Hockey Canada sexual assault trial 'reinvigorated' talk on complex issues of consent, sports culture

WARNING: This article gives graphic details of alleged sexual assault and may affect those who have experienced​ ​​​sexual violence or know someone impacted by it.

Regardless of the outcome of the sexual assault trial for five former world junior hockey players, the issues it's raised — about hockey culture, consent and how the legal system handles such complaints — will be debated long after the judge hands down her decisions Thursday in London, Ont., suggest legal experts and advocates.

It's expected Superior Court Justice Maria Carroccia will give lengthy reasons for her rulings after the eight-week trial that wrapped in mid-June. Carter Hart, Alex Formenton, Dillon Dubé and Cal Foote and Michael McLeod have all pleaded not guilty. The case centres on a woman, known in court as E.M. due to a standard publication ban, who testified she was sexually assaulted over several hours in a London hotel in June 2018.

The decisions will be "just one part of a much bigger story and saga around both the lives that are implicated in this particular case, but also how we deal with sexual assault in the criminal justice system, and how we deal with sexual assault in sport and in society in general," said Melanie Randall, a law professor at London's Western University.

"The case is really important and significant because it throws into stark relief so many bigger issues."

Carroccia will explain the legal reasoning for her verdict, something that wouldn't happen if jurors were deciding the outcome because jury deliberations are private in Canada, Randall said.

"I'm really glad it's a judge because we will hear her articulate a rationale for why she found what she did, and that's really, really important."

Each of the five accused men, who all went on to NHL careers at one point, has been charged with one count of sexual assault. McLeod is the only one facing another charge, of being a party to the offence, for allegedly inviting his teammates to his hotel room for sex acts with E.M. without her knowledge or permission.

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Brandon Trask, a University of Manitoba associate law professor, describes the case as "an onion" with many layers, from the criminal to the societal.

"Even if the result is that nobody is found guilty, I don't think any of the accused should be proud of their actions," Trask said.

"This should be quite eye-opening for everybody about the culture in relation to hockey. Collectively we need to say as a society, 'We're not going to accept this.' It doesn't hinge on whether this is ultimately criminal behaviours or not. It is not acceptable.

"Determining whether something is good or bad is not the same as determining whether something is criminal or not criminal. You can have horrible behaviour that isn't proven to be criminal beyond a reasonable doubt, but it's still horrible behaviour."

During the trial, which began in early April, five defence teams grilled E.M. in an effort to raise questions about her credibility and reliability as she testified over nine days. There was also a mistrial and two juries were dismissed.

"It shows how incredibly challenging it is to prosecute sexual assault cases," Randall said.

Trials are an "uphill battle for sexual assault complainants," who are faced with a system that "vigorously protects the rights of the accused," she said.

"It's challenging with an adversarial system. It is really polarizing and it's all or nothing, and it does create resistance to any kind of admission of responsibility."

Some have suggested creating a process in which the accused starts by acknowledging wrongdoing, a "radical shift" from the current justice system, Randall added.

In opening statements, Crown prosecutor Meaghan Cunningham emphasized that the case hinges on what is and isn't consent.

Among the agreed facts is that E.M. initially had consensual sex with McLeod after a night of drinking at Jack's bar.

E.M., however, testified McLeod's teammates ended up showing up in his hotel room while she was naked, and she wasn't alerted about that. She said she went along with what the men wanted after they put a bed sheet on the ground and asked her to touch herself sexually because she was afraid, and that her mind separated from her body.

WATCH | CBC's Katie Nicholson breaks down what happened during the world juniors trial:

The sexual assault trial of five former world junior hockey players stretched across three months in London, Ont., before finally coming to a close with the last witness. CBC’s Katie Nicholson breaks down some of the key moments and testimony.

E.M., who was 20 in June 2018, also testified she did not consent to the various sexual encounters, including oral sex, vaginal sex, buttocks slapping and the splits that Foote allegedly did over her face while he was naked.

According to the defence, E.M. aggressively egged the men on, asking them to have sex with her and chirping them when they did not do so quickly enough. McLeod recorded two videos after the sexual encounters in which E.M. is seen saying she consented.

However, E.M. testified she didn't remember the videos, and legally, they are "almost useless," Trask said, "because consent needs to be contemporaneous with the actions that took place."

Conversations about consent and toxic masculinity started long ago, but were "reinvigorated" and "escalated" by the widely followed case, Randall said.

"It really does show some of the gender dynamics that are still alive and well in these kinds of situations, and also the complex psychology of how people respond when they're feeling threatened and afraid."

Pretty much daily during the trial's proceedings, supporters of E.M. made their presence known outside the London courthouse. But the case also drew some people supporting the accused men.

Still, the trial showcased that some young men don't understand power dynamics and consent, said Katreena Scott, academic director of the Centre for Research and Education on Violence Against Women and Children at London's Western University.

"It was a group of young men and one young woman. We have a situation where we have a group of young men who used a young woman essentially as a sex object," Scott said. "What do we need to do to create healthier sexual norms and relationships between young men and women? This trial for me is also about, 'What does a respectful sexual relationship look like?'"

Hockey Canada came under scrutiny after the world junior hockey allegations first surfaced, as first reported by TSN's Rick Westhead in 2022. The hockey organization had a fund set up, using registration fees across the country, to pay for sexual assault settlements, including one to E.M. after police closed the initial criminal investigation.

"This is a group of young men who know each other, who have a shared bond, who have important relationships among each other," Scott said.

"They have influence over each other and also the ability for any one of them to say, 'Wait. Stop. I don't know if this is OK.' What kind of education are they getting and what kind of norms are happening that entitle young men to feel that when they're part of a sports organization and they have this status, they have certain expectations."

Carroccia is expected to begin reading her decisions starting around 10 am ET.