Restriction on Publication
By court order made under subsection 486.4(1) of the Criminal Code, RSC 1985, c C-46, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
Table of Contents
A. Introduction
B. The Evidence
i) The events at Jack’s Bar
ii) The events at the Delta Hotel
iii) E.M.’s version of the events in room 209
iv) The consent videos
v) The text exchange between E.M. and Michael McLeod
vi) The statements of the complainant
vii) The evidence of Taylor Raddysh and Boris Katchouk
viii) The group chat on June 26, 2018
ix) The evidence of other people in the room
x) The evidence of the accused
xi) The police evidence
C. The Positions of the Parties
i) The position of the Crown
ii) The position of Michael McLeod
iii) The position of Carter Hart
iv) The position of Alexander Formenton
v) The position of Dillon Dubé
vi) The position of Callan Foote
D. The Applicable Legal Principles
i) The presumption of innocence and onus of proof
ii) Essential elements of the offence of sexual assault
iii) Assessing the credibility and reliability of the witnesses
iv) The use of myths and stereotypes in assessing the evidence of a complainant on a charge of sexual assault
v) The use to be made of the statements of the accused
vi) Sexual attitude evidence
E. Analysis
i) Assessing the evidence of E.M.
ii) Findings that relate to the charges against each of the accused
iii) The allegation relating to Carter Hart
iv) Was the complainant’s consent vitiated by fear?
v) The allegation relating to Alexander Formenton
vi) The allegation relating to Callan Foote
vii) The allegation relating to Dillon Dubé
viii) The allegations relating to Michael McLeod
F. Count #2 – Party to the Offence
G. Conclusion
A. Introduction
[1] On June 18, 2018, members of the 2018 Championship Canadian World Junior Hockey Team (“the team”) were gathered in London, Ontario to celebrate their victory in the World Junior Hockey Tournament earlier that year. What occurred during the early morning hours of June 19, 2018, between the accused and the complainant, E.M., forms the subject matter of the charges of sexual assault before the court.
[2] The team was staying together at the Delta Armouries Hotel (“the Delta Hotel” or “the hotel”) located at 325 Dundas Street in London, Ontario. The formal events began on June 18, 2018, with a “ring ceremony” where each member of the team received their championship ring, which was followed by a Gala Dinner and a golf tournament scheduled for the following day.
[3] Following the ring ceremony at the Delta Hotel, the team photograph filed as Exhibit #17 was taken. Later in the evening a Gala Dinner was held where alcohol was served both before and during the dinner.
[4] After dinner, members of the team including Michael McLeod, Carter Hart, Alexander Formenton, Dillon Dubé and Callan Foote returned to the Delta Hotel, changed from their suits into casual clothes and attended at Jack’s Bar on Richmond Row in downtown London. The team arrived at the bar between 11:20 and 11:40 p.m. It was at Jack’s Bar that the complainant, E.M., met the accused and other members of the Canadian World Junior Hockey Team. E.M. eventually left Jack’s Bar with Michael McLeod and returned to his room, room 209 at the Delta Hotel, where they engaged in consensual sexual activity.
[5] E.M. alleges that after the consensual sexual activity concluded she was sexually assaulted by each of the accused. The complainant testified that she did not consent to the sexual activity that took place and she felt that she did not have a choice about whether to engage in the group sexual activity due to intoxication or fear or a combination of both. The defence maintains that E.M. was an active and willing participant in the sexual activity that occurred with each of the accused in room 209, and in fact initiated much of it.
[6] The events that took place in room 209 at the Delta Hotel in the early morning hours of June 19, 2018, were the subject matter of a London Police investigation and an investigation by Hockey Canada, the governing body of the World Junior Hockey Team. Initially those investigations resulted in no criminal charges being laid. Those events were also the subject matter of a civil claim filed by the complainant in the Superior Court of Justice in April 2022 that was settled by Hockey Canada in May 2022, for an undisclosed sum of money without the knowledge or the involvement of the accused in this case.
