Front Burner - Jacob Hoggard and consent in Canada

Episode Date: June 15, 2022

On June 5, after six days of deliberation, a jury found former Hedley frontman Jacob Hoggard guilty of sexually assaulting an Ottawa woman. The jury also acquitted Hoggard of sexually assaulting a fan who was 16 years old during a separate encounter, and of a sexual interference charge related to accusations he touched her when she was still 15. What happened in the jury room is a secret, but consent and the credibility of the accusers were key points in the proceedings. Today, a summary of what happened at the trial, and a conversation with lawyer Megan Stephens about the tensions that continue to exist between criminal justice and accusations of sexual assault. WARNING: This episode contains graphic allegations and details of sexual assault.

In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem, brought to you in part by National Angel Capital Organization, empowering Canada's entrepreneurs through angel investment and industry connections. This is a CBC Podcast. Hi, I'm Allie Janes, in for Jamie Poisson. So before we get started today, a warning. This episode contains extremely graphic allegations and details of violent sexual assault. This is former Headley singer Jacob Hogard, performing at the band's last show in 2018. Headley was really big back then.

In the mid-2000s, they were propelled to success by Hogard's third-place finish on Canadian Idol. Yay, forever in blue jeans, baby. Don't, don't, don't do it, honey. But before that 2018 show, allegations began to surface about Hogard sexually assaulting women and girls. The hashtag OutHeadly2k18 saw dozens of accusations, which we haven't verified. Some women also gave brutal accounts to my colleague Judy Trinh. brutal accounts to my colleague Judy Trinh. And I started crying and he just kept like telling me that I was being a good girl and like petting my head. So just four months after Hogard swore the band would be back, his accusers were looking at his mugshot

as he was hit with charges related to two women's allegations. Jacob Hogard faces two counts of sexual assault causing bodily harm and one count of sexual interference. That latter charge is only laid when the victim is under the age of 16. Fast forward past repeated pandemic delays and nearly five weeks in court, and we now know the verdict. The jury delivered it the Sunday before last. There's a verdict in the sexual assault trial of Canadian musician Jacob Hogard. Not guilty on two charges, including the rape of a 16-year-old and guilty of sexually assaulting an Ottawa woman.

By looking at those five weeks of emotional testimony and steadfast denials, we can learn a lot about how consent works in our courts and the fundamental tensions that exist between criminal justice and accusations of sexual assault for both the accuser and accused. So today, that's exactly what we're going to do. First, I'm going to take you through the major beats of the Hogarth trial. Then, lawyer Megan Stevens is going to talk with our host, Jamie Poisson, to discuss what this latest high-profile sexual assault trial could mean for the future of women coming forward. So let's start with the basics. The identities of the two complainants here are under publication

ban. But it's agreed upon fact in this trial that the women each had a sexual encounter with Jacob Hogard in Toronto hotels in 2016. So a lot of this case turned on whether what happened was consensual and whether the jury found the accusers credible when they said they didn't consent. when they said they didn't consent. Complainant number one's allegations related to the sexual interference charge and one count of sexual assault. The jury acquitted Hogard of both those charges, so he's not guilty of anything unlawful that you're about to hear.

But you do need to hear what was alleged to understand this case. Complainant one said she was just 12 when she met Hogard in a hotel parking lot after a concert. She says she was starstruck, having traveled with her parents for years to see Hedley in concert. Hogard had even given her parents his cell number. Later, the teen secretly copied it and started messaging him. She testified that they texted and snapchatted starting when she was 15 and that their conversations eventually grew more sexual. She said they exchanged nudes and even said there was a video of Hogard masturbating. She says Hogard told her, quote, I love you. I want a future with you. I want your babies.

