New sexual assault trial for 5 former world junior hockey players begins in London, Ont.

Donkers continues her opening statement:

“You are going to hear from several witnesses about the events of June 18 and the early- morning hours of June 19, 2018. On June 18th, E.M. attended Jack's Bar in London with some friends. She was 20 years old at the time.

“That same night, the Canadian world juniors hockey team had attended a gala in London and some members then decided to continue their night at Jack's bar. While at the bar, a couple of the men from the world juniors team, including Michael McLeod, one of the defendants in this case, approached E.M. and began chatting with her. E.M. ended up separated from her friends and dancing with Mr. McLeod in a crowd of people.

“The first Crown witness in this trial will be Det. Tiffany Waque of the London Police Service, who will show you some of the surveillance video from the dance floor at Jack’s that night. We expect you will observe that Michael McLeod and Dillon Dubé were among the hockey players who surrounded E.M. at various points while on the dance floor.

“We anticipate you will hear evidence that E.M. consumed approximately eight drinks while at Jack’s bar. Many of the other people at the bar were consuming alcohol as well. Shortly after 1:20 a.m., E.M. and Mr. McLeod left the bar together and headed towards the Delta Hotel, where Mr. McLeod and his teammates were staying.

“We expect you will hear evidence from E.M. that once she and Mr. McLeod were alone in Mr. McLeod's hotel room — Room 209 — they engaged in sexual intercourse. This first act of sexual intercourse is not the subject of this trial.”

The assistant Crown attorney, Heather Donkers, has begun her opening statement. (The complainant is referred to as E.M. to protect her identity).

“This is a case about consent, and equally as important, this is a case about what is not consent,” Donkers says. “This case is not about whether E.M. said no, or removed herself from an unwelcome situation when she had the opportunity.

“This case is about whether she voluntarily agreed to engage in each and every instance of sexual touching that took place, at the time that they happened. At the end of this trial, we will ask you to find each of the five defendants guilty of sexual assault because they touched E.M. sexually without her voluntary agreement to each act when it took place.

“Her Honour told you that you must leave behind any pre-conceived ideas, biases or judgments that you may have about what constitutes a sexual assault,” says Donkers. “It is important you keep this instruction in mind, as the evidence we anticipate you will hear in this case may not match up with expectations you have about what a sexual assault is or looks like.”

The Crown has the burden of proof, the judge tells the jury. They must prove guilty beyond a reasonable doubt. The defence doesn’t have to prove anything.

The fact that the men were arrested and charged is in no way indicative of guilt, Carroccia says.

“A reasonable doubt is not a far-fetched doubt. It’s a doubt based on reason and common sense, and is based on what the evidence tells you or doesn’t tell you,” she says. It’s not enough to think they’re probably guilty or likely guilty.

That said, Carroccia says, it’s nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. “If at the end of the case, after assessing the evidence, you think that each of the men committed the offence he is charged with, you should find him guilty.

“But if at the end, you are not sure he committed the offence, you must find him not guilty.”

Carroccia tells the jury they should consider the demeanour of each witness and all of the evidence, and decide how much, or how little, to rely on each witness. There’s no magic formula for figuring out if someone is telling the truth or not telling the truth.

Carroccia suggests asking some of the following questions:

• Does the witness seem honest?
• Is there a reason to not tell the truth or be unreliable?
• Does the witness have a vested interest in the outcome of the case?
• What was the condition of the witness?
• Does the witness seem to have a good memory?
• Do any problems with memory seem reasonable or made up?
• Does the witness seem to be reporting what he or she saw or heard or putting together an account put together from other sources?
• Does it seem reasonable and consistent?
• Is it similar to or different from what other witnesses say about the same events?
• Do inconsistencies make the evidence more or less believable or reliable?
• Is it a deliberate lie or does it make sense?

Carroccia also says not to jump to conclusions about how someone testifies, because giving testimony is to a common occurrence and can lead to people having different demeanours.

