WARNING: This story contains graphic details of alleged sexual assault and might affect those who have experienced sexual violence or know someone who’s been impacted by it.
In a stunning move, the jury hearing the case against five former world junior hockey players charged with sexually assaulting a woman in a London, Ont., hotel room in 2018 was discharged and the case is now proceeding with just a judge.
It’s the second time the entire trial has been almost derailed, and we can now report details of what’s been happening during amid proceedings that we couldn’t before.
Dillon Dubé, Cal Foote, Alex Formenton, Carter Hart and Michael McLeod have pleaded not guilty. The complainant is known as E.M. in court due to a standard publication ban.
The case dates back to June 2018, when the hockey team was in London for a Hockey Canada gala celebrating the world championship they won months earlier.
The latest courtroom turn of events happened Thursday, when a note was sent to the judge by a juror in the trial, which got underway in late April. The note outlined concerns that Dan Brown and Hilary Dudding, lawyers representing Formenton, appeared “every day” to be whispering to each other and laughing “as if they are discussing our [jurors’] appearance” as they entered the courtroom.
“This is unprofessional and unacceptable,” the note said.
After speaking, all five defence teams asked for a mistrial or for the jury to be discharged and the case to proceed with just a judge. The lawyers cited perceived “prejudice” that the jurors might have against the defence and the “chilling effect” on those lawyers, who were worried to “zealously” defend their clients lest their gestures be misinterpreted by the jury.
Assistant Crown attorney Meaghan Cunningham is seen earlier in the trial, which began April 25 with jury selection. (Alexandra Newbould/CBC)
Assistant Crown attorney Meaghan Cunningham argued that jurors could be asked if they could set aside any impressions they may have formed of the defence lawyers and given instructions reminding them to only consider the evidence before them, and to put out of their minds any negative ideas about Brown and Dudding.
Carroccia ruled Friday, after taking the evening to consider the options, that the trial would proceed with her oversight alone.
Because Carroccia let the jury go, the publication ban on anything heard without the jury present has now lifted, so we are able to report more of what happened since proceedings began.
Lawyers for Formenton issue statement
Although both the Crown and defence agreed to the jury’s discharge and the judge-only proceedings, the decision drew swift reaction from lawyers for Formenton.
“We are not in the habit of making public statements during a trial, and this is likely to be the only time we do so in this case,” said a letter sent from Brown to the media on behalf of his client’s legal team.
The letter said discharging the jury “was a regrettable development” for Formenton, and noted, “He had very much wanted to be tried by a jury of his peers and has now lost that opportunity.
“We, his counsel, found ourselves involved in the unusual chain of events that led to this outcome.”
It went on to give background on what led to the judge’s move Friday.
“In short, a juror came to somehow believe that our courtroom demeanour was disrespectful of her. This was a [sic] unfortunate misinterpretation. No defence counsel would risk alienating a juror, and nothing could be further from the truth in this instance. … The very idea of counsel making light of a juror is illogical and runs directly counter to our purpose and function,” the letter said.
“In a larger sense, perceptions and appearances play a central role in this trial, particularly, appearances that have been captured on videotape and perceptions about courtroom testimony,” the letter adds. “If a single juror were prone to leap to unwarranted conclusions — and potentially impress these erroneous conclusions on their fellow jurors — the ends of justice and the right to a fair trial would be jeopardized.
“Accordingly, we will now be going forward with a trial by judge alone. We have every confidence that our trial judge will ensure a full and fair proceeding.”
What we can now report
This trial began April 25 with selection of a new jury, after a mistrial was declared in the first trial and jurors were also discharged.
Just a day into that initial trial — after getting instructions from the judge, hearing the Crown’s opening statement and listening to testimony from a police officer — a juror reported Dudding had spoken to her during lunch while at the Covent Garden Market. The popular London spot has different food options and is close to the courthouse.
WATCH | WARNING: This video contains graphic details: Defence grills complainant in London hockey trial: 
Defence presses complainant on memory, drinking at jr. hockey sexual assault trial
WARNING: Video contains disturbing details | Tensions flared outside court as cross-examination continued in the Hockey Canada sexual assault trial. The complainant faced more questions about her memory and how much she drank the night of the alleged assault.
That juror told another juror about the interaction, and there was discussion by the group about whether Dudding’s actions were “inappropriate.”
Two jurors were called in to give their recollection of the incident. One of the two said she thought Dudding said something like, “‘There was a lot of head nodding this morning,'” about the jury’s reaction during the Crown’s opening statements.
Dudding denied saying anything to the juror beyond that she was sorry for bumping into her, and the interaction was deemed innocuous by the judge. Defence lawyers argued jurors were thinking negatively about them before the trial even got going.
