What the jury didn’t hear in the Hockey Canada sexual assault trial

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LONDON, Ont. – After a jury was discharged in the the Hockey Canada sexual assault trial on Friday, a publication ban on previously unreported details from the trial was lifted.

The highly publicized trial of five former members of the 2018  Canadian World Junior team has been marred by a series of unexpected incidents — including an attempt by a member of the public to locate the Crown’s central witness, concerns that smart glasses were being used to illegally record the proceedings, and aggressive interactions with the media.

The trial will now proceed by judge alone, meaning that Justice Maria Carroccia will hear the remaining testimony and evidence and will issue verdicts on each of the charges.  Friday’s decision comes after a juror sent a note to Carroccia on Thursday that accused two of the defense lawyers of inappropriate behavior.

Michael McLeod, Carter Hart, Alex Formenton, Dillon Dubé and Cal Foote are all charged with sexual assault after an alleged incident in June 2018 in which a 20-year-old woman said she was sexually assaulted over a span of hours by the players in a London, Ont., hotel room. The players were in town for a Hockey Canada gala celebrating their 2018 championship run.

Here’s what the jury didn’t hear:

A previous mistrial

Friday’s decision was the second time a jury has been discharged in the case. Both dismissals came following complaints from jurors that defense counsel acted inappropriately.

The most recent jury dismissal was prompted by a development on Thursday, when a juror sent a note to Carroccia that read:

“Multiple jury members feel we are being judged and made fun of by lawyers (Daniel) Brown and Hilary Dudding. Every day when we enter the courtroom they observe us, whisper to each other and turn to each other and laugh as if they are discussing our appearance. This is unprofessional and unacceptable.”

Brown, who along with Dudding, is representing Formenton, denied the jurors’ allegations.

In an emailed statement to the media on Friday morning, Brown suggested that there had been an “unfortunate misinterpretation” by a juror.

“No defence counsel would risk alienating a juror, and nothing could be further from the truth in this instance,” Brown wrote. “While it is true that co-counsel will speak with one another from time to time during a trial, this is commonplace. The very idea of counsel making light of a juror is illogical and runs directly counter to our purpose and function.”

The defense teams for the five accused players all agreed that the jury would not be able to remain impartial following the allegations.

In arguing for the trial to continue with a judge alone, Brown and other defense attorneys also referenced a “chilling effect” that the allegations would have on the defense teams.

Brown said that his ability to make submissions before the court, or even look at the jurors, would be impacted by the situation, impeding his and his counterparts’ abilities to represent their clients.

Brown also told the judge that he believed the protestors outside the courtroom and social media commentary may have influenced the jury pool.

Crown attorney Meaghan Cunningham argued that an inquiry into the juror complaint would be a sufficient way forward.

On Friday, Carroccia declined an inquiry and discharged the jury, citing concerns about the ability of the accused to receive a fair trial.

“In this situation I am confronted with jurors who have expressed negative feelings about counsel for Mr. Formenton,” Carroccia said in her ruling. “More importantly, the perception of at least some of the jurors … is that counsel are being unprofessional towards the jury.

“My concern is that there is a possibility that several members of the jury harbor negative feelings about the counsel that could potentially impact upon their ability to fairly decide this case.”

The jurors were not informed in court that weeks earlier, a mistrial was declared just three days after the initial jury (consisting of 11 women and three men) was empaneled, following an allegation of juror interference.

On April 23, Carrroccia advised the court that something happened during the lunch break that required attention and further inquiry. The justice said a juror reported that a member of the court spoke to her at a local dining market during the lunch break.

Brown told the judge that his understanding of the situation was that there was an accidental and innocuous interaction during which his co-counsel, Dudding, and the juror were next to each other in line for lunch and his colleague acknowledged the awkwardness in a benign way.

That juror, who was later called in front of the judge and attorneys, described the interaction differently, stating that Dudding spoke to her in line and said there was “a lot of head nodding” that morning, when the jury heard the Crown’s opening statement.

Another juror also provided testimony about the situation outside the absence of the jury, stating that, based on her discussion with the juror who relayed the interaction, she found it inappropriate and reported the alleged incident to a Court Services Officer. That CSO also provided testimony to the court about her understanding of the interaction.

Defense attorneys argued that the interaction could potentially taint the jurors and prevent their clients from receiving a fair trial. They also pointed out that the early state of the trial allowed the court to easily empanel a new jury and proceed anew before the bulk of witness testimony was heard.

Carroccia declared a mistrial on April 25 and a new jury was empaneled the same day.

Though Dudding was not directly questioned about the interaction, she was defended by other members of the defense, including Brown and Megan Savard (attorney for Carter Hart). She addressed the court the following day, calling the juror’s claim “acutely painful.”

Protestors vex the defense

Throughout the trial, dozens of protesters have gathered on the courthouse steps, holding signs and chanting.

