Why Carter Hart and other acquitted players should get another chance in the NHL

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Two things are safe to say about the Hockey Canada sex assault trial: that there is a deep and angry partisan divide about the Justice Maria Carroccia’s acquittal of the five Hockey Canada players and that every opinion under the sun has been voiced loudly and repeatedly.

My own opinions on the matter are that it was dangerous for so many folks to assume the Hockey Canada Five — Mike McLeod, Carter Hart, Alex Formenton, Dillon Dube and Cal Foote — were guilty after the allegations against them first came to light in 2022, that it was always best to let the courts figure out the complex matter of guilt or innocence, and that it’s wise to put a huge amount of weight in what Justice Carroccia has to say in her ruling.

I give due respect to Carroccia in large part because of past experience. I’ve covered more than a dozen major murder trials over the years, and co-wrote with Greg Owens a book on the Giant Mine mass murder and court case of 1992-’95.  That mass murder and trial fractured the city of Yellowknife, turning it into a war zone of death threats, violence, bombings and murder.

From all those court cases I’ve formed a conviction that unless you’re in court each day and heard all the evidence, you’re in no place to fully assess the credibility of the testimony and to give proper weight to all the evidence. You can do your best to make sense of it, but if you’ve got any amount of humility, you should put far more weight in what those who heard all the evidence have to say.

This isn’t to say that judges and juries always get it right. They do not. But they are charged with a terrible and stressful duty to listen to all the evidence and to do all they can to set aside prejudices and preconceptions, and to fend off the strong but less informed opinions of those outside the courtroom, and to get it right when it comes to their verdict.

I respect that difficult work, and having read the full ruling of Justice Carroccia, I most certainly extend that respect to her. She had to know the the thunder and lightning of partisan anger and discord would descend upon her when she made her ruling. She had to know that finding the five men not guilty would be violently and passionately unpopular with many, given the intense social media mob uproar of 2022 when one side of the story — the complainant E.M.’s side — was widely reported in the media and was quickly accepted as the absolute truth by many people.

Once people make up their minds it’s almost impossible to get them to change their minds. But Carroccia did her job. She went into the trial with an open mind. She left it with a considered and well-reasoned finding.

If you want to disagree with her and hold on to your own views in the face of her ruling, you’re entitled to do so, but I’ll go with what the judge has to say.

Here are main 10 points I take from her ruling, along with her own explanations for her thinking.

1. That Carroccia found the complainant, E.M., to be both unreliable and not credible in her testimony about the events of the night in question, June. 18, 2018 in London, Ontario.

More than that, Carroccia found that E.M. had given her consent to the sex acts with the men that night. The Hockey Canada Five were always presumed innocent until found guilty under our system, but Carroccia’s finding does more than find them not guilty. It essentially exonerates them, though we will all likely agree that they acted in poor and immature fashion that night and needed to do more to treat E.M. with care.  

Carroccia: “Much has been made in this case about the concept of consent… In this case, I have found actual consent not vitiated by fear. I do not find the evidence of E.M. to be either credible or reliable…. With respect to the charges before this court, having found that I cannot rely upon the evidence of E.M. and then considering the evidence in this trial as a whole, I conclude that the Crown cannot meet its onus on any of the counts before me.”

2. That the notion “believe all women” is a political slogan, but goes against fundamental Canadian values that work to ensure that no innocent person is found guilty without a fair trial.

Carroccia: “In approaching this task, I am mindful of the words of Molloy J. in R. v. Nyznik, 2017ONSC 4392, at para. 17: “Although the slogan ‘Believe the victim’ has become popularized of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing a burden on him to prove his innocence. That is antithetical to the fundamental principles of justice enshrined in our constitution and the values underlying our free and democratic society.”

3. That key video evidence from Jack’s Bar where E.M. met Michael McLeod and other Hockey Canada players that night forcefully and completely contradicts what E.M. said about the players initiating overt sexual contact on the dance flooor, and that E.M., in fact, put her hand on McLeod’s crotch area on the dance floor.

