WARNING: This article references sexual assault and may affect those who have experienced sexual violence or know someone affected by it.
A surveillance video shows the men arriving together, first-pumping the air outside Jack’s bar on London, Ont.’s Richmond Row, an establishment popular with university and college students as well as other young people.
The world junior, gold medal-winning hockey players bypass the line, which snakes down the sidewalk, speak to a bouncer and are ushered inside after their ID’s are checked.
The footage is from video from June 2018 that was played Monday at the trial of five of the players, who are now charged with one count each of sexual assault. Michael McLeod, Dillon Dubé, Cal Foote, Carter Hart ad Alex Formenton — who all had NHL careers at one point — pleaded not guilty on Friday.
McLeod has also pleaded not guilty to a charge of being party to the offence. In opening statements, the Crown said McLeod faces that added charge because he’s accused of encouraging and helping his teammates to engage in sexual activity with the complainant, known as E.M., without her consent.
Earlier Monday, the jury saw video of E.M. waiting in line to enter the same establishment with a friend. She’s seen going to an ATM and then to the bar, and drinking two shots.
On Tuesday, the jury is expected to see more videos from the bar and from the Delta Armouries, the hotel where the sexual assault is alleged to have taken place in the early-morning hours of June 19, 2018.
A jury was chosen on Friday and the trial began in earnest Monday, with the judge giving jurors instructions on how to consider the evidence that will be presented and the Crown outlining its case against the five men.
The men were in London for a gala celebrating their hockey win months earlier. On Monday morning, London police Det. Tiffany Waque, the Crown’s first witness, showed pictures pulled from social media of some of the men showing off their championship rings. Waque’s testimony will continue on Tuesday.
“This is a case about consent, and equally as important, this is a case about what is not consent. This case is not about whether E.M. said no, or removed herself from an unwelcome situation when she had the opportunity,” assistant Crown attorney Heather Donkers told the jury of nine women and five men.
“This case is about whether she voluntarily agreed to engage in each and every instance of sexual touching that took place, at the time that they happened. At the end of 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.”
The jury was told to leave behind their pre-conceived ideas about what constitutes sexual assault, what perpetrators of sexual assault look like or how someone responds to a sexual assault.
“You will have to make a conscious effort to resist and help others resist jumping to conclusions based on conscious or conscious biases based on gender, age, race or any other factor,” Justice Maria Carroccia told the jury.
The Crown must prove its case beyond a reasonable doubt for the jury to find the men guilty, she said.
“A reasonable doubt is not a far-fetched doubt. It’s a doubt based on reason and common sense, and is based on what the evidence tells you or doesn’t tell you.
“If at the end of the case, after assessing the evidence, you think that each of the men committed the offence he is charged with, you should find him guilty. But if at the end you are not sure he committed the offence, you must find him not guilty,” Carroccia said.
Several of the facts in the case are agreed to by the Crown and defence, and don’t have to be argued, the jury heard.
They are:
The jury is also given a sheet that lists who is in each screenshot of the Jack’s bar surveillance video, as well as a sheet that lists people who can be seen in the lobby of the Delta and what time they are seen there.
The woman, whose identity in court is protected by a publication ban, met the players at Jack’s Bar and Grill on the night of June 18, 2018, and into the early hours of June 19, Donkers 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.
McLeod and E.M. left Jack’s bar together 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,” the Crown lawyer 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 argued.
“The defendants took no steps to ensure there was affirmative consent when they touched her. Instead, they just did what they wanted.”
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.
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.
Hart isn’t currently in the sport, but McLeod and Dubé have been with Kontinental Hockey League (KHL) teams. Foote played in a Slovakian hockey league this season and Formenton has indicated he’s working in construction in Barrie, Ont.
Eight weeks have been set aside for the trial. Proceedings are expected to continue Tuesday, and CBC will continue to bring you live coverage by 10 a.m. ET.
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.