[7] Once the settlement of the civil claim filed by E.M. was made public, and garnered national attention, the London Police Service re-opened their investigation, and there was a renewed investigation by Hockey Canada. There was also a meeting of the Standing Committee on Canadian Heritage ordered by the House of Commons to study Hockey Canada’s involvement in alleged sexual assaults which included these specific events. Ultimately, the criminal charges that are contained on this indictment were laid.
[8] The lengthy and contorted history of this case, including the multiple investigations by different agencies, including the civil action and settlement, has led to multiple, often conflicting statements from the complainant, the defendants, and witnesses. With five accused and that barrage of evidence, I can say that counsel conducted the trial efficiently, and that the time spent, particularly in the cross-examination of E.M., was entirely appropriate.
[9] Much has been made in this case about the concept of consent. This case on its facts does not raise issues of the reformulation of the legal 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. In my lengthy reasons set out below, I will explain why I reach those conclusions.
[10] As I must, I have applied the legal analysis directed by R. v. W.(D.), [1991] 1 SCR 742. No rigid application of the three-step analysis is necessary. 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.
B. The Evidence
i) The events at Jack’s Bar
[11] E.M. did not know any of the accused before June 18, 2018. That day she worked at a retail store in London, and made plans with some of her work colleagues to go out after work to Jack’s Bar to socialize, drink alcohol and dance. After work she went home and changed her clothes and got ready to go out. She testified that she consumed two cans of Mike’s Hard Lemonade while she got ready which made her feel more relaxed. She called an Uber and picked up a co-worker V.H. [name redacted] and went to Jack’s arriving there between 11:00 and 11:20 p.m.
[12] Jack’s Bar is equipped with a video surveillance system with cameras that record most, though not all of the events that occur both inside and outside of the bar. Both the Crown and defence introduced into evidence various video recordings from Jack’s from June 18 and 19, 2018. Those videos are recorded in 20-minute segments from different locations in the bar. The actual time is not shown on the recording, just the time period, for example from 11:00 p.m. to 11:20 p.m.
[13] As soon as she arrived at Jack’s, E.M. is observed on video going to the ATM machine and then she and V.H. went to the bar and ordered shots. E.M. consumed two Jagerbomb shots which contain Jägermeister liquor and Red Bull and then she and V.H. went to the dance floor where their co-workers were. After dancing for a brief time, she and V.H. attended at the bar again where E.M. consumed another shot, this time a shot of Tequila or Vodka, she could not recall which.
[14] E.M. testified that initially she was not feeling really comfortable, she was a little nervous and the alcohol helped calm her nerves and helped her enjoy dancing a bit more.
[15] The accused, together with other members of the team, are observed on video arriving at Jack’s Bar between 11:20 and 11:40 p.m. They were required to show identification to enter the bar and Mr. Formenton, who was not 19 years old, was not permitted to enter. Mr. McLeod, Mr. Hart, Mr. Dubé and Mr. Foote entered Jack’s Bar.
[16] According to E.M., she was approached while on the dance floor by a man and they started dancing a bit, and then he brought her over and introduced her to another man. There is no dispute that the first man that E.M. was dancing with was Brett Howden, who was also a member of the Canadian World Junior Hockey Team and the man to whom she was introduced was Michael McLeod.
[17] After meeting Mr. McLeod, he and E.M. had a shot together at the bar. According to the complainant, she was already “drunk a little bit” at that point in time and does not recall any conversation with Mr. McLeod although she recalls that she spent a lot of time with him at the bar. [1]
[18] She learned during the evening that this group of men played hockey together, although she did not know at what level.
[19] According to E.M. in addition to the two Mike’s Hard Lemonades she consumed earlier in the evening, while she was at Jack’s Bar, she consumed a Vodka Soda, one beer and eight Jagerbomb shots (according to her evidence, this includes the shot of vodka or tequila). She testified in chief that other than the first few shots she purchased when she was with her friend, the rest of the drinks were bought for her by either Mr. McLeod or the rest of the group of his friends. She also described an older gentleman who was with “the group” who poured a shot into her mouth during the evening.
