2008, has been assigned to lead the government’s effort to convict Carter Hart, Dillon Dube, Michael McLeod, Alex Formenton, and Cal Foote. Her email will begin a process known as disclosure.
The legal teams will then begin to scour the information contained in that disclosure, which will detail all of the evidence collected by police in London, Ont.
According to lawyers who specialize in sexual assault cases, the defence will have access to transcripts and video recordings of all police interviews with E.M., the alleged victim in the case, as well as those with witnesses and the players themselves.
There will likely be copies of police notes, correspondence with the National Hockey League, Hockey Canada’s independent report on the alleged assault, which has been provided to London Police, as well as photos and videos of the hotel room where the alleged incident took place.
There may also be copies of any information police have obtained through court-approved warrants, which could include recordings of player phone conversations or social media direct messages.
“The disclosure will be relatively voluminous, likely consisting of many, many witness statements,” said Toronto lawyer Alison Craig, who is not working on the hockey case. “I suspect they interviewed everyone under the sun.”
Lawyers for the five players, who were all members of Canada’s 2018 World Junior team, confirmed this week that their clients have been charged with sexual assault and that they all will plead not guilty. Court documents obtained on Thursday by TSN and CTV National News show that McLeod was also charged with a second count of sexual assault for “being a party to the offence.”
Anyone convicted of sexual assault faces a maximum 10 years in prison according to the Canadian Criminal Code, although first-time offenders are more likely to be sentenced to around two years, said David Butt, who was a Crown attorney from 1989-2002 and now works as a defence lawyer in Toronto.
Butt said “being a party to the offence” is someone who “aids or abets” the commission of the offence. Butt said it’s unclear how much prison time McLeod might face if he’s convicted of both charges because multiple convictions may lead to sentences being served concurrently rather than consecutively.
The players are charged in connection with an alleged sexual assault that took place in June 2018 following a Hockey Canada event in London.
E.M. alleges that she agreed to leave a London bar and have consensual sex with one of the players. She alleges that after they were done, the player secretly texted World Junior teammates and invited them to come to his hotel room to also have sex with her. E.M. alleges that she was then sexually assaulted for hours and that the players forced her to record two cellphone videos saying that she had consented to the sexual activity.
The first video is six seconds long and was filmed at 3:25 a.m. during the incident, Kaleigh Davidson, a lawyer working for the players, told TSN in 2022.
In that video, E.M., shown from her neck up, was asked, “You’re okay with this?” by an unidentified man, and she answered, “I’m okay with this.”
In another 12-second video which Davidson said was filmed at 4:26 a.m. after the incident, the woman was shown standing with a towel covering her chest.
“Are you recording me?” she said on the video. “Okay, good. It was all consensual. You are so paranoid. Holy. I enjoyed it. It was fine. It was all consensual. I am so sober, that’s why I can’t do this right now.”
The videos are critical evidence, said Andrew Furgiuele, a Toronto defence lawyer who represented former Soo Greyhounds player Andrew Fritsch when he was charged with sexual assault in 2012. (Charges against Fritsch and two other players were dropped before trial.)
“I expect the Crown to argue that the woman was coerced to make the videos,” Furgiuele said. “When you hear her say, ‘I am so sober, that’s why I can’t do this right now,’ that is an odd thing for someone to say and the defence are going to have to address that. The defence will also argue that the video is clear evidence from that moment that shows there was consent.”
According to Canadian law, an unconscious person cannot consent to sexual activity, and neither can someone who is so intoxicated that they are incapable of consenting.
London police initially investigated E.M.’s allegations before closing the case in February 2019 without laying charges because the lead detective didn’t believe there was enough evidence.
In May 2022, TSN reported Hockey Canada had – without consulting any players involved in the alleged incident – quietly settled a $3.55-million lawsuit brought by E.M. against Hockey Canada, the Canadian Hockey League and eight unnamed players in connection to the alleged attack.
The allegations against the players have not been tested in court. London police are scheduled to host a news conference on Monday at 2 p.m. ET to update the public about their investigations.
TSN has interviewed 16 current and former Crown attorneys and defence lawyers who specialize in sexual assault cases. They offered insights into how prosecutors and the defence team will navigate what will be among Canada’s highest-profile sexual assault cases since former CBC personality Jian Ghomeshi went on trial and was acquitted in 2016.
Every detail of the hockey case is likely to attract close attention and legal arguments.
Craig said that after the defendants review disclosure material over the next several months, a judge probably sometime in mid-to-late 2024 will set a trial date.
A trial, however, probably won’t happen until late 2025 or early 2026 because delays are far-reaching throughout the Ontario judicial system, several lawyers told TSN. The delays are so extensive that one case involving the alleged sexual assault of a minor was recently thrown out of court due to courtroom closures fuelled by staffing shortages.
(According to guidelines set by the Supreme Court of Canada in 2016, trials by judge in provincial court must begin within 18 months of charges being laid or they may be dismissed; jury trials in superior court are required to begin within 30 months. Anything longer is considered to violate the accused’s right to be tried within a reasonable time.)
At around the same time that a trial date is set, lawyers for the players will focus their attention on several important issues – whether the players should go on trial together or be tried separately, and whether they will elect to have their fate decided by a judge or a 12-member jury.
The Crown will likely push for the players to be co-defendants in a single trial, Furgiuele said. That would allow E.M. to testify only once, instead of five times at five trials. (Even if the players are tried in a single trial, each player’s legal team would still have the opportunity to cross-examine E.M.)
