What the jury didn’t hear at the Hockey Canada sex-assault trial
The London courthouse in London, Ont., on May 16.Nicole Osborne/The Globe and Mail
Hockey Canada “coerced” interviews from three of the five former world junior hockey players now on trial for sexual assault by threatening to publicly shame them, an Ontario Superior Court judge ruled last year as he blocked the men’s statements from being used against them in court.
Ontario Superior Court Justice Bruce Thomas also said that Hockey Canada had agreed – without the players’ knowledge – to share its investigation’s findings with police. He ruled that allowing the statements into court would jeopardize the players’ rights to a fair trial.
The ruling meant that anything the players told lawyers working for Hockey Canada during the amateur sport organization’s internal investigation was excluded from the trial and kept from the jury. That decision, and the judge’s rationale, could not be reported due to a publication ban.
The publication ban was lifted on Friday after Justice Maria Carroccia dismissed the jury and said she would instead hear the case herself.
Second jury dismissed in Hockey Canada sex-assault trial, case will be heard by judge alone
Michael McLeod, Alex Formenton, Dillon Dubé, Carter Hart and Cal Foote are charged with sexually assaulting a woman, known publicly only as E.M., in a London, Ont., hotel room in June, 2018. Mr. McLeod faces a second charge of being a party to sexual assault. Each has pleaded not guilty.
While Hockey Canada and London police both investigated the incident in 2018, they each launched new probes in 2022 after the public learned that Hockey Canada quietly settled a lawsuit filed by E.M. For its second investigation, Hockey Canada hired Toronto lawyer Danielle Robitaille and leaned on the players to co-operate.
During pretrial hearings last year, the Crown sought to have the players’ statements to Ms. Robitaille admitted into evidence, in part to compare them with what the players told police investigators during the criminal investigation and highlight potential inconsistencies.
But the lawyers for Mr. McLeod, Mr. Dubé and Mr. Formenton objected, arguing that allowing the interviews into evidence would violate the men’s rights.
Justice Thomas noted the players were threatened with a lifetime ban from Hockey Canada and that their identities would be disclosed if they failed to participate.
He said those threats from Hockey Canada meant the players’ statements were not voluntary and that allowing them into the evidence would violate the accused’s rights to a fair trial.
“Whether you call it compelled or coerced, they effectively were left with a choice, I suppose, but really no choice at all,” Justice Thomas told court last November.
Crown attorneys had argued that the statements to Hockey Canada would benefit the prosecution if that evidence were allowed.
“Fairness doesn’t require the accused to be protected from inconsistencies in their interviews or facts that they’ve acknowledged but would now prefer to keep hidden in a trial,” Crown Attorney Meaghan Cunningham told the court.
The ruling also said Hockey Canada was simultaneously – and without the players’ knowledge – offering to provide police its investigative file without a production order.
The judge said Canada’s courts cannot condone such investigative tactics. “The admission of these statements for the purpose of cross-examination would be a significant compromise to trial fairness and, as a result, those statements are excluded,” Justice Thomas said.
The 2022 Hockey Canada interviews were conducted by Toronto lawyer Danielle Robitaille on behalf of the organization. She interviewed Mr. McLeod on Oct. 1, 2022, Mr. Dubé on Oct. 4, 2022, and Mr. Formenton on Oct. 14 and 18.
Weeks after those interviews, a court granted the police a production order for Ms. Robitaille’s investigative file. The four Hockey Canada statements were handed over on Nov. 17, 2022. It was around that time that Hockey Canada then cancelled scheduled interviews with the other two accused, Mr. Hart and Mr. Foote.
In his ruling, Justice Thomas said that all this was unfair. He noted that Hockey Canada changed its code of conduct in 2022 to allow the organization to publicly name players if they failed to co-operate with an internal investigation.
“In June, 2022, Hockey Canada introduced a new ‘tool’ which could be used by its investigator. That tool was created by amendments to the Hockey Canada Code of Conduct,” he wrote.
His ruling highlights how the penalties for breaching these altered rules were severe. “By threatening a lifetime ban and public disclosure of the players’ identities, Hockey Canada effectively imposed disciplinary measures without due process.”
Other evidence shows that some of the players on the world junior hockey team gave statements to police in 2018. For example, Mr. Formenton gave a videotaped statement to a London Police Service detective in November, 2018.
Excerpts from a video interview Alex Formenton gave to London police on Nov. 24, 2018. He is one of five former members of Canada’s 2018 world junior hockey team on trial for the alleged sexual assault of a woman in a London hotel room on June 19, 2018. The players have pleaded not guilty.
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Mr. Formenton’s lawyers argued the police statement should be excluded because their client was never formally told he was a suspect in a sexual assault. Justice Thomas, however, ruled in December that the video was admissible because it was voluntary.
“There is no evidence of threats, inducements, tricks, or oppressive or overpowering circumstances,” Justice Thomas said.
That video became an exhibit at pretrial and it shows Mr. Formenton saying that he had consensual intercourse with E.M. in the hotel bathroom. He said he had felt pressured to do so. “I volunteered but I honestly didn’t want to do it,” he said.
Mr. Formenton’s 2018 video has not yet been presented in the criminal trial. Court records also show that Mr. McLeod gave a statement to the London Police Service in November, 2018.