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Justice Maria Carroccia found five members of Canada’s 2018 world junior hockey team not guilty of sexual assault.Alexandra Newbould/The Canadian Press
The key issue in the sexual-assault trial of five former members of Canada’s national junior hockey team, which ended in an acquittal on Thursday for all five men, was whether the complainant voluntarily consented to the sexual activity.
The Crown had to prove beyond a reasonable doubt that E.M., as she was known to protect her identity, did not consent when she was with the five players in a hotel room in London, Ont., in June, 2018.
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Ontario Superior Court Justice Maria Carroccia not only found that the Crown didn’t prove its case but also concluded that E.M. was an unreliable witness and said the woman did in fact consent.
Here’s how Justice Carroccia arrived at her ruling.
Credibility and reliability
Credibility means truthfulness; reliability means accuracy. Justice Carroccia found E.M. to have neither. Hurting her reliability, E.M. filled gaps in her memory with assumptions, the judge said.
Why was she perceived not to be telling the truth? The judge found that E.M. was deliberately vague in answering important questions from defence lawyers, and used phrases like “my truth,” blurring the lines between her views and objective truth. E.M. said during cross-examination that her weight was 120 pounds, to be consistent with what she told police in 2018, even though she knew after being weighed by a nurse in 2018 that it was 138.
Justice Carroccia “did a thorough, by-the-book assessment of a witness’s credibility and reliability after reminding herself that was her job, not to make a moral judgment,” said criminal-defence lawyer Reid Rusonik, who was not involved in the case.
Actual consent
Justice Carroccia said she found “actual consent” from the complainant, finding as a fact that she made comments asking if one of the players was going to have sex with her and masturbating in front of some of the men.
“The trial judge did not have to find actual consent to enter acquittals,” said criminal-defence lawyer Chris Rudnicki, who was not involved in the case. “She could have simply found that the Crown failed to prove the absence of consent beyond a reasonable doubt, or simply said ‘after hearing all of the evidence, I am not sure whether the complainant consented.’ It is interesting that she chose to go further and positively find the presence of consent.”
Intoxication
E.M. had several drinks before she went to the bar where she met the players, and several more at the bar. She testified that she was vulnerable and unable to think clearly and make choices because of her inebriation. The Crown could not claim she was too intoxicated to have the capacity to consent, because she told police and testified at trial that she had consensual sex with one of the accused, Michael McLeod.
The criminal charges related to activity that followed, and she had stopped drinking by then. Justice Carroccia said E.M. exaggerated her level of intoxication. She said video from the bar and the hotel showed her to be walking normally, even in heels, and a video shot in the hotel room showed her not to be slurring her words. The judge did say, though, that intoxication can lead to disinhibition.
Fear and coercion
There was testimony from some players, including teammates of the accused, that the complainant had asked for sex using vulgar terms and insults. She said those terms didn’t sound like something she would say. She did say she acted the part of a porn star to survive the night. She said she was terrified and fearful – which in law, would nullify the possibility of consent.
Justice Carroccia found that she had 15 minutes, after the first two visitors to the hotel room left, where she was alone with Mr. McLeod and could have left, but chose not to. Instead, she emerged naked from the bathroom, though her clothes were there, as other men arrived. In the video shot without her knowledge, she did not seem fearful, the judge said.
The men’s behaviour
Justice Carroccia said it was not the court’s job “to make determinations about the morality or propriety of the conduct of any of the persons involved in these events.” Her job was solely to determine whether the Crown proved the charges beyond a reasonable doubt.
In ruling that E.M. consented, rather than that the men developed an honest but mistaken belief that she had, the judge did not have to look at whether the accused had taken reasonable steps to ascertain whether the consent was truly voluntary, or coerced, said professor Daphne Gilbert, who teaches law at the University of Ottawa.
“The reasonable-steps requirement is heightened depending on circumstances. She could have talked about how up to 10 men (all more or less clothed) who know each other but do not know her − some don’t even know her name − might have been intimidating to the only naked woman in the room.” Her intoxication should also have strengthened the reasonable-steps requirement, Prof. Gilbert added.
“By choosing the path to acquittal which is the most basic – ‘I don’t believe the complainant’ – the men’s behaviour was unexamined,” she said. “No one I have talked to who are parents of boys or girls thinks that the men behaved appropriately that night − and she didn’t have a word to say about that.”
The potential for an appeal
Appeal courts tend to defer to the credibility rulings of trial judges, because the trial judges were present for the testimony. Criminal-defence lawyers Mona Duckett and Jeff Manishen, neither of whom were involved in the case, both said they doubt an appeal would succeed. Mr. Manishen said the appeal court “would most likely conclude that any error on a particular point of evidence would not have amounted to a substantial wrong or miscarriage of justice so as to justify ordering a new trial.”
Special to The Globe and Mail
