WARNING: This article may affect those who have experienced sexual violence or know someone who’s been impacted by it.
The woman at the centre of the case against five former world junior hockey players accused of sexual assault didn’t say “no” and wasn’t physically restrained, but she also didn’t consent to what happened in a hotel room in June 2018, the Crown said during opening statements in London, Ont., on Wednesday.
“This is a case about consent and equally as important, this is a case about what is not consent,” assistant Crown prosecutor Heather Donkers told 14 jurors.
The accused are Michael McLeod, Dillon Dubé, Cal Foote, Alex Formenton and Carter Hart, who all went on to sign with NHL teams after junior careers that saw the 2018 Canadian squad win the world title.
All five men are charged with one count of sexual assault. McLeod faces an additional charge — of being a party to an offence — allegedly for his role in helping and encouraging his teammates to engage sexually with the complainant even though she didn’t consent, Donkers said. All five men have pleaded not guilty.
Jury selection wrapped up Tuesday, the same day it started in London’s Superior Court.
For the first time, on Wednesday, the jury — and the public — heard a roadmap of the Crown’s case, expected to be presented over about eight weeks with Justice Maria Carroccia presiding.
The woman, known as E.M. in the case because a publication ban protects her identity, met the players at Jack’s Bar and Grill, a popular nightclub, on the night of June 18, 2018, and into the early hours of June 19, Bonkers said. She was at the bar with friends, and the players went there after a gala celebrating their world junior hockey gold medal months earlier.
“At this trial, we will ask you to find each of the five defendants guilty of sexual assault because they touched E.M. sexually without her voluntary agreement to each act when it took place,” Donkers said.
Jurors should set aside their pre-conceived ideas and judgments about what they think constitutes a sexual assault, she added.
The Crown and defence have agreed on several facts, including:
Batherson is a right winger with the Ottawa Senators, who are now in a first-round playoff series with the Toronto Maple Leafs.
Trial begins for 5 former Team Canada junior hockey players
At the time the charges were announced, McLeod and Foote were with the New Jersey Devils, Dubé was with the Calgary Flames and Hart was with the Philadelphia Flyers. Formenton was signed by the Ottawa Senators but was playing in Switzerland. Foote and Hart aren’t currently in the sport, but McLeod and Dubé have been playing with Kontinental Hockey League (KHL) teams. Formenton has indicated he’s working in construction in Barrie, Ont.
Other members of the 2018 world junior hockey team also went on to play professional hockey.
On Wednesday, the judge reminded the jury the accused are presumed innocent. They don’t have to testify or prove their innocence. It is the Crown that has to prove beyond a reasonable doubt that they are guilty.
The fact they were arrested and charged has no bearing on whether or not they are guilty, Carroccia told the jury.
Reasonable doubt is based on reason and common sense, the evidence, and what the evidence does and does not show, she said.
“It’s not enough to believe that the accused are probably guilty or likely guilty. If that’s what you think, you have to find them not guilty.”
But it’s also nearly impossible to know anything with absolute certainty.
“If at the end of this trial you are sure that [the accused] committed the offence, you should find him guilty. But if at the end you are not sure that he committed the offence, then you must find him not guilty.”
McLeod and E.M. left Jack’s bar together that night and had consensual sex in his hotel room, the Crown said. He then started texting people, and the jury will see texts that include a message McLeod sent to a group chat asking “‘who wants to be in a 3-way quick. 209 -mikey.'”
According to the Crown, E.M. will testify she “felt drunk, surprised by what was happening and was uncertain how to react,” lying on the bed naked as more men began arriving. She went along with what the men wanted because she was “drunk, uncomfortable and she did not know what would happen if she did anything else,” Donkers said.
Each of the five accused had sexual contact with E.M. “without her voluntary agreement to the specific acts that took place,” Donkers added.
The jury will also see videos from McLeod’s phone that show E.M. saying “this was all consensual,” but that does not meet the legal definition of consent, the Crown said.
“The defendants took no steps to ensure there was affirmative consent when they touched her. Instead, they just did what they wanted,” Donkers said.
E.M. left the hotel room and called a friend, crying, before going home and crying in the shower, Donkers said. Police were contacted and the jury was told they would see texts among the players trying to co-ordinate their stories for investigators as well as texts asking E.M., to “make this go away,” the lawyer added.
The jury was expected to hear from a detective who would start to lead them through the surveillance video from Jack’s bar that night, but a technical issue delayed the playing of the footage.
After lunch, the jury was dismissed for the day because of a matter that arose during lunch that the judge had to think about and discuss with the lawyers. Details of the matter that led to proceedings ending early can’t be made public as journalists aren’t allowed to report what happens in the jury’s absence.
The trial is expected to resume at 10 a.m. ET on Thursday.
If you’re in immediate danger or fear for your safety or that of others around you, please call 911. For support in your area, you can look for crisis lines and local services via the Ending Violence Association of Canada database.