Carroccia: “Some of the complainant’s testimony in chief was proven to be wrong once compared with the video evidence. For instance, during examination-in-chief, E.M. was asked about the interactions she was having on the dance floor at Jack’s Bar with Mr. McLeod and the other players. The complainant testified that she felt uncomfortable, and that Mr. McLeod took her hand and placed it on his ‘crotch’ as did others. In cross-examination, E.M. was shown a video as well as a still photo taken from that video, and she acknowledged that the video clearly showed that she touched Mr. McLeod’s genital area with her hand as she was dancing, and Mr. McLeod did not guide her hand nor cause her to touch him. She explained that this was not something she recalled happening. There was no other video submitted showing Mr.McLeod or anyone else taking the complainant’s hand and putting it on their ‘crotch’.”

4. That key video evidence from the bar that night forcefully and completely contradicts what E.M. claimed about getting plied with drinks from the players. In fact, E.M. bought almost all of her own drinks.

Carroccia: “The complainant agreed in cross-examination that she told the police that once she met the players that they were encouraging her to drink more and get drunker. She testified in chief that the players bought six of the drinks she consumed at Jack’s. She also testified that once she met the players, they bought all of her drinks. This evidence was not supported by the video evidence. The video from Jack’s Bar shows that E.M. purchased eight drinks for herself. There is no video of any of the players purchasing any drinks for her except a small glass of beer given to her by Mr. McLeod.”

4. That key video evidence contradicts what E.M. claimed about the players trying to separate her from her friends.

Carroccia: “E.M. testified that she felt pressure to be with Mr. McLeod throughout the night and that the players ‘separated’ her from her friends. She was shown video from Jack’s Bar that showed that throughout the night she spoke to a bouncer whom she identified as a friend from high school. She also had a long conversation with him at the end of the night, prior to leaving the bar. She then returned to the dance floor and left the bar with Mr. McLeod shortly afterwards. E.M. was shown messages in cross-examination from her friend V.H. who was looking for her at Jack’s. When V.H. sent her a message asking if she wanted her to ‘get u from the guy’, E.M. said she was “ok for now”. V.H. then sent her six more messages and made an audio call that E.M. did not respond to, although she is observed on video looking at her phone. She remained with Mr. McLeod. That evidence is inconsistent with her evidence that she was being ‘separated’ from her friends. When confronted with this in cross-examination, she denied a suggestion that she intentionally separated herself from her friends.

“She also denied that she was texting with V.H. while at the bar, something that is captured on video and she explained it by saying that counsel referred to ‘texting’ when she was using Facebook Messenger. The complainant testified that she tried to ‘sneak away’ from Mr. McLeod while at Jack’s Bar but he followed her even to the bathroom, and that ultimately, she agreed to leave with him. It was suggested that there were many opportunities to get away from Mr.McLeod at the bar if she really wanted to do that. At the end of the night, just before she left the bar with Mr. McLeod, the complainant had a conversation with the bouncer that lasted about seven minutes and she could have sought his assistance, but did not.”

5. That key video evidence and E.M’s own testimony contradicts her claim that she was completely out of it that night due to alcohol consumption.

Carroccia: “The complainant testified that when she arrived at the Delta Hotel with Mr. McLeod, she was ‘completely out of it’ and did not know where she was, but the video shows that she exited the cab without difficulty, looked at her phone, waited for Mr. McLeod while he is talking to the cab driver, entered the hotel and walked up the stairs without difficulty….

“The complainant stated repeatedly during her testimony that she was ‘drunk’ throughout the night, and in particular when she was in room 209. The Crown did not argue that the complainant was incapable of consenting to the sexual activity in question. In fact, the complainant testified that she was capable of consenting, and did consent, to the sexual activity with Michael McLeod which occurred before the sexual activity that forms the subject matter of the charges…

“On the night in question, she testified that she consumed two coolers before going out, one vodka soda, a beer and eight Jagerbomb shots at Jack’s…. When reviewing some of the video from Jack’s in examination in chief, the complainant pointed out that it appeared that she was drunk and leaning on the bar, but a close examination of that portion of the recording seems to reveal that after ordering a shot for herself, E.M. looked at the change provided to her by the bartender, and she called her back because she had been short-changed. The bartender is observed returning to the cash register, removing a bill, and providing it to E.M. who promptly puts it in her wallet. That conduct seems to be inconsistent with her assertion that she was leaning on the bar because she was drunk.

