Courtroom primer: 10 questions to consider as trial looms for former World Junior players

Alex Formenton, left, Cal Foote, Michael McLeod, Dillon Dube and Carter Hart. THE CANADIAN PRESS/AP-Matt Slocum, Noah K. Murray, Matt Slocum, Paul Sancya, Corey Sipkin

Next Tuesday in a courtroom in London, Ont., five former members of Canada’s 2018 World Juniors team go on trial, 15 months after they were charged with sexual assault.

Michael McLeod, Carter Hart, Alex Formenton, Cal Foote, and Dillon Dube have all pleaded not guilty. McLeod faces a second sexual assault charge as a party to the offence.

A woman referred to in court documents as E.M. told police in June 2018 that she had been sexually assaulted days earlier in a hotel in London following a Hockey Canada golf and gala event. London police and Hockey Canada investigated the allegation, but both closed their investigations in 2019 without laying any charges.

The public first learned about the case three years later, in May 2022, when TSN reported that E.M. had filed and then quickly settled a $3.5 million lawsuit against Hockey Canada, the Canadian Hockey League, and eight “John Doe” hockey players.

The reporting led to a series of parliamentary hearings in Ottawa, a number of Hockey Canada’s corporate sponsors pausing or ending their relationship with the organization, and the ouster of a number of top Hockey Canada officials after the revelation that the national governing body had used money from minor-hockey registrations to build a secret slush fund that was used to pay off sexual assault allegations.

The case also led to the government creating the Office of the Sport Integrity Commissioner to receive and investigate allegations of misconduct involving national team-level players, coaches and officials. In April, that office handed off responsibilities for such investigations to the Canadian Centre for Ethics in Sport. Hockey Canada has also created a new system for investigating allegations of misconduct at other levels of hockey.

In June 2022, London police re-opened its investigation into the allegations involving the World Junior team players. In January of 2024, McLeod, Hart, Formenton, Foote, and Dube were charged.

Here are some facts about Canada’s legal system, the key characters to watch during the trial, and how the case may unfold:

1. How common are cases alleging sexual assault in Canada?

Canadian police received 33,293 reports of alleged sexual assault in 2022, a 38 per cent increase from 2017, according to Statistics Canada. It is estimated that less than one per cent of sexual assaults experienced by women lead to an offender being convicted.

The Canadian Women’s Foundation has reported the odds of sexual assault being reported to police are about 80 per cent lower than for other violent crimes and estimated that six per cent of sexual assaults in Canada are reported to police, making it the most underreported crime measured in the general social survey on victimization.

The foundation also reported that 57 per cent of women do not report allegations because they do not want to deal with police. Other reasons for women not reporting: 43 per cent believe offenders won’t be adequately punished; 34 per cent feel shame and embarrassment; 25 per cent feel they won’t be believed; and 19 per cent feel it would bring shame and dishonour on their families.

2. How long will the trial last?

The court has reserved two months to hear the case, although some lawyers involved say they expect it may wrap up sooner than that. Lawyers representing each of the five defendants will have the opportunity to cross examine E.M., the complainant in this case.

The trial will take place on the 14th floor of London’s downtown courthouse in the building’s largest courtroom. A series of tables set up in the middle of the courtroom are equipped with video monitors for lawyers and the co-defendants and on one side of the room there is a row of prisoner boxes, each of which is separated from one another and from the rest of the courtroom by plexiglass barriers.

The boxes and barriers were installed more than a decade ago to provide better security for the infamous Bandidos trial. Following a seven-month trial in 2009, six members of the Bandidos motorcycle club were convicted of murdering eight fellow members near Shedden, Ont., in April 2006 in what was the bloodiest mass murder in Ontario’s modern history at the time.

The hockey players who are on trial will sit at tables with their respective lawyers. It’s possible that one or more of the players could be convicted even if other co-defendants are acquitted.

If convicted, the co-defendants face a maximum sentence of 10 years in prison, according to Canada’s Criminal Code. However, first-time offenders typically face much shorter sentences.

Nicolas Daigle and Massimo Siciliano, former players with the Quebec Maritime Junior Hockey League’s Victoriaville Tigres, pleaded guilty to sexual assault in November 2023. Daigle and Siciliano were sentenced to 32 and 30 months in prison, respectively.

3. Will the players testify?

Defendants are not required to decide whether to testify until after the Crown finishes presenting its case to the jury. If one defendant does testify, it does not mean others must also testify.

4. What will be the key testimony?

In addition to the testimony of E.M., the jury could also hear from her family members or work colleagues who were with her at Jack’s Bar in London, Ont., before the alleged sexual assault. It’s also possible that other members of the 2018 World Juniors team may testify as witnesses.

Evidence about any complainant’s sexual history or medical records – including their text messages and emails, and personal records such as journals and diaries – is not admissible in any criminal trial in Canada unless the court has granted an application from the defence for an exception to Section 276 of the Criminal Code. That part of the code is known as the rape-shield provision and is aimed at ensuring alleged victims are not cross-examined about their prior sexual behaviour.

Lawyers not involved in the hockey case say the trial will come down to the credibility of E.M., who has told police that she felt afraid to leave the hotel room with the players and was coerced into a number of sexual acts. The players’ lawyers will attack her credibility and argue that any sexual contact between E.M. and the players was consensual.

