An appeal by Crown prosecutors of Thursday’s acquittal of five hockey players in the high-profile world juniors sexual assault case is unlikely, legal experts say, despite questions about whether consent was properly considered.
Michael McLeod, Carter Hart, Alex Formenton, Dillon Dubé and Cal Foote were found not guilty of all charges after a weeks-long court case that centred on an alleged group sexual encounter in London, Ont., in 2018, in which the players had been accused of non-consensual sex.
The Crown has 30 days to decide whether to appeal the decision to a higher court.
In her ruling, Ontario Superior Court Justice Maria Carroccia said she did not find the female complainant, known as E.M. in court documents due to standard a publication ban, “credible or reliable.” She also dismissed the Crown’s argument that E.M. had only consented out of fear.
“This case, on its facts, does not raise issues of the reformulation of the legal concept of consent,” she said in her decision.
While those statements and others made by Carroccia have been criticized, even legal experts who take issue with them say they may not be sufficient grounds for an appeal.
“I don’t agree with the way that the judge came to her decision, but the decision is really well-reasoned,” said Daphne Gilbert, a legal professor who teaches courses on sexual assault law at the University of Ottawa.
“Appeal standards aren’t just that you disagree with the result. You have to to show an error in law. And I don’t see an error in law in the decision itself.”
How the legal definition of consent factors in
Melanie Randall, a Western University law professor whose research includes women’s autonomy rights, said Canada’s “extremely progressive statutory definition of consent” in criminal law means “we’re not looking for the ‘no,’ we’re looking for the ‘yes.’”
In other words, she said, a judge or jury must take into account the female complainant’s own mindset behind her decision to consent to a sexual act, and determine if that consent is truly voluntary, which can be a subjective assessment.
The court heard during the trial that E.M., who testified she was drunk and not of clear mind, was in the washroom after she had consensual sex with McLeod on the night in question and came out to a group of men in the room allegedly invited by McLeod in a group chat.
It was then that the Crown alleged several sexual acts took place without E.M.’s consent.
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Defence lawyers suggested E.M. wasn’t as drunk as she said she was, wanted a “wild night” with the players, was “egging” them on to have sex with her and accused her of having a “clear agenda” during the court process, which was a judge-only trial.
E.M. pushed back against those claims and at points outright rejected them, saying she was coaxed into staying in the room and was disrespected and taken advantage of by the group, who she said “could see I was out of my mind.”
“E.M. was unwavering in telling the court that she did not consent, she did not want this, she did not provide her voluntary agreement,” Randall said.
“She explained in excruciating detail why it was complex for her to cope in that situation where she felt threatened and unsure of how to respond, and I think used a lot of strategies of appeasement and acquiescence.”
Although Randall agreed that the decision itself was legally sound, she believes Carroccia “went much further than she needed to” in the analysis of consent by ruling E.M.’s consent was voluntary.
“The judge basically said one of two things: either she knows better than E.M. does what her own subjective state was, or E.M. is a liar,” Randall said. “I think those are two very unfortunate and damaging consequences of this decision.”
Gilbert said a possible appeal could be launched on the allegation the judge was biased against E.M., but called that “kind of a nuclear option.”
“Usually you wouldn’t accuse a judge of bias from what they write in a judgment, because they’re actually making explicit the reasons upon which they made their decision,” she added.
“Bias arguments are more likely to come from attitudes in the courtroom or things that were said in the courtroom that then you felt contributed to a wrongful verdict.”
She suggested the judge could have done more to rein in the defence lawyers in their cross-examination of E.M., which the complainant’s lawyer Karen Bellehumeur said after the verdict Thursday was at times “insulting, unfair, mocking and disrespectful.”
“A fair trial is one where decisions are made based on the evidence and the law, not on stereotypes and assumptions, and where the trial process respects the security, equality and privacy rights of the victim, as well as the accused persons,” Crown attorney Meaghan Cunningham told reporters outside court Thursday.
Toronto lawyer Lorne Honickman told Global News the Crown will likely look “very, very closely” at the issue of consent in the judge’s ruling as it determines its next steps.
“If they believe that there may have been an error there in law, they will take this 30-day appeal period or review period to determine whether or not they want to appeal,” he said.
“Perhaps — and I underline ‘perhaps’ a hundred times — a higher court will be looking at the issues here and making further determinations.”
Scientific context missing in consent argument
In her ruling, Carroccia noted the Crown did not present any scientific evidence or testimony she could consider that would support its claims that E.M.’s had only consented under fear or duress — something scientific experts were also puzzled by.
“I think the complexity of how the complainant responded isn’t well understood,” Dr. Lori Haskell, a Toronto-based clinical psychologist who specializes in trauma and abuse and has served as an expert witness in previous trials, told Global News.
Haskell cited neuroscientific research that has shown how the brain can shut down parts of the prefrontal cortex that affect decision-making, logic and reasoning in stressful or threatening scenarios.
“They’re now in survival brain,” she said of people during situations of real or perceived threats.
“It’s easy when you’re not in that situation to assume you could (fight or run away), but I think we need to look at, what are similar situations? How do people respond?”
She continued: “I mean, how do men respond to hazing on sports teams? We know young men in universities have been quite traumatized with things done to them.”
Without that further context, experts like Gilbert and Randall said the judge’s ruling appeared to accept some of the most widely-held myths regarding sexual assault, including arguments made by the defence lawyers that E.M. had “created a lie” out of regret and embarrassment.
“Although the slogan, ‘Believe the victim,’ has become popularized as of late, it has no place in a criminal trial,” Carroccia wrote at one point in her decision.
“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 the burden on him to prove his innocence.”
London, Ont., defence lawyer Phillip Millar told Global News he felt “relief” to see that sentiment expressed in the decision.
“I was worried our judicial system has (been) going too far in terms of buying into the ‘believe all victims’ (idea) before the person has been determined to be a victim by the justice system,” he said.
“What was done is the law of consent was properly applied. You can’t redefine consent because it’s inconvenient to you, or because you want to retroactively retract it. Just because you’re not proud of what you did on a day doesn’t give you the ability to redefine what is consent.”
Randall and Gilbert noted that acquittals mean the threshold of proving something beyond a reasonable doubt was not met by the Crown, but how Canadians and those in the public realm view the details laid out during the court process may be another question.
“I don’t think an appeal is the only strategy here,” Gilbert said. “I think there’s lots of things we can respond to this judgment with that are, you know, powerful things to respond with that aren’t necessarily appealing.”
