WARNING: This article references sexual assault and may affect those who have experienced sexual violence or know someone impacted by it.
On Thursday, Justice Maria Carroccia will deliver her decisions in the world junior hockey sexual assault trial — a case that dates back to 2018 and has manoeuvred numerous curves as it played out over eight weeks in a London, Ont., court.
Five former players are charged with sexually assaulting a woman, known as E.M. due to a standard publication ban, in a hotel room in June 2018 while the team was in the southwestern Ontario city to celebrate their world championship win months earlier.
Cal Foote, Dillon Dubé, Alex Formenton, Carter Hart and Michael McLeod have all pleaded not guilty. McLeod faces an additional charge of being party to an offence for his alleged role in facilitating the assaults.
The sexual assault charges carry a maximum prison sentence of 10 years.
The trial, which began in Superior Court in early April and wrapped with closing arguments in mid-June, was roiled by procedural drama.
A mistrial was declared within the first week, and a new jury had to be selected after a defence lawyer and a juror had a brief interaction over the lunch hour. A second jury was discharged after a juror sent a note accusing one of the defence teams of making fun of the jury. Carroccia and the lawyers then opted to move forward with a judge-alone trial.
There were numerous arguments and trials within the trial about evidence, witnesses testifying to not remembering certain things under questioning, a long and tense cross-examination of E.M., as well as protests outside the court by people supporting E.M., and others backing the players.
At the outset, the Crown emphasized that what is and isn’t consent would be key in the trial.
Leading up to Thursday’s rulings, CBC spoke to Toronto-based lawyers Andrew Furgiuele and Gillian Hnatiw, who are not associated with the trial, to get insight and their views on possible outcomes.
“They’re done. They are free to go and subject to any potential Crown appeal,” said Furgiuele, a criminal defence lawyer. “Their time as accused people would be over and they would be moving on with their lives.
“That would be the end of the case and the end of the road for the prosecution in terms of trying to get a conviction against them. They’d be free.”
“Then the judge will have to decide whether they will continue to be released on bail or whether they’ll be held pending sentencing,” said Hnatiw, a civil litigator who frequently handles sexual assault cases.
“I expect that they would be released and that a date for sentencing would be set.”
“The people who are found not guilty move on,” Furgiuele said.
“For the individuals who would be found guilty on that hypothetical, they would move towards sentencing. And then after the sentencing is done, if they wish to appeal their conviction, that would happen after that.”
Then there is McLeod, the only former player facing an extra charge, of being party to the offence.
“I think that it would be possible for him to be party to someone else’s offence,” said Hnatiw. “And so he could, in theory, be acquitted of sexual assault, but be found party to someone else’s offence.”
“There are guidelines that sentences are supposed to be pronounced, generally speaking, within six to nine months,” said Furgiuele.
“Realistically, by the time both sides, both the Crown and the defence, got all the sentencing materials that they would want to get together and time was made for a sentencing hearing, you’d be looking at a few months.”
Typically, before sentencing, judges will consider the background of each individual and their psychological states, said Hnatiw. They would also consider whether it was a first offence and whether the individual expressed remorse at the sentencing hearing.
If the Crown doesn’t like any of Carroccia’s decisions, it has 30 days to file a notice of appeal, which would set out legal flaws in her reasoning.
“The reasons are her roadmap, her legal roadmap as to how she made her decision. And those reasons are ultimately what would need to be scrutinized before either the Crown or the defence could assess whether they had much of a chance on appeal at all,” said Hnatiw.
“After that, it will go quiet for some time because they will be ordering and preparing the transcripts of all the evidence from the trial.”
Closing arguments wrap at hockey sexual assault trial
Hnatiw said there typically might not be any new evidence brought before a Court of Appeal.
“They’re really just scrutinizing what was before the trial judge and listening to arguments from lawyers about whether she got something wrong. You can obviously bring an application for fresh evidence, but that’s a rabbit hole.”
However, Carroccia did rule to exclude some evidence from the trial: a text exchange between two witnesses described Dubé slapping E.M.’s buttocks, which the Crown fought to use.
“If the Crown was to appeal any of these rulings and say that if we’d have been permitted to introduce this evidence, then the verdict may have been different, then they would be able to bring that before the Court of Appeal as part of the paper record,” said Hnatiw.
“It’s very, very difficult for the Crown on appeal to get a conviction entered,” said Furgiuele.
He said the Crown would have to prove a significant error in the judge’s legal reasoning and that the reasoning led to the acquittal.
“Those would be the hurdles they would have to go over to convince the Appeal Court to overturn the acquittal and order a new trial.”
Hockey Canada sexual assault trial recap
Like the Crown, the defence teams have 30 days to file a notice of appeal.
“After sentencing is done, they would then go to file a notice at the Court of Appeal to signal their intention to appeal,” Furgiuele said.
“Accused people who are found guilty and then appeal, they have slightly broader rights of appeal. They can appeal questions of fact, so they can appeal that there’s been a misapprehension of a fact, as well as all of the legal errors, or errors in a legal analysis.”
The statistics, generally speaking, are not good for individuals who appeal, said Furgiuele
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 Sexual Violence Association of Canada database.