“E.M. does not appear to show any obvious signs of impairment, such as stumbling or having difficulty walking on any of the videos. E.M. was wearing high heels all night and appeared to have no difficulty standing or walking… The complainant is observed on video at Jack’s walking and dancing without difficulty. She is observed walking down the steps at Jack’s Bar following Mr. McLeod. She walked quickly down the sidewalk, almost running after him when he walked ahead of her when they left at the end of the night. Although she testified that at the bar it was taking a lot of effort to ‘stay upright,’ that is not depicted on any of the videos submitted into evidence.

“The complainant agreed that she did not consume alcohol after she left Jack’s Bar with Mr. McLeod and that as the night went on, she would be getting more sober. The surveillance video from the Delta Hotel also shows that the complainant had no difficulty in walking or standing when she entered the hotel. E.M. was able to interact and communicate with people. There is no evidence that her speech was slurred or that she displayed any signs of intoxication. The ‘consent videos’ depict how E.M. presented at certain points in time, namely 3:25 a.m. and 4:26 a.m. on June 19, 2018. In both of those videos, she does not display any signs of intoxication.

“It is difficult to reconcile the evidence of the complainant that the initial sex acts with Mr.McLeod were consensual if the court is to believe her evidence of intoxication at the bar and the effects of the alcohol upon her when she was in room 209. In my view, the complainant exaggerated her intoxication. When confronted within consistencies, or when she was unable to explain why she acted in a certain manner, the complainant defaulted to say that it was because she was drunk.”

6. That E.M. had reasons to fabricate a false narrative based on numerous factors, including making things right with her own boyfriend.

 Carroccia:  “The defence submits that the complainant had a motive to fabricate. It is submitted that the complainant created a narrative to explain to her mother who found her crying in the shower how she spent a night drinking, left her friends behind and left the bar to engage in sexual activity with a man who was not her boyfriend. Furthermore, she had to find an explanation to provide to her boyfriend that she was a ‘victim’ and not an active participant in this group sexual activity.

“The complainant testified that her mother called the police without consulting her, and her mother’s boyfriend called Hockey Canada. According to the complainant, although she told her boyfriend what happened, she did not provide him any details. She told him she was ‘too drunk to consent’.

“Furthermore, once the criminal investigation was closed in February 2019, the complainant filed a civil claim and included an additional fact, namely that what happened in room 209 caused her to experience ‘terror and fear’, something that she had not mentioned previously in the three statements that she had given to the police in 2018.

“E.M. also agreed that at the end of the night, she was upset because she felt that Mr.McLeod acted like a jerk, asked her if she had STDs and wanted her to leave.”

7. There was repeated and consistent testimony, including from Crown witnesses Tyler Steenbergen and Brett Howden, that E.M. pushed for the players to engage with sex acts with her, and  in the end Carroccia accepted this evidence as fact.

Carroccia: “The complainant testified that when she exited the bathroom naked and laid on the bedsheet that had been put on the floor, that the men in the room were telling her what to do and telling her to touch herself. E.M. denied suggestions that she was the one who was being sexually aggressive towards the men in room 209 and asking for sex. When it was put to her in cross-examination that she exited the bathroom naked and started masturbating and then was asking men to have sex with her, she said that she had no memory of saying anything, and it did not sound like the way she would usually speak. (Player) Tyler Steenbergen testified that the complainant came out of the bathroom and began masturbating and said: “can one of you guys come over and f*ck me?” (Player) Brett Howden testified that the complainant said, ‘who wants to have sex with me’. Mr.  Carter Hart testified that the complainant said: “somebody come f*ck me”. Mr. McLeod in his statement said that the complainant said: “no one is going to have sex with me, guys are pussies”. Mr. (Alex) Formenton in his statement said that E.M. said “is anyone going to bang me”, and Mr. (Dillon) Dubé in his statement said that the complainant said: “no one will bang me”. Also, Mr. Steenbergen and Mr. Howden both testified that E.M. called the men in the room “pussies” when no one would agree to have sex with her. That term was used by both Mr. Dubé and Mr. McLeod in their statements…