At the time, I thought it was love. I totally believed what he was saying. In 2016, when she was still 15 years old, Hogard arranged a limo to take her and her friends to a concert at Toronto's Air Canada Centre. She alleged that when they met backstage, Hogard picked her up with his hands on her rear end. Hogard denied touching her sexually before she was 16. After she was 16, the age of consent in Canada, Hogard sent a limo to take her to a hotel near Pearson Airport. She described Hogard as turning from a person who, quote,

makes you believe in a fairy tale, to a monster of a human with no compassion and no empathy. She testified that she tried to fight him off from kissing her, that he pushed her onto the bed when she tried to back away, and that he held her down and undressed her. She said she told him no and cried, but that over the course of hours, he repeatedly raped her vaginally and orally, and attempted to anally.

And she testified that he spit in her mouth and slapped her, attempted to anally. And she testified that he spit in her mouth and slapped her, pushed her face into pillows, called her a slut and a whore, and didn't use a condom. She said she was bruised and bleeding. She testified, I'm crying and I'm telling him, stop, that hurts. No, I don't want to do this. And he's just continuing going. He's not responding to my acknowledgements. But the defense pointed out inconsistencies between what the complainant told police and what she testified. My colleague Judy Trinh is quoting the defense here. I want to be clear that this could be a case of you saying something confidently

when you're not that confident, said defense lawyer Megan Savard. Maybe your answer should have been, I don't remember. The defense suggested she'd already expressed sexual interest in Hogard and that she created a, quote, rape story because she was embarrassed about falling for him and being used for sex. Hogard admitted to lying to her about loving her and seeing a future with her. But he testified that his encounters with both complainants were consensual, even passionate, and that he paid attention to verbal and nonverbal cues for consent.

A reminder, after six days of deliberation, the jury did find him not guilty on both charges related to this younger complainant. Complainant number two in this case was a woman from Ottawa who was in her early 20s during her encounter with Hogart. She told her story to Judy Trinh, who you heard earlier, back in 2018. All I remember was telling him like how much he was hurting me and he didn't care and And I just can still to this day picture his face and how scary he looked. The Ottawa woman testified that she first connected with Hogart on Tinder and nearly two weeks later agreed to meet him in Toronto.

He bought her train tickets. She said she was expecting sex, but not what happened at the Thompson Hotel. She testified Hogard raped her repeatedly and nearly choked her to death. He choked me to the point that I thought he might kill me. My face was turning red and I could see myself in the mirror. She testified that she said no and cried, but that he raped her vaginally, orally, and anally, called her a pig and a slut,

and didn't use a condom. She said he dragged her to the bathroom and said he'd urinate on her and asked her to urinate on him, but she refused. And she testified that she was left bruised and bleeding. The woman said she texted Hogard the next day, accusing him of raping her.

Hogard replied, saying it was consensual. He later testified that he didn't have a detailed memory of either encounter, but that spitting, light slapping, and urinating were possible because they were part of his sexual preferences. He denied choking the complainants, and he said causing pain and restricting breath were not enjoyable for him. His defense questioned why the woman didn't leave the encounter, pointing out that Hogard took multiple showers. I'm going to suggest to you that he never stopped you from leaving, said the defense. No, that's not true. You can't leave the room when you are being raped, the woman replied. There were also some legal complications related to the second complainant. On one occasion,

Hogarth's lawyer paused cross-examination to reveal a 15-minute phone call that Hogarth had secretly recorded between him and the accuser, just days after the encounter. The call was first played for the complainant without the jury present, but then once again in court, and the woman shook and wept as she heard it. This is a very traumatic event for me and I have spent six years trying to block it out. It is difficult to hear his voice and it is difficult to even look at him. New rules from 2018 say the complainant's private records should be revealed in advance at hearings where the complainant and a lawyer can be present if the material is deemed private. The judge ultimately ruled that the call wasn't a private record, and so it was admissible.