“The entire jury is now fixed that at least one member of the team can’t go 24 hours without breaking your honour’s rules. At least one of us has been branded as rule breakers before we’ve gotten up to address them,” argued Megan Savard, Hart’s lawyer.
“To characterize this as innocuous is to ignore the severity of what was described by that witness.”
Carroccia declared a mistrial and released the jury, partly because there were 200 potential jurors who hadn’t been chosen initially that were already on standby. The new trial started with jury selection on April 25.
Multiple objections during re-exam
During the almost eight full days of cross-examination of E.M. by five separate defence lawyers, there were few objections from the Crown.
But when Cunningham began her re-examination, a chance to clarify things she had said during cross-exams, there were multiple objections from defence lawyers, forcing the jury and E.M. out of the room for sometimes lengthy periods of time.
Alex Formenton, right, walks with his lawyer, Dan Brown, outside the courthouse. After Justice Maria Carroccia dismissed the jury Friday, Brown issued a letter on behalf of Formenton’s legal team. (Geoff Robins/The Canadian Press)
During one memorable objection, lawyers argued about whether there was a difference between saying something was “on” someone’s face or “in” someone’s face. The discussion happened after questions about Foote doing the splits overtop of E.M.’s face, and included arguments about whether it was implied that Foote was naked, given his genitals were “in” or “on” E.M.’s face.
The problem with supporters
Supporters for E.M. began showing up on the courtroom steps when she started her marathon testimony and cross-examination. But lawyers worried their presence would be a problem for jurors, who use the same entrance as everyone else and had to walk past signs of support for one side.
“They are on the steps and they are targeting our clients,” said Foote’s lawyer, Julianna Greenspan. “It is quiet as a mouse until we turn a corner. It is an act of intimidation.”
Arrangements were made for the jury to use a different door to enter and exit the courtroom so they would not walk past the supporters.
However, on the fourth day of E.M.’s testimony, some of the protesters got into the courtroom itself with placards and “were waving them while people were coming through,” Greenspan said.
“Getting yelled at and screamed at, it’s not an act of free expression — it’s an act of intimidation.”
Carroccia spoke to London police, who are in charge of court security, to make sure protesters with signs didn’t enter the building. The incident was chalked up to inexperienced security staff.
As E.M.’s testimony continued, the crowd outside the courthouse grew, as did the chirping of the accused and their lawyers, including commenting on the suits they were wearing and how tall or short they are. One TikToker, who has since deleted her account, had a large following for the taunts she threw at the accused men.
Front Burner25:24The latest in the hockey sex assault trial
Content warning: this conversation contains graphic details of an alleged sexual assault so please take care while listening.
Proceedings began late last month in a trial that has been seven years in the making.
It involves five former members of Canada’s gold medal winning 2018 world juniors hockey team. They’ve been accused of sexually assaulting a woman who is known as E.M.
All five have pleaded not guilty.
This same alleged assault made headlines a few years back when it was revealed that Hockey Canada quietly settled a civil suit over it, and had settled other unrelated cases as well.
The CEO and entire board of Hockey Canada resigned. It ignited a fierce debate over hockey culture in this country.
The ongoing criminal trial has put that debate back in the crosshairs as the woman at the centre wrapped up a marathon seven day cross examination by multiple lawyers this week.
Today we are going to talk about what has transpired in the case so far and the larger questions about hockey culture with Katie Strang, a reporter with The Athletic.
For transcripts of Front Burner, please visit: https://www.cbc.ca/radio/frontburner/transcripts [https://www.cbc.ca/radio/frontburner/transcripts]
In another memorable exchange, a woman called out to Brown as he made his way into court. When he walked over, she said, “Is it you today or your alter ego?” referencing Brown’s characterization of E.M. as “sober” E.M. and her alter ego as “fun” E.M.
Dealing with courthouse technology
London’s courthouse is old and the three elevators that serve the building are notoriously unreliable. One has been out of service for months and the other two stop sometimes between floors, particularly if more than seven people are inside at once.
The defence team numbers 15 people (five accused with two lawyers each), plus family members, and there are usually at least seven reporters in the main courtroom at once. Add to that the courtroom staff, the 14 jurors and two Crown attorneys, and you have a lot of waiting for the elevators, especially because of the other trials and proceedings on other floors.
The building’s air conditioning has also been either on the fritz or not turned on for some of the trial, making for a hot, stuffy courtroom.
At least once, a lawyer remarked that one juror appeared to be nodding off. The room was so hot that a piece of equipment used to play some video surveillance was overheating and the jury had to be sent home early for the issue to be fixed.
On another day, the use of the closed-circuit television (CCTV) room, the webinar for media watching remotely and in the overflow room, as well as general internet issues caused problems for E.M. as she was testifying via CCTV broadcast into the main courtroom — video being played as part of the proceedings kept skipping. The webinar had to be shut down so the video could be played for the witness without issue.
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.