“Whether or not the complainant made statements indicating that she wanted to engage in sexual activity is relevant to a determination of the issue of consent. On the basis of all of the evidence, I find as a fact that the complainant did express that she wanted to engage in sexual activity with the men by saying things like ‘is someone going to f*ck me?’ and masturbating. Given the issues relating to the credibility and reliability of the complainant’s evidence I conclude that I cannot rely on it. ….As I indicated, I accept the overwhelming evidence that E.M. was acting in a sexually forward manner when she was masturbating in this room full of men and asking them to have sex with her.”

8. That there was numerous evidence of E.M.’s testimony been unreliable.

Carroccia: “As for the reliability of the evidence of E.M., she testified that she did not remember the events of that evening continuously, but just remembered moments throughout the night. She agreed in cross-examination that she has gaps in her memory that make it hard to remember the events of June 18 and 19, 2018 in a cohesive way. She acknowledged that when she first spoke to the police, she said she could only remember ‘bits and pieces’ of the sexual activity. She also agreed while testifying that she filled in the gaps in her memory or knowledge with assumptions.

“These are some examples of the ‘gaps’ in the complainant’s memory:• She did not remember touching Mr. McLeod’s groin while dancing with him at Jack’s;• She did not remember dancing with Mr. Howden and Mr. McLeod together until she was shown the video;• She did not remember texting V.H. while she was at Jack’s;• She did not remember her conversation with the bouncer at the end of the night;• She cannot recall any conversation with Mr. McLeod during the consensual sexual encounter including whether they discussed the use of a condom;• She did not remember a gap of approximately 15 minutes in time between the time (two players) Mr. Raddysh and Mr. Katchouk left room 209 and other men entered or what happened during that time;• She cannot recall if she had any conversation with the men upon whom she was performing oral sex;• She has ‘missing memories’ of what was said by her and others about the terms on which she was willing to engage in sexual activity;• She does not remember much of what she said while she was in room 209;• She did not remember either of the two videos being recorded in room 209;• She did not remember having sex with Mr. McLeod in the shower at the end of the night until it was included in the Statement of Claim filed in 2022.

“Another way that the complainant apparently filled in gaps in her memory with assumptions is the manner in which she answered questions. For instance, she would say ‘I feel that I….’ and she would speculate as opposed to remembering or knowing the answer to the question. This reflects an uncertainty of memory.

“Although E.M. had no memory of what she said while she was in room 209, when it was suggested that she was the sexual aggressor in this situation, and trying to initiate sexual activity with the men, she testified that she ‘did not recall asking for that…..I feel I wasn’t m saying anything, or I really just have no memory of saying anything’…

“According to the evidence of the complainant, the men were telling her what they wanted to see her do, and they put ‘penises in [her] face’ and she performed oral sex on three men. She could not recall what if anything the men said to her immediately before this took place. She could not identify any of the men. The complainant testified that she took on the “persona of a porn star” and that she was doing what she thought the men wanted her to do. She described being on ‘autopilot’.”

9. That E.M. had several opportunities to get dressed and to leave if she was fearful, but  she left the bathroom where her clothes were and walked naked into the room full of players to continue on with their evening. This dynamic started after she had admittedly consensual sex with McLeod.

Carroccia:  “I must assess the claim by the complainant that any participation in the sexual activity was not because she voluntarily consented to it but because she felt she had no other option due to her honestly held fear that she would be harmed if she did not comply.

“The complainant testified that she was scared and confused in room 209 and that her fear began from the moment the first two men entered the room after the sexual encounter with Mr. McLeod. At trial, she testified that the actions of the young men caused ‘terror and fear’ in her mind. E.M. did not mention experiencing any fear in the three statements she provided to the police in 2018, nor did she apparently tell anyone else. She did however describe feeling ‘upset’, ‘annoyed’ and ‘frustrated’. The complainant referred to her own lack of ‘processing’ what had happened on several occasions to explain inconsistencies on this issue. According to her evidence, her fear resulted in her compliance, but she had not processed that.

