The Current - What we learned after the hockey trial jury was dismissed

Episode Date: May 21, 2025

In an “extraordinary” development, the jury has been dismissed in the sexual assault trial of five ex-world junior hockey players. The Globe and Mail’s investigative reporter Robyn Doolittle explains what a judge-only trial could mean for the case, and why the jury’s dismissal means new details can now be reported

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current podcast. The trial of five former hockey Canada World Junior players continues today in London, Ontario now in front of a judge alone. The five men are charged with a sexual assault in 2018 of a woman known as E.M. They have all pleaded not guilty to the charges. Last Friday the judge dismissed the jury and decided to proceed with the case against the five accused players by Judge Alon. Robin Doolittle is an investigative journalist for the Globe and Mail. She's been reporting on the trial and the allegations that led to it. In a warning, this conversation we're about to have will reference details of an alleged sexual assault. Robin, good morning.

Morning. It has been a dramatic week in this trial. What do we know, let's begin here, what do we know about why the judge dismissed the jury and decided to proceed with a judge alone trial? Well, because it's judge alone now, I can tell you the answer to that. I can also tell you the reason there was a missed trial at the end of April. Basically, last week the judge told the court that they had received a note from a juror and this note essentially says that

multiple jurors feel as though two defense lawyers, Daniel Brown and Hillary Dudding, were bullying them. That they every day when they went into the courtroom, when the jury walked into the courtroom, the lawyers were day when they went into the courtroom, when the jury walked into the courtroom, the lawyers were laughing at them as if making fun of their appearance and that they thought this was unprofessional and they wanted it to stop. This is obviously an extraordinary accusation for a juror to make. There was much debate about what to do going forward. The defense, all five defense teams said, we need to have a mistrial. This jury is obviously biased against the defense. It's going to impact the players ability to have a fair hearing. But they did propose going judge alone. The Crown

said they would be very disadvantaged if they were to proceed going judge alone at this stage because they've already presented much of their evidence in the case and they've been unrolling it in a way that is designed for a jury, which is a group of regular people as opposed to a judge. I think it's worth noting that the two lawyers, Daniel Brown and Hilary Dudding, expressly deny that they ever did this.

They said this would be illogical. And the judge did tell the court that she's been watching everything very closely and hasn't seen anything like this. But that's where we're at, an extraordinary development. And as you mentioned, I mean this comes after the initial trial was a mistrial. I mean this is the second attempt in some ways at going through this process. Why was there that initial mistrial? Well, and it involved the same defense team actually as well. In that case, it was right, the trial had just started. The Crown had just finished making their opening remarks.

We break for the lunch and then we come back from the lunch. And I guess it's worth noting when before the jury headed out for lunch, because it's the first day, the judge gives them a very standard warning, you guys are not supposed to discuss this with anyone outside this room. You should not interact with anybody from the court, you should not talk to anybody, you know, don't read the news, that sort of thing, very standard.

And at the lunch break in London, and it's it's a very small area in London, there's not many places to go for food. A juror and Hilary Dudding, the lawyer, ended up in the same food line. And in the jurors telling, because she again wrote a note to the judge, that the lawyer approached her and said something to the effect of a lot of nodding going on this morning,

Hilary Dudding said that that absolutely didn't happen, that they bumped into each other. She had a reflexive reaction and said something like, oh, sorry, this is awkward, and then sort of proceeded to nod. And it's unclear again, exactly which version, but it doesn't really matter because the defense again argued that they think that the defense counsel is acting inappropriately so we need to mistrial and the judge agreed. You said something earlier that the defense, pardon me, the prosecution, the Crown is concerned

that having a judge only trial would put them at a disadvantage. What's the basis of that? She didn't elaborate reasons, but I can, having watched this trial, you know, make some educated guesses. For example, the complainant who's known as EM was on the stand for nine days. I think we think a lot about sexual assault complainants and how difficult cross-examination

is for them. This woman was cross-examined by five of the perhaps most ferocious defense lawyers in the country. This is not one cross-examination by five of the perhaps most ferocious defense lawyers in the country. This is not one cross-examination, this was five. She was on the stand in total for nine days, seven under cross-examination. And when you're doing a jury trial, lawyers always have to make this calculation of how much you want to object or stop questions because you want to be likable to the jury. You don't want to look like you're blocking an answer that should be said. So I can imagine the Crown maybe letting more of questions that some may view as were

challenging in terms of where we're at in society right now. I don't know how to phrase that better, but that she let a lot of those things go that she might not have if it had been judge alone. What did we learn from the cross-examination? Oh my, so much. I mean, I think what happened was what you often saw was that EM under cross-examination, because she reiterated over and over again,

she's in this room, she's scared, she's just doing whatever she could to get through it. She went on autopilot, essentially. So when the defense counsels would make suggestions to her, she ultimately often would say, it's possible, I don't remember a lot of it. I think that when you're looking at a sexual assault case, which is always so difficult, and it's, you know, one version against another version, you know, she said things like it's possible that she was saying things such as, you know,

players come have sex with me. And she's saying she's doing this because she thought that's what the players wanted to hear and she just wanted to get through it. So saying those types of things, I think, make a conviction more challenging for sure, obviously, because it's beyond reasonable doubt. I think what's interesting is once the trial went judge alone, the media can, a publication ban is lifted on things that the jury didn't hear and we can report on on for example interviews that some of the players gave to danielle Robitaille who was doing the hockey canada investigation and what was interesting is some of their statements corroborate details