From left to right: Dillon Dubé, Cal Foote, Alex Formenton, Carter Hart and Michael McLeod.
(Nicole Osborne/CP, Nicole Osborne/CP, Nicole Osborne/CP, Brett Gundlock/Reuters, Nicole Osborne/CP)
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The Crown has begun its opening argument against Dillon Dubé, Cal Foote, Alex Formenton, Carter Hart and Michael McLeod.All five men have pleaded not guilty.It’s possible we could also hear from some Crown witnesses today.The jury includes 14 members. The two alternates who had been selected were sent home by the judge today.There’s a publication ban on the identity of the complainant.WARNING: Court proceedings will include details of alleged sexual assault, and may affect those who have experienced sexual violence or know someone who’s been impacted by it.Updates
April 23
2 minutes ago
Here are the agreed statement of facts
Kate Dubinski
That concludes the Crown’s opening statement.
The Crown and defence have agreed on some of the facts, so they don’t have to argue about them. The agreed facts are:
Room 209 was registered to McLeod and Formenton. The date in question is June 19, 2018.Surveillance video from Jack’s bar and the Delta hotel are authentic and admitted. Five videos from Drake Batherson’s phone taken inside Jack’s bar are authentic and admitted. McLeod gave police two videos from his phone in 2019. The first was taken at 3:35 a.m. and the second at 4:26 a.m. In 2022, police got five Snapchat videos taken at Jack’s bar that night from McLeod’s phone.4 minutes ago
‘Keep an open mind,’ jury told
Kate Dubinski
E.M. left the hotel in tears, called a friend and cried in the shower, the Crown says.
McLeod texted her after police were contacted, asking her, “‘What can you do to make this go away.’”
There was also a group chat where some members of the team, including the five accused, spoke about what happened in the hotel room, that there was an investigation and to make sure they all said the same thing to investigators, according to the Crown.
Dubé and Foote asked teammates to leave out what they had each done to E.M., the Crown says.
Ultimately, it will be up to the jury to keep an open mind.
“This case is not about how you believe you would act or how you think someone would or should act in a scenario like this one,” the Crown tells the jury.
“Your task is to keep an open mind throughout this case, and not make any decisions about what did or did not happen on June 19, 2018, until you have heard all of the evidence, all of the closing submissions and Her Honour’s final instructions on the law.”
16 minutes ago
What is and isn’t consent?
Kate Dubinski
The Crown says consent has a specific legal meaning, and the jury will have to decide if consent was given for each sexual act as it happened.
E.M. did not say no and didn’t physically resist, the Crown says. But she was 20, in a hotel room, drunk, with “a group of large men” that she didn’t know who were “speaking to each other as if she were not there.”
When they started telling her to do certain things, she felt she didn’t have a choice, the Crown says. On occasions she tried to leave, but the men “coaxed her into staying,” so she found herself “going through the motions.”
“The defendants took no steps to ensure there was affirmative consent when they touched her. Instead, they just did what they wanted,” the Crown argues.
McLeod took two videos on his phone toward the end of the night in which E.M. said “it was all consensual.” The Crown argues this is not evidence of consent.
18 minutes ago
Other players in room will testify
Kate Dubinski
WARNING: Graphic sexual content
Crown says others in the room will testify about what happened in Room 209, Donkers says.
Each of the five accused had sexual contact with E.M. “without her voluntary agreement to the specific acts that took place,” Donkers says.
Specifically, without consent, the Crown says McLeod, Hart and Dubé obtained oral sex from her, Dubé slapped her on her buttocks and Formenton had vaginal sex with her in the bathroom. Also without her consent, Foote did the splits while naked over E.M.’s face, the Crown argues.
McLeod also had vaginal sex one more time with E.M. without her consent, according to the Crown. He faces the additional charge of ‘being a party to the offence’ because he “assisted and encouraged his teammates to engage sexually” with E.M., “knowing she had not consented.”
20 minutes ago
E.M. ‘felt drunk, surprised by what was happening’
Kate Dubinski
According to the Crown, E.M. says she saw McLeod on his phone, texting people. The jury will see texts that include a message that he sent to a group chat asking ‘who wants to be in a 3-way quick. 209 -mikey.’
McLeod went into the hallway and invited people into the room, the jury will hear. E.M. was on the bed, naked, under the covers. More and more men started arriving in Room 209, up to 10 men in the room at different points in the night, according to the Crown.
E.M. will testify she “felt drunk, surprised by what was happening, and was uncertain how to react.”
Throughout the night, the Crown says, she was went along with what the men wanted and what she felt they expected of her because she was “drunk, uncomfortable and she did not know what would happen if she did anything else.”
29 minutes ago
What is sexual assault?
Kate Dubinski
The evidence likely won’t match up with expectations of what we think a sexual assault does or doesn’t look like, Donkers says.
You have to leave behind your biases and preconceived notions about what you think sexual assault is, says Donkers.
Court will hear that E.M., 20 at the time, was at Jack’s bar with friends. That same night, the Canadian world junior hockey team had been to a gala and then went to Jack’s. A few of the players chatted up E.M., including McLeod. E.M. got separated from her friends and started dancing with McLeod.
The jury will see surveillance video from Jack’s that night, and they’ll see Dubé and McLeod dancing with E.M. She had about eight drinks at the bar and others were also drinking.
McLeod and E.M. left the bar and went to the Delta hotel, where McLeod and his teammates were staying. They had sex, and that’s not at issue. But soon after that, “the atmosphere in the room changed.”
30 minutes ago
‘This is a case about consent’
Kate Dubinski
After an extra-long recess (not sure why), Crown prosecutor Heather Donkers has started delivering her deliberations.
“This is a case about consent,” she tells the jury. “Equally important, this is a case about what is not consent.”
It’s not about whether E.M. said no or left the situation. It’s about whether she agreed to each and every instance of sexual touching that took place that night.
This opening statement is a roadmap of the Crown’s case.
53 minutes ago
A caution for readers
Lucas Powers
The trial proceedings will likely include graphic details of alleged sexual assault that may affect those who have experienced sexual violence or know someone who’s been impacted by it.
As a reminder, 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.
1 hour ago
Widespread interest in this trial
Karen Pauls
Media arriving at the courthouse early this morning. (Karen Pauls/CBC)The media room on the main floor of the courthouse is filling up as we are about to hear the Crown’s opening statement.
Journalists are coming down from the courtroom, where it can be hard to see and hear what’s happening.
One of my colleagues had a funny comparison of the two venues: Upstairs, it’s like church. Downstairs, it’s like a sportsbar but in a legal context.
There are also lawyers who are not involved in the case – they’re just here to listen and stay on top of what’s happening. One told me she’s getting messages from people around the world who are following it.
Given the international nature of the hockey world, and the personalities involved, it has a wide reach.
1 hour ago
Presumption of innocence
Kate Dubinski
Justice Maria Carroccia is presiding over the trial. (Alexandra Newbould/CBC)The judge reminded the jury that the accused are presumed innocent. They don’t have to testify or prove their innocence. It is the Crown that has to prove beyond a reasonable doubt that they are guilty.
The fact they were arrested and charged has no bearing on whether they are guilty or not, Carroccia told the jury.
Reasonable doubt is a doubt based on reason and common sense, on the evidence and on what the evidence does and does not show, she said.
“It’s not enough to believe that the accused are probably guilty or likely guilty. If that’s what you think, you have to find them not guilty.”
But it’s also nearly impossible to know anything with absolute certainty.
“If at the end of this trial, you are sure that [the accused] committed the offence, you should find him guilty. But if at the end you are not sure that he committed the offence, then you must find him not guilty.”