“If I accept the evidence of the complainant that she did not know that the men would be entering room 209, and if she was honestly fearful once Mr. Katchouk and Mr. Raddysh entered the room, there is an interval of about 15 minutes after they left and before other men entered the room after arriving at the hotel. During that time, the complainant went to the bathroom, where her clothes were located and according to her evidence emerged naked…

“At this point, she chose to walk into a room full of men while naked. No one directed her to do this, nor did anyone prevent her from going back into the bathroom and putting her clothes on. No one had threatened her or applied any force to her. She made no effort to leave the room. Up until this point there has been no sexual contact with anyone other than consensually with Mr. McLeod. The complainant provided no satisfactory answer as to why she chose to do this.

“Furthermore, in her initial statements to the police, the complainant said that she did not think that the men in room 209 would have physically stopped her from leaving the room.There is no evidence that anyone applied force or threatened to apply force to the complainant to cause her to remain in the room naked.

“Another circumstance that caused her fear, according to her evidence at trial, were the comments made about golf clubs or golf balls being inserted in her vagina. Again, in her initial statement to the police, the complainant described these comments as being made in a joking manner, not a threatening one. I do not accept E.M.’s evidence that these comments caused her to be fearful. That evidence is inconsistent with the way she described it in the first statement to police. Other than the sexual touching described byE.M. there was no other physical force applied to her by anyone in the room to cause herto remain there, and certainly no violence or threats of violence.

“The evidence of the other men who were present when the sexual activity took place describe that the complainant was smiling and seemed to willingly participate in the activities. The demeanour she displayed on the first consent video does not show that she appeared to be in fear. This is particularly significant because the complainant, by her own admission, did not know that the video was being recorded and therefore was not ‘acting’ for the camera. The inconsistencies in the evidence of the complainant regarding her fear, along with the other evidence referred to causes me to have a reasonable doubt about whether an honestly held fear was the reason for her participation in the sexual activity.”

10. That the players group chat the following day was not an effort to fabricate a story, but a group decision to simply tell the truth about what had happened with E.M.

Carroccia: “The Crown urges the court to exercise caution in approaching the evidence of any of the players who participated in the group chat on June 26, 2018. The Crown suggests that the players “concocted” a narrative in that group chat and that taints their evidence.

“I disagree with this characterization of the group chat. While the men who participated in the group chat were recounting their observations of what occurred in room 209, there is no basis upon which I can conclude that they did so for the purpose of concocting a false narrative of the events. At that point in time, they were concerned about an investigation by Hockey Canada. According to the texts sent by Mr. McLeod, there was no ongoing police investigation because the complainant told the police that she did not want to pursue it, and it was a mistake. This is consistent with the text exchange that took place between him and E.M. on June 20, 2018.

“Mr. Howden testified that in the group chats he was trying to convey exactly what happened. He was expressing anger because he felt that the complainant initiated all the sexual activity in the room.

“Mr. Hart agreed in cross-examination that they were ‘trying to get on the same page’ about what they would say to Hockey Canada. He texted late in the chat ‘Honestly boys nobody did anything wrong. …we got consent to anything that she did. She was the one begging for guys to bang her’. In his texts Mr. McLeod reminded everyone to ‘tell the truth’ and not to ‘make anything up’. Mr. Dubé told the group: “Let’s not make her sound like too crazy because if she gets wind of this and then she can get even more angry and we don’t need that so just be good about it but the truth with it”.

“In my view, the group chat reflects that the participants were expressing their honest recollections about what happened in room 209 and not concocting a false narrative. The evidence was that the participants have not had any further contact in the seven years since that chat.”

Conclusion: I don’t think the five hockey players handled themselves well that night. Who does think that? No one.

They are not heroes. But they’re not monstrous villains either. They’re young men who made a mistake in not treating E.M. with greater care. She, as well, will have to live with the consequences of her own decisions that night.

But the five accused players did nothing criminal. They’ve already paid a huge price for what turned out to be iffy allegations against them. They should not lose their NHL careers because of E.M.’s proven false narrative.