But the judge also said she was backed into a corner and accused Hogarth's lawyer of thinking she was above the law. I should note, the Supreme Court will soon decide if these rules are constitutional. I should note, the Supreme Court will soon decide if these rules are constitutional. So the defense said that the call showed that the woman spoke to Hogarth on the phone much longer than she claimed. And the complainant did admit to lying in the call about meeting vaginal stitches. Hogarth's lawyer later suggested that her emotional response to the call could be because she'd been caught lying. In another instance, the defense played two CBC interviews where the guests' identities were protected,

with the defense saying that both were the same complainant. One was from the interview that you heard before. All I remember was telling him, like, how much he was hurting me. And, um, he didn't care. The other was with a completely different woman. The wrongfully played video included details that didn't match the accuser's story. The defense suggested it was proof she lied. It brought the complainant to tears.

Ultimately, the jury agreed that the Ottawa woman's encounter with Hogard was at least partly non-consensual, and that he caused some sort of hurt or injury. They convicted him on one count of sexual assault causing bodily harm, which could carry a sentence of up to a maximum of 14 years in prison. The judge has now imposed stricter bail conditions as Hogarth awaits sentencing, saying the prospect of a lengthy jail sentence significantly increases the likelihood he will flee. of a lengthy jail sentence significantly increases the likelihood he will flee. empowering Canada's entrepreneurs through angel investment and industry connections. Hi, it's Ramit Sethi here. You may have seen my money show on Netflix.

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To listen to this podcast, just search for Money for Couples. So the jury deliberated across six days in this trial, and two times they told the court that they were deadlocked on some counts. What happened in the jury room is a secret, and we'll likely never know the reasoning for this verdict. But we can understand how the jury would have considered consent and why sexual assault cases so often put the credibility of accusers on trial. Our host, Jamie Poisson, spoke with criminal and constitutional lawyer Megan Stevens, who's been following this trial closely. She was a Crown counsel for over a decade,

and now her practice often deals with issues of sexual assault and domestic violence. Here's their conversation. Hi, Megan. Thank you very much for making the time. Hi, Jamie. Nice to be here. So the prosecution argued there were a lot of similarities between the allegations of these women, despite them having never met or never spoken before. I believe this is actually one of their arguments for trying them both together. But the jury came back with a mixed verdict. One count guilty, two not guilty. And I think that might be a little bit confusing for some people.

And so what do we know about what the jury had to deliberate on that could tell us how they may have arrived here? Well, I mean, I think as a starting point, it's really important to recognize the really high burden on a crown in a criminal trial like this. We talk about the crown having to prove guilt beyond a reasonable doubt. And in this particular case where you had two complainants who were testifying about different sexual encounters that happened with the same accused behind closed doors, and you're dealing with really he said, she said about what happened in those encounters, the jury's job is really to assess the evidence of each complainant

separately and decide whether the Crown has proven the required elements of the offense in relation to each of those complainants beyond a reasonable doubt. As you know, this really did turn on that central issue of consent and whether or not the complainants had consented to the specific sexual acts in question. And the jury was obviously working pretty hard to make sense of that. And they were even asking questions specific to that. They asked for the evidence to be replayed to them of each of those complainants, what they had already testified to. So that was played back a second time to them.

I think ultimately, even though it may seem confusing that they didn't accept the evidence of both, there was obviously something that in their mind was different about the evidence they heard from those two complainants. And one did, in their mind, reach that high standard of proof beyond a reasonable doubt, and the other didn't. Right. And of course, as you mentioned, this case revolved around consent. And I want to get into that a little bit with you now. So I know that you've described Canada's laws on consent and sexual assault as some of the most progressive in the world. And what do you mean by that? Why? Well, I think we've really seen over the last 30, 35 years in Canada, you know, Parliament amending the criminal code on several occasions, appellate courts in particular, the Supreme Court of Canada, interpreting those laws in a manner that is much more progressive than we may see in other places. And certainly than what the law was on the books, you know, 35, 40 years ago in Canada. There have been real efforts made to safeguard against the myths and stereotypes that are too often out there with respect to victims