Furgiuele said that while the defence team may push to have the cases severed to five separate trials, which would apply more pressure on E.M., it’s doubtful that a judge would grant the request.
Testifying in even one trial will be difficult, former Canadian Olympic skier Allison Forsyth said in an interview.
Forsyth was sexually abused over two years in 1997 and 1999 while on the national team by coach Bertrand Charest, who was convicted of sexual assault in 2016 for sex crimes against young skiers. Forsyth was among 12 skiers who testified during Charest’s trial.
“Testifying once is extremely re-traumatizing, not to mention the number of times you have to recount your story before you even get to court,” Forsyth said. “It feels like telling your most shameful moments to a roomful of strangers. And you know every disgusting detail is going to be recounted to everyone across the country.
“To everyone else who’s there, it’s just another day at the office. To you, it’s the biggest day of your life. I cannot imagine the devastation of having to do it five times over.”
After it’s determined whether the players will be tried separately or individually, their lawyers will tell the judge whether they want to be tried by a judge or a jury. (If the players stand trial together and if even just one player wants a jury trial, all the players will have a jury trial.)
Jury trials have become complicated in recent years because lawyers on both sides are no longer allowed to use pre-emptory challenges to exclude prospective jurors, said Butt, who has no connection to the hockey case.
“There are risk elements both ways,” he said. “If you go with a judge, then it’s all or nothing with one person up there. If you go for a jury of 12 people and there’s one hold out, you have a hung jury, which means you have to have the trial all over again. The complainant would have to testify again. But there also are risks with juries. It’s possible there’s a perception that this is a case of elite privileged people in positions of power treating a woman as a plaything.”
It's also possible that Cunningham in the coming months will try to turn one of the defendants, offering a reduced sentence or withdrawn charges in exchange for their testimony against their former teammates, said Gary Ellis, a former head of the sex crimes unit with the Toronto Police Service.
“It only makes sense that the Crown would look to see if they can get someone to make a deal,” Ellis said in an interview with TSN.
Arun Maini, a Crown attorney from 1995-2003 who is now a defence lawyer in Toronto specializing in sexual assault cases, agreed that if a player who is charged could offer important information, Cunningham might be willing to lower charges.
To make such an offer, Cunningham would require the approval of her supervisors and it’s questionable that an approval would be granted, Butt said. Thanks to the high-profile nature of the hockey case, it’s likely that the Sexual Violence Advisory Group, a group made up of senior Crowns that was created to share best practices and review cases weeks after Ghomeshi’s acquittal, probably consulted on the hockey case before charges were laid, he said.
“If they didn’t have a strong case against each player, there’s no way they would be laying charges in the first place,” Butt said.
Several defence lawyers not involved with the case said it’s possible that the defence team will hire crisis-management and public relations firms, as well as private investigators to explore E.M.’s background, searching her social media and employment history.
“Your imagination is the limit for what you might look for,” Butt said. “A defence team is always looking for ways to undermine the credibility of a complainant. If they are regularly on social media spewing falsehoods, that might help. If the person has a discipline history at their job for untrustworthy behaviour, that could help. The defence would also seriously consider asking the judge to give them approval to obtain some private records like a complainant’s therapy records to look for inconsistencies in her statements. Even though most judges would not approve that request, the defence has an obligation to their clients to try.”
The lawyers leading each player’s legal team bring a wealth of experience to the case.
David Humphrey, who is McLeod’s lawyer, represented Nashville Predators star forward Ryan O’Reilly when he was arrested in 2015 in London for impaired driving. He was also hired to defend former Los Angeles Kings star Mike Richards when he was arrested in 2015 for allegedly bringing oxycodone across the U.S.-Canada border.
O’Reilly was found not guilty at a trial and the Crown dropped the charges against Richards before a trial.
“These lawyers in the hockey case are leaders in the profession,” Maini said. “When these lawyers speak over the coming months they will be careful to acknowledge MeToo and say we should listen to alleged victims, while also reminding people of the presumption of innocence and that there are two sides to every story.”
If this hockey case does advance to a trial, it will be one held in a climate that has changed significantly since Ghomeshi’s trial in 2016, said Nick Cake, who was a Crown attorney in Sarnia, Ont., from 2011-14 and who is now a defence lawyer in London.
“The pendulum has really swung, and the law has become far more protective of complainants over the past decade,” said Cake, who has no connection to the hockey case. “You used to be able to push on a cross a lot more. Ghomeshi changed the landscape.”
Ghomeshi, a popular and well-known CBC radio personality, went on trial in January 2016 after being charged in 2014 with four counts of sexual assault and one charge of choking following allegations made by three women.
During his trial, Ghomeshi’s lawyers confronted witnesses with pictures, emails, and other correspondence that had not been previously known to prosecutors.
After Ghomeshi’s acquittal, the federal government amended the criminal code. Now, any text messages or other communication the defence team wants to use in a trial must first be vetted by the judge.
A trial in the London case, if it happens, remains many months away, and the public won’t learn until then who will be called to testify.
E.M. alleged in her 2022 lawsuit that she was assaulted by eight players and TSN has confirmed that there were more than five hockey players in the hotel room at the time the alleged assault took place. Other players who were in the room are expected to be called to testify, according to a person familiar with the matter.
“I fully expect other players who were there will be subpoenaed,” Maini said. “And in Canada you can't ‘plead the Fifth’ and not answer questions. You are required to answer…”