Warning: coverage of the Hockey Canada trial includes details of alleged sexual assault.

The Crown set the stage for the Hockey Canada sexual assault trial as a case that will attempt to determine what is – and what isn’t – consent in its opening statements on Wednesday.

The day involved assistant Crown attorney Heather Donkers providing an outline of the events and allegations in question on the second day of the trial in London, Ont., involving former Hockey Canada world junior players Michael McLeod, Alex Formenton, Dillon Dube, Carter Hart and Cal Foote.

Court adjourned for the day earlier than expected.

“Something happened over the lunch hour that I need to think about and discuss with the lawyers,” Justice Maria Carroccia, the presiding judge of the trial, told the jurors.

The five former NHL players were charged with one count of sexual assault tied to an incident in June 2018, where a woman alleged she was sexually assaulted in a London hotel room following a Hockey Canada gala in June 2018. The woman’s identity is protected by a publication ban, and court documents refer to her as E.M.

McLeod also faces a second charge of party to the offense.

“This count relates to the anticipated evidence that throughout the night, Mr. McLeod assisted and encouraged his teammates to engage sexually with (E.M.), knowing she had not consented,” Donkers said.

Crown Presents Opening Statements

On Tuesday in Ontario Superior Court, all five defendants – McLeod, Formenton, Dube, Hart and Foote – each pleaded not guilty to the charges. The Crown had also revealed a list of potential witnesses, and a jury consisting of 14 people, along with two alternate jurors, was also selected.  

On Day 2, Donkers outlined the alleged events on June 18, 2018, and what happened afterward.

“This is a case about consent,” Donkers said. “And equally as important, this is a case about what is not consent.”

Donkers said E.M. interacted with McLeod and other members of the 2018 Canadian world junior team at Jack’s Bar in London on June 18, following a gala to celebrate Canada’s gold-medal winning teams in IIHF events. She and McLeod left the bar together and went to his hotel room at the London Delta Armouries and engaged in consensual sexual activities before the alleged sexual assault occurred involving McLeod and the other four defendants, Donkers added.

“This first act of sexual intercourse is not the subject of this trial,” Donkers said. “Soon after that sexual act ended, the atmosphere in the room changed. (E.M.) will testify that she observed Mr. McLeod on his phone and believed he was messaging people, but she did not know who or what he was messaging. 

“You will see copies of those text messages, which include messages Mr. McLeod sent to his teammates in a group chat asking, ‘Who wants to be in a three-way quick? 209, Mikey.’ You will also hear that Mr. McLeod went into the hallway and invited people into his room, where (E.M.) still lay, naked, under the covers of the bed.”

Donkers said the jury will hear that a number of sexual acts took place involving E.M. and the men in the room, and that the five men accused in the case allegedly had sexual contact with E.M.

Donkers told the jury the Crown does anticipate the complainant will not say she said “no” to “the specific sexual acts that constitute a sexual assault,” or that she was physically resisting at those times.

However, Donkers said E.M. will testify that “at age 20, intoxicated, and a group of large men that she did not know were speaking to each other as if she were not there, and then they started telling her to do certain things, she did not feel that she had a choice in the matter.”

Donkers said the Crown anticipates that E.M. will say she felt drunk, surprised and uncertain how to react.

“On occasion, she tried to leave the room, but the men coaxed her into staying,” Donkers said. “And so, she found herself going through the motions, just trying to get through the night by doing and saying what she believed they wanted. We further anticipate you will hear evidence from (E.M.) – and from others as well – that the defendants took no steps to ensure there was affirmative consent when they touched her.”

Donkers also referred to alleged videos the men took of E.M. Donkers said E.M. made broad statements, such as, “It was all consensual.” Donkers told the jury that when they view the videos, “pay close attention not only to what was said in these videos, but also what was not said.”

Donkers went on to explain some alleged phone and text conversations following the incident, as well as conversations between McLeod and E.M. 

“All we ask is that you do justice in this case by listening carefully to all the evidence and applying it to the law as outlined by Justice Carroccia,” Donkers said. “We know that you will.”

Judge Stresses The Importance Of Impartiality

The day began with the presiding judge, Carroccia, addressing the jury, emphasizing the immense importance of their role within the trial process. 

“I am the judge of the law, and you are the judges of the facts,” Carroccia said. “You and you alone will decide what the facts are based solely on the evidence and on my instructions. You’ll be the sole judges of the credibility of the evidence.”

Carroccia also warned the jurors against sharing what happens in court outside the confines of the trial, and how crucial it is that they are impartial to the case no matter what. 

“Impartiality is probably the most important principle governing the judicial system,” said Carroccia. “Do not let anyone talk to you about this case outside of this courtroom. If they try to, tell that person emphatically that you are not at liberty to talk about that.”

This case has been covered extensively not only since the five NHL and former prominent junior players were initially asked to surrender to London, Ont., police in January 2024, but before that as well, when Hockey Canada reached an out-of-court settlement with the complainant for an undisclosed amount in 2022.