of sexual assault through things like colloquially known as rape shield laws. So guarding against the admission of a complainant's prior sexual history, limiting access to really personal records like a therapist records, things like that. But I also think in relation to how consent is defined in the criminal code and has been interpreted over time, the absence of consent is something that really comes down to what was in the mind of the complainant. And so we're told to assess that subjectively. You don't assess that on, you know, an objective standard of what would a reasonable person in this in that position think. It is about what is in the mind of the complainant. And it's about the voluntary agreement to engage in the sexual

activity in question, which actually tells us that the act can change over time and consent can change over time too. So just agreeing to engage in sexual activity at one point doesn't give you a green light to all sexual activity that follows. And the courts have been very clear about that. We even have, it goes back to a decision from the Supreme Court of Canada in 1994, that there is no minimal word or gesture that is required to show a lack of consent. So we often hear the sort of mantra we often hear is no means no. Well, in fact, in Canada, that's not really right. It's only yes means yes. And yes can be

communicated by conduct, but there needs to be an affirmative understanding that the complainant is agreeing to that sexual act in question. Right. So I think more it's affirmative as opposed to exactly, it's an affirmative sort of positive thing, which I think is a really progressive idea. I think where we struggle with it is sometimes in the application. And we sometimes see, we'll see cases going up on appeals where even judges will still refer to what women were wearing, sort of implying that they were okay with certain conduct or the way delays in reporting used to be a really common way as well. Well, if they really weren't consenting, they would have gone to police right away. We also know the Supreme Court of Canada has said, like, there is no one response to this.

And so it's not OK to look at a delay in reporting as evidence that would undermine the truth of one of these claims. So I think our laws are really quite, really quite progressive in many ways. It's just I think that applying them can be a challenge. We saw the defense in this trial point to inconsistencies in the women's testimony, in this trial point to inconsistencies in the women's testimony, trying to essentially paint them as unreliable. The defense argued they made up their allegations out of embarrassment. And I wonder if you could talk to me a little bit about why accusers' credibility is so often targeted when consent is in question. Well, I think in some ways it really goes back to that definition of consent, what the Crown has to prove. And given that what is a key part, a key element that the Crown has

to make out is whether the complainant subjectively in their own mind was consenting to the act in question. If you're trying to cast doubt on that, you know, an accused is going to want to point to words or actions that would show why you shouldn't believe the complainant when she claims she did not consent. And so oftentimes that may involve pointing to particular aspects around that sexual activity in question, which the complainant says she's not consenting. But we also see it more broadly opening up to more widespread attacks on the credibility of someone to basically say there have been inconsistencies in what you've said before.

And so generally, you shouldn't be believed on this point. And I think it also involves the fact that you're often dealing with, these are the trials that typically get referred to as he said, she said trials, because we're dealing with activities that happen behind closed doors where there are typically only two people there. And so you don't have corroborating evidence. You don't have other witnesses. You don't have those other things that we see in other types of criminal trials that can be the focus of raising a reasonable doubt.

And because you are really dealing with two, oftentimes two competing versions of an intimate event, credibility does become a really central issue in almost all of these cases. I think some of the exceptions would be where you've got a complainant maybe who was extremely intoxicated and so lacked the capacity to consent. So you may, in a case like that, have more attention focused on how much alcohol was consumed or what was going on in terms of trying to negate the capacity or incapacity issue. But oftentimes, I do think credibility really takes center stage. Prosecutors called an expert in trauma in this trial, in the Hogarth trial, to explain how victims might react differently after trauma. And tell me a little bit about why they did that.

Well, I think we've learned a lot in recent years about how traumatic events can impact people's ability to process memories, to, well, to remember at all. Intimate details about events that may be the kinds of things that you really want to forget. I wasn't at the court when the evidence was called, but I do think it's one of the reasons why that type of expert tends to be called in these cases is just to help a jury make sense of how trauma does impact someone's ability to recall what's happened, because it's not sort of a common sense thing.

Right. And of course, I know there are tons of fears about stereotyping how a victim can react to trauma, right? Exactly. Exactly. And we certainly have seen those play out in many trials. And I think it's something, you know, that is very built into our understanding of what trauma looks like and how people should react to it. So typically you think someone who has experienced a violent rape would, you know, be shaken, be shattered, be visibly upset.