[20] In cross-examination by Mr. Brown, the complainant acknowledged that this was inaccurate when she was shown video footage of attending at the ATM machine to withdraw money, then purchasing her own drinks.
[21] Furthermore, during her cross-examination E.M. was shown a glass from Jack’s used to make Jagerbomb shots. Mr. Brown demonstrated and the complainant agreed, that the glass holds half an ounce of alcohol and not a full ounce. [2] It was suggested that the complainant consumed less alcohol than she thought, that is four ounces of alcohol in the eight Jagerbomb shots, rather than eight ounces based on the size of the glass. She agreed.
[22] According to the complainant, at that point in her life, she was attending university and would go out to bars usually once every weekend, but normally four coolers would be enough to make her feel drunk. Consuming this much alcohol was “excessive” for her.
[23] In cross-examination, E.M. agreed that “a normal” amount that she would drink on a night out at Jack’s would be six to eight drinks. She agreed that according to the video, after meeting Mr. McLeod, she purchased a shot for him.
[24] Once shown the video evidence, the complainant conceded that she purchased the Jagerbomb shots for herself, most of them before ever meeting any of the players. She also acknowledged that she did not tell the police that she actually purchased a shot for Mr. McLeod. E.M. testified that “she forgot” about that because she was “really drunk”.
[25] The complainant was shown a plastic glass from Jack’s which she agreed was like the glass from which she consumed a beer that night. The bottom of the glass is marked “7 oz” and she agreed that it was significantly smaller than regular beer glasses.
[26] E.M. described that she was feeling the effects of the alcohol as the night went on and her inhibitions were lowered as she consumed more alcohol. According to her evidence in chief, she was less aware of her surroundings and felt her vision was a little blurry, and she was not feeling very aware.
[27] E.M. testified in chief that she remembered dancing with the group of men at the bar, but she felt uncomfortable because they were taking turns dancing with her, and she felt “sandwiched in”. They were passing her back and forth and they circled around her. She testified that there was a lot of physical contact and “grinding” bodies against each other. She thought it was kind of odd that Mr. McLeod was okay with the way the others were pulling her away to dance. She also described that some of the men moved her hand to touch their “crotch area”. [3] The complainant testified that when this occurred it felt a little off, but because she was drunk, she went along with it. She was trying to dance and have fun.
[28] E.M. testified that over the course of the evening, she was attracted to Mr. McLeod, and he seemed interested in her. She acknowledged kissing him. She agreed during cross-examination that she did not tell the police when she provided her first statement on June 22, 2018 that she had kissed Mr. McLeod at the bar. She explained that she was not asked about it and that she thought it was “self-explanatory” with the dancing and interactions at the bar, but she did not purposely leave that out. She also agreed that she did not mention the kissing when she provided a statement to Hockey Canada on July 20, 2022.
[29] The complainant was shown video recordings from Jack’s Bar. She did not recall dancing with Mr. McLeod and Mr. Howden together. She did not recall that Mr. Howden “hit her butt” as he walked away from the dance floor. According to her evidence, at that point in the night she was feeling off balance as if it was taking a lot of effort to move around and stay upright. She felt her judgment was “starting to be impaired at that point” like she was not really aware of what was going on. She recalled going to the bathroom and slipping or losing her balance and falling to the ground.
[30] In cross-examination, the complainant agreed that she told the police in her initial statement that she was alone when she fell leaving the bathroom, but in a statement provided to Hockey Canada on July 20, 2022, she stated that Mr. McLeod was present when she walked out of the bathroom and fell.
[31] E.M. agreed that in her first statement to the police she told them that the players “separated her” from her friends. She explained that she was not trying to imply that they kept her away from her friends when she said that. It was suggested to her that she made a choice to separate herself from her friends. She denied the suggestion.