Carroccia is telling the jury (and you) what the proceedings will be like.

First, there will be the opening statement by the Crown. Then, the Crown will call the first witness. For every witness that’s called, the defence lawyers (all five of the legal teams) have a chance to cross-examine. Then, the Crown can re-examine the witness to clarify anything that came up in cross-examination.

The defence lawyers can then call witnesses, but won’t have to. If they do, the process will be reversed.

After that, there’s closing arguments. The judge will give jurors instructions about the laws that apply and how to apply it, and then the jury will be asked to retire to render a verdict.

During the trial, it may be tempting to jump to conclusions, the judge tells the jury. “You must resist that temptation.”

Stereotypes have no place in our legal system, and keeping an open mind takes discipline, Carroccia says.

“You will have to make a conscious effort to resist and help others resist jumping to conclusions based on conscious or conscious biases based on gender, age, race or any other factor.”

The jury has to “calmly and dispassionately” consider all of the evidence and to not make any assumptions about who might be the victim of sexual assault, who might be accused of sexual assault or how a victim of sexual assault may act.

Don’t jump to conclusions, Carroccia says, either about sexual assault or consensual encounters. There’s no one way that people act after either. The jurors have to look at the evidence to make their decision, not stereotypes and biases, the judge adds.

Carroccia is addressing the jury. She tells them they will determine whether the Crown has proven its case beyond a reasonable doubt.

Carroccia tells the jurors not to communicate with people about this case. They might run into people in the elevator, or in the lobby or at lunch. They are not to speak to anyone.

Even when they go home, jurors are not allowed to speak to family members about the case. They’re also not supposed to speak to each other about possible verdicts before the end of the trial. They need the complete picture before they can start thinking about a verdict, the judge says.

We’re about to get going with the judge’s instructions and the opening statements by the lawyers.

As always, elevators are a challenge in the London courthouse, so we’re a little bit late getting started, but nothing significant. Justice Maria Carroccia tells the jury the elevators are notoriously unreliable so things might sometimes be delayed.

Carroccia also acknowledges the courtroom is really hot and court staff are trying to fix that.

The two alternates have been released (because none of the nine women, five men who were chosen for the jury have indicated they can’t serve).

I’m Karen Pauls, a senior reporter for CBC. I’ve been working on this story for years, including covering the 2023 IIHF world junior championships in Halifax.

One important piece of context is how some folks believe hockey culture is on trial here. There have been questions about how we treat talented young players and if coaches from early on are responsible for creating an “entitled” atmosphere, where goal scorers can get away with bad behaviour off the ice if they keep winning on the ice.

Kristi Allain teaches sociology and is the Canada Research Chair in Physical Culture and Social Life at St. Thomas University in Fredericton.

“In this case, we have put the sport on trial and I think that's actually really important because we have enough evidence now to suggest that maybe there's something not right about the ways that these institutions are preparing young men,” she says, adding many hockey players coach when their own careers have ended.

Canadians have a narrative about what it means to be a hockey player — images of polite, well-dressed young men walking into the arena and inspiring the nation when they win the big games.

“Hearing allegations of sexual assault against some of the best hockey players in the world in their age group really challenges that, not just for Canadians, but I think for people outside of Canada as well who have real questions about what this means,” Allain says.

Good morning. Kate Dubinski here. I’m based in London and I’m another of the reporters covering this trial. I’ll be doing live updates as quickly as possible.

It’s a beautiful spring day in London. The sun is shining and it’s T-shirt weather. Spring also means a lot of wildlife.

There are three large planters in front of the Superior Court (sometimes I use them to balance my laptop if I’m recording a radio piece and need to read a script). But one of the planters is now off limits because a duck is sitting on a nest.

The reporters have been giving the mama duck wide berth and letting her be.

We’ll see if we see some ducklings by the end of the trial.

A mother and father goose have also been spotted with their goslings in the courtroom vicinity.