You know, the stereotype we would see on TV shows and in movies, someone's going to be breaking down on the witness stand and crying and really upset. But not everyone reacts that way too. People can be angry. They can be defiant. They can feel frustrated by the process, the very reactions that people have when testifying about these kinds of traumatic events. Also, I think in some ways play into those stereotypes. Do I believe you? Because I would think that you should be upset and not angry angry doesn't feel like a normal reaction to this We've known for a long time that the experience of accusers in court is a deterrent for victims coming forward. The whole process can be incredibly difficult. But the jury did convict when it came to the Ottawa woman here.

Her assailant may end up in prison. So I wonder, because this trial has received so much attention, there's been such bright lights put upon it. Do you think it will encourage women to come forward? Or do you think it could have a chilling effect? You know, it's really hard to say. I think the challenges of navigating the criminal justice process have been fairly well known for complainants for a while. I understand why someone will mount a vigorous defense to these charges. The stakes are really high, right? We know there's talk here about a significant penitentiary sentence, which means over two years in custody and also collateral consequences that flow from that. So I don't think this case necessarily changes that. But each time there is a high profile case like this in the news, I do think it leads people to think, would I want to go through that

process? And what does justice even really mean to me? It's hard to know for the complainant where there was a conviction, does she feel like justice was done? Maybe. And maybe she is pleased with the outcome, but I think there's probably still, this is going to remain out there as a question mark for a while longer, because we know that there's also already been talk about the defense appealing the conviction and, you know, publicly stating that this case is far from over. So that whole process, that's also, I think, a challenging thing for someone to have to wait on, certainly for the complainant and also for the accused in this case. But I also think, to me, this kind of case, like so many that I've seen go through the system and that I have been a part of, whether as a Crown or now in my work where I'm acting for complainants in a number of these cases, it does make me think about whether there are alternatives that people might want to have access to other than the criminal justice system to attain some

form of justice. And what would that be in your eyes? Well, you know, I think some people are already trying to find justice in different areas of the justice system. So we see more claims in the civil context for sexual assault than I think we used to in the past. And I think some people have, they've found a different form of justice that doesn't come with a jail sentence, but may come with financial compensation. The civil litigation process is definitely not for everyone. It's pretty expensive. There aren't that many lawyers who will do that work on a contingency basis. But I also think it's really time to start thinking about alternative proceeds like restorative processes, to think about ways of creating safe spaces for victims and those who are accused of sexual assault to come together. So someone who is accused can sit and listen to how their actions have left someone feeling harmed, have led to real harms, have had real consequences, and create a space in which it's okay for those people to accept responsibility that doesn't necessarily come with a jail sentence, but to think about active ways in which

they might, you know, take steps to apologize, acknowledge the harm that they've done. Again, I don't think that's going to be the perfect solution for everyone. And I would be wary of sort of replicating power imbalances in those kinds of processes. But I think, like I said at the beginning, we're 30 plus years on to a pretty more progressive state of law in relation to sexual assault in this country. And we still see the criminal justice processes play out in a really traumatizing way for victims and also for accused. So to me, it feels like it's time to at least start thinking about, is there a better way? And what does justice really mean for people in this context? All right. Megan, thank you. Thank you very much for this. Thank you. Thanks for taking the time to speak with me.

So before we go today, Jacob Hogard is also facing a new and separate rape allegation. In March, he was charged with sexual assault causing bodily harm, relating to a woman who was 19 during the alleged assault. The complainant told her colleague Judy Trin that six years ago in Kirkland Lake, Ontario, Hogard forced himself on her at a local hotel. Hogard's lawyer says he denies the allegations and that he will plead not guilty. His next scheduled court appearance on this charge is August 4th. That's all for today. I'm Allie Janes.

Thanks for listening to FrontBurner. For more CBC Podcasts, go to cbc.ca slash podcasts.