Ottawa
—
Within minutes of starting to read her verdict, the words of Justice Maria Carroccia resonated across Canada as she bluntly assessed that, “I do not find the evidence of E.M. to be either credible or reliable.”
Observers in the courtroom reported hearing gasps of both shock and relief, reactions that mirrored those from many in Canada and beyond who have closely followed the troubling and at times, graphic, details of the case.
Five hockey players – Michael McLeod, Cal Foote, Carter Hart, Dillon Dube and Alex Formenton – were all acquitted on Thursday, according to the Associated Press, on charges of sexual assault in connection with a June 2018 incident at a hotel room in London, Ontario, when they were members of the country’s World Juniors hockey team.
During her testimony via video link, E.M. said that she was naked, drunk and scared in a hotel room when four men she did not invite showed up. She said she feared what they might do if she did not go along with their sexual demands. She added that she made the choice to dance and drink with them at a bar beforehand and had consensual sex with one of the players, but did not consent to sexual acts with others.
The Associated Press reported that Justice Carroccia read and detailed her decision for more than five hours, outlining the evidence, her assessment of that evidence and the reasoning that she says supported her acquittals.
But it was the reaction of E.M., their accuser, whose identity is protected by a publication ban, that many were curious about.
“She’s obviously very disappointed with the verdict and very disappointed with her Honour’s assessment of her honesty and reliability” said Karen Bellehumeur, a lawyer representing E.M., after the verdict.
Bellehumeur called her client E.M. a ‘hero’ saying E.M.’s purpose was standing up for herself and try to seek accountability. But in a disquieting accusation, she added that E.M. found her treatment at times during cross examination was insulting, unfair, mocking and disrespectful.
“I want people to understand that the entire interaction between the parties was probably about 7 hours and she (E.M.) faced 7 days of cross examination on those 7 hours so, think of that,” said Robert Talach in a phone interview from London, Ontario where the trial is being held.
Talach represented E.M. in her civil lawsuit against Hockey Canada that was settled in 2022, but he does not currently represent her.
“For all these people who say she had ulterior motives, there’s nothing in it for her in any meaningful way in going through this criminal process,” said Talach, pointing out that E.M. went to police right after the incident in 2018 but the case was dropped due to lack of evidence.
The details of this case, sometimes sexually graphic, were discussed and considered in Canada’s bedrooms and hockey rinks alike.
At issue from a legal perspective is what constitutes consent when it comes to sexual activity. At issue culturally is the behavior of Canada’s hockey prodigies and the conduct of Hockey Canada.
According to Canadian law, consent to sexual activity is defined in part by “…the voluntary agreement of the complainant to engage in the sexual activity in question. Conduct short of a voluntary agreement to engage in sexual activity does not constitute consent as a matter of law.”
Carroccia said that, “in this case, I have found actual consent…” adding that she believes E.M.’s behavior during the incident was “not motivated by fear,” Associated Press reported.
While in Canadian law consent must be ongoing and cannot be given after any sexual encounter, Justice Carroccia reportedly said she reviewed two short videos of E.M. taken by McLeod that defense lawyers claimed proved consent, and that she was also able to determine that EM was not intoxicated to the point of being unable to give consent.
E.M. is heard saying in the videos that it was “all consensual” and that she was ok.
After the verdict, prosecutors noted that they have 30 days to consider an appeal and that what they wanted was a fair trial to both the accused men and E.M. that was based on the evidence and the law and not based on “stereotypes and assumptions.”
“We want to thank E.M. for coming forward and for her strength in participating in this process,” said Meaghan Cunningham, an Ontario crown attorney outside the London courthouse moments after the verdict.
Canadian broadcaster TSN first reported that E.M. had settled a lawsuit with Hockey Canada – the nation’s governing body for the sport – and a cascade of developments followed, including June 2022 parliamentary hearings over Hockey Canada’s handling of the case, and July 2022 announcements that London police and Hockey Canada would reopen their investigations.
The now-cleared hockey players have said Hockey Canada did not inform them of the settlement.
David Humphrey, a lawyer for Michael McLeod called the verdict “just,” adding that his client has suffered significant damage to his career and reputation. And he singled out the conduct of Hockey Canada and how it first handled the allegations from E.M.
“The players were only told of the lawsuit and the settlement after the fact. Had they’d been consulted, they would have refused to settle and they would have vigorously contested E.M.’s allegations. That version of events dominated headlines and created the lasting and the false, a false impression of guilt,” said Humphrey outside the courtroom.
Few believe the reckoning for Canada’s hockey culture will end with this case. Writing online for The Conversation after the verdict was announced, academics Laura Misener and Treena Orchard posited that it is sports culture that should be on trial.
“Elite athletes often operate within environments where their talent grants them special status and access to resources — monetary and otherwise — that bolster a sense of entitlement. In some instances, sport organizations exacerbate this sentiment by protecting their star performers instead of addressing misconduct, which was reflected in this case,” says Misener and Orchard.
This month Hockey Canada published a progress report on the 2022 action plan it introduced as part of the fallout from this incident. Hockey Canada says all national team athletes, coaches and staff now undergo a mandatory enhanced screening process, and complete training on sexual violence and consent, however it acknowledges that “there is still more work to be done.”
During parliamentary hearings in June 2022, executives for Hockey Canada disclosed that the organization was notified of the incident the day after it was alleged to have taken place in 2018.
“We immediately initiated a process to investigate, beginning by contacting police. We commissioned an independent investigation and appointed an independent adjudication panel of judges to review the findings of that investigation,” said Tom Renney, Hockey Canada’s former CEO, during testimony.
While Renney confirmed during the hearings that Hockey Canada had settled a civil lawsuit that E.M. filed in April 2022, but he did not reveal the settlement amount.
In July 2022, Hockey Canada published a letter apologizing for it said was inadequate action regarding the assault allegations, and said it was reopening an internal investigation. Three months later, the organization announced its CEO and board of directors were being replaced.