[32] According to E.M., she felt “pressure” to be with Mr. McLeod throughout the night. She described at one point trying to go to the bathroom to “sneak away” so she could go off on her own, but he insisted on staying close to her. He walked her to the bathroom and waited for her until she came back out. She said she accepted that she would go with him to the hotel. She described herself as a person who “has a bit of a hard time saying no” to people. [4] E.M. described feeling “okay” about going to the hotel with Mr. McLeod, but she felt that if she was not “drunk” she would not have done that.
[33] In cross-examination, E.M. agreed that in her July 20, 2022 statement to Hockey Canada about these events, she was trying to convey that she felt that she could not get away from Mr. McLeod. She explained that she did not write that statement fully, and that what she said about falling outside of the bathroom in the initial statement provided to police was accurate and this was “an error”. [5]
[34] Further in cross-examination, E.M. acknowledged that if she wanted to leave Mr. McLeod, she had lots of options to do so, but it was “hard to think” with a lot of alcohol in her system and she has a hard time saying no to others.
[35] The complainant was shown video from Jack’s which showed her greeting and speaking several times to a man working as a bouncer or security for Jack’s Bar. E.M. advised that she knew this man from high school and that they had been friends in high school.
[36] E.M. agreed in cross-examination that she did not mention her interactions with the bouncer in any of her statements to the police or to the Hockey Canada investigators and only did so when she prepared a statement dated March 18, 2025, after reviewing videos from Jack’s Bar during preparation for trial.
[37] It was suggested by Mr. Brown in cross-examination, that she did not mention the bouncer because he could have attested to her state of intoxication. She replied that she “wasn’t thinking he could be helpful”. She also explained that she was embarrassed about what had happened and did not want him to know.
[38] A video was shown to the complainant taken at approximately 1:20 a.m. showing her speaking to the bouncer alone for approximately seven minutes and it was suggested that if she wanted to get away from Mr. McLeod, she could have gotten help from the bouncer. She replied by saying that she was not trying to get away from him at that point, but pointed out that she was showing “visible signs of drunkenness” by leaning on the wall, although she had no memory of interacting with the bouncer at present. [6]
[39] On the issue of her state of intoxication, during cross-examination by Ms. Greenspan, the complainant was shown the video recording at Exhibit #34 and agreed with a suggestion that she had the “wherewithal” to realize that the bartender had short-changed her when she ordered a drink.
[40] E.M. was also cross-examined about the shoes she was wearing that night which were described as stilettos with thin high heels. She agreed that she wore the shoes all night while she was at Jack’s Bar, including when she was dancing.
[41] The complainant did not recall exchanging Facebook Messenger messages with V.H. while at Jack’s Bar. They were shown to her in cross-examination and were filed as Exhibit #41a and b. When it was suggested to her earlier in her cross-examination by Mr. Brown that she was texting on her phone, she thought she was “scrolling” and did not recall texting. After being shown these messages, the complainant said: “And again you used the term texting, which means something different than a Facebook Messenger”. [7]
[42] A message sent by V.H. at midnight said, “Let me know if you want me to get u from the guy!!” E.M. responded that she was okay for now and would return soon but she agreed that she did not return to join her friends. V.H. then texted E.M. three times without reply, then tried to call her as well.
[43] The following morning at 9:04 a.m., V.H. asked E.M. if she made it home alright and E.M. replied that she did. And when V.H. texted that she was not “lit” enough the night before, E.M. agreed and said they would have to go out and get “really lit”, meaning really drunk. She explained that she did not want her “brand new” friend to know her business, so she was talking to her as normal.
[44] The video surveillance from outside of Jack’s Bar shows Mr. McLeod and E.M. leaving the bar holding hands shortly after 1:30 a.m. Once outside, Mr. McLeod walks down the street quickly towards a cab and the complainant follows behind him almost running to catch up.
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