Signs reading “I Believe You E.M.” and “We Believe Survivors” have been common, among many other phrases. The protestors chanted at the accused and their counsel as they arrived at the courthouse each morning.

Defense attorneys have complained that the protestors were intimidating the players. On one occasion, a protester made it into the courthouse lobby with a sign.

On May 5, David Humphrey — attorney for McLeod — addressed the issue with the judge, taking issue with the chants: “What do we want? Justice. When do we want it? Now.”

“Free speech is a wonderful thing. It’s an effective form of advocacy,” Humphrey said.

“But of course our concern is they’re all advocating for results adverse to the defendants before you. And they’re very forcefully and loudly advocating for a result. And jurors are essentially forced to walk that same gauntlet and be exposed to that same forceful advocacy.”

In response, Carroccia made arrangements for the jury to enter the courthouse through a separate, private entrance. She also warned that any protestors that interfered with jurors could be arrested.

Outside the public entrance to the courthouse, the protestors persisted. On May 14, the issue was again addressed in court, without the jury present.

Savard noted that the protest always ends the moment the last accused player enters the courthouse.

“I think it’s very important that that be said, because that is what this is about,” Savard said. “It’s name calling, bullying, attacking. The minute the last accused person enters the building then they disperse. So I just want to identify the targeted nature of it.”

Reprimands during the proceedings

Members of the public have been able to attend the proceedings, subject to the protocols and publication bans ordered by the court. Multiple attendees have been reprimanded and disciplined for their conduct during the course of the trial.

One frequent attendee, Christopher Fowler, was told he was being placed under arrest by London Police officers on April 30 for violating a court order, though the charge was later dismissed.

Fowler was approached by LPS officers in the foyer of the London courthouse and questioned for approximately 15 minutes about his eyeglasses.

The day prior in court, a member of the public made a complaint to a court officer involving concerns that Fowler was potentially recording proceedings with his glasses. Carroccia asked the man about his glasses, which he said were Ray-Ban Meta glasses; that model of glasses can record video.

When asked by the judge if he was recording on those glasses, Fowler initially affirmed that he was, but then later backtracked.

When Fowler arrived in court the next day with his golden retriever service dog, he was questioned by multiple officers, who also searched his belongings and placed items in evidence bags. Fowler’s partner, Terri-Lynn Fowler, was also asked questions by an officer, at which point Brown, defense attorney for Formenton, approached the couple. Brown advised Fowler against making a statement to police. (The room where defense teams gather is located off the foyer.)

Fowler, who has approached members of the public, the defendants, and members of the media throughout the trial and introduced himself as the co-founder and director of False Allegations Canada, an organization dedicated “to aiding individuals facing the complexities of false accusations, providing a lifeline for those in need,” was later allowed back into court, with the condition that he not record with his glasses.

Fowler, when approached during a brief court recess on Friday, declined to comment on the matter.

Also on April 30, as people filtered out into a narrow lobby outside of courtroom 21 on floor 14 for the morning recess, a large, brown-haired man in a grey hooded sweatshirt directed a snide comment at a reporter, casting blame on the reporter for the proceedings.

When asked to clarify what he meant, the man began shouting and pointing at the journalist.

“This is all your fault!” he charged, as he pressed into a packed elevator. “You ruined these boys’ lives!”

Later in the day, defense counsel Brown brought the outburst up in court, asking for a zero-tolerance policy for such outbursts.

The man who accosted the reporter was asked to leave the courthouse and not return for the remainder of the day. He returned on multiple occasions, at times standing against the pillars of the courthouse entryway. On one occasion, he approached Carter Hart and wished him well, patting him on the back and hugging his mother. The same man, after accosting the reporter again outside the courthouse, was later banned from the premises.

On May 5, a man attempted to reach E.M., who was testifying by CCTV from a separate floor in the courthouse. The man was intercepted by police before reaching her. The man — who appeared to be in his late 20s and wore a grey sweatshirt and green hat — was escorted down to the lobby, where he was questioned by officers.

“So you thought you’d just come and talk to her?” an officer asked him, before he was moved to an isolated area of the lobby to be questioned.

The next day, Carroccia told the courtroom that she had learned that a lawyer who was observing the trial remotely, was discussing the case on a radio station and had mentioned which floor and room E.M. was testifying from. Carroccia issued a warning to approved observers of the trial, that those authorizations could be revoked.

“We are trying to conduct a trial,” Carroccia said. “Why people feel the need to insert themselves into our trial, I do not know.”

“Thanks for that, your honor,” Humphrey said. “It wouldn’t be a day without a speed bump.”

“Exactly,”  Carroccia said. “It’s always something.”

(Photo of Alex Formenton, center, arriving at the courthouse in London, Ont., with his attorneys Hilary Dudding and Daniel Brown earlier in the trial: Katie Strang / The Athletic)

This news was originally published on this post .

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