5. When will the public learn about the evidence presented during the past months of pre-trial hearings?

Media can report on most of the details of hearings that have taken place over the past six months once the jury begins deliberations.

Lawyers tell me that jurors will have their cell phones taken away and will stay in a London hotel during those deliberations in rooms that have had the phones and televisions removed. One lawyer told me that “during deliberations, jurors are not supposed to have contact with the outside world.”

The public will not learn about those deliberations because in Canada, jurors are not legally allowed to discuss them.

6. Can lawyers exclude jurors during jury selection?

Courts in Canada do not operate like U.S. courtroom dramas. During jury selection, the judge will ask prospective jurors questions about whether they have paid attention to media coverage of the case and if they have formed an intractable opinion about the guilt or innocence of the hockey players. Lawyers in Canada do not have peremptory challenges like you might see in a U.S. court.

Lawyers not involved in this case have told me that jurors in Ontario in recent years have tended to be either government workers or retired people, since many people cannot afford to take weeks off of work without pay and not all companies top up salaries for people who miss work to serve as jurors. Not all jurors receive compensation.

According to provincial government policy, jurors in Ontario receive $40 a day after serving 10 days and at the 50-day mark they begin receiving $100 a day.

For a defendant to be convicted, the 12 jurors will have to agree unanimously that the defendant’s guilt has been proven “beyond a reasonable doubt.”

7. Which judge will oversee the case?

Judge Maria V. Carroccia will oversee the trial. She was born and raised in Windsor, Ont., and is a first-generation Canadian and a mother of two daughters. Both of Carroccia’s parents were born in Italy and immigrated to Canada, according to a news release announcing her appointment to the bench.

Justice Carroccia graduated from the University of Windsor in 1984 with a bachelor’s degree in English language and literature, graduated from the University of Windsor’s law school in 1987, and was called to the bar in 1989. Before she became a judge in 2020, Carroccia was a sole practitioner in Windsor specializing in criminal defence law.

8. Who are the other key figures in the trial?

Crown attorney Meaghan Cunningham will present the Crown’s case against the five co-defendants. Cunningham, a native of London, is based in Ottawa and is chair of the Ontario government’s sexual violence advisory group. She has worked as a prosecutor since 2003 when she was called to the bar.

Defence lawyer David Humphrey, who was called to the bar in 1985, represents Michael McLeod. Humphrey has occasionally been retained to act as special prosecutor for the Ontario Ministry of the Attorney General.

Because McLeod is the first player listed as a defendant on the criminal indictment in the case, Humphrey is expected to have the first opportunity to cross-examine E.M. before other defence attorneys do so. Other lawyers for the players include Dan Brown (Formenton), Megan Savard (Hart), Lisa Carnelos (Dube) and Juliana Greenspan (Foote.)

9. Does the trial impact Hockey Canada’s separate legal process?

After Hockey Canada was notified in June 2018 about the alleged sexual assault, the organization hired Toronto lawyer Danielle Robitaille to investigate. Robitaille’s initial investigation, which did not require members of Canada’s 2018 World Juniors team to cooperate, closed in 2019 and re-opened in June 2022 at about the same time London police re-opened their investigation.

Hockey Canada said an independent adjudicative panel was provided with Robitaille’s final investigation report in November of 2022. The panel, whose members include Nancy Orr, the former president of the Canadian Association of Provincial Court Judges, Kirby Chown, who retired in 2008 as Ontario regional managing partner of law firm McCarthy Tetrault LLP, and former Quebec superior court justice Francois Rolland, reached a decision and provided a final report to all involved parties. Shortly thereafter, a notice of appeal was filed. That appeal process has been shelved until the criminal proceedings conclude.

While Hockey Canada initially said all players from the 2018 team would remain suspended and ineligible to play, coach, officiate, or volunteer with Hockey Canada-sanctioned programs, Cale Makar received permission to play during the 4 Nations Face-Off tournament earlier this year. There’s been no change to the eligibility of other players from the 2018 team.

10. Could the players pursue civil action against E.M. if they are acquitted?

It’s possible. A growing number of people who allege they have been falsely accused of sexual assault have successfully filed lawsuits against their accusers, Trent University assistant law professor Mandi Gray told me.

Gray, who wrote the academic paper Suing for Silence: Sexual Violence and Defamation Law in 2024, said the legal community is closely watching a defamation lawsuit filed in B.C. by former UBC professor Steven Galloway against a former student referred to as A.B. in court records who said Galloway sexually assaulted her.

Last year, the B.C. Court of Appeal upheld a lower-court judgement that said people accused of rape must have access to courts to defend their reputations. In 2015, a retired judge was hired by UBC to investigate the allegations against Galloway. The retired judge concluded that it could not be established on a balance of probabilities that he committed sexual assault. Galloway was not charged by police. The Supreme Court of Canada declined to hear the case. A trial date for Galloway’s lawsuit against A.B. has not been set.

Gray said she believes such cases will have a chilling effect on people reporting sexual assaults.

“I regularly hear from people who want to know if they report if they will be sued and unfortunately it is always a risk to be considered,” she said. “Even if they tell no one else but the police. Defamation only requires communication to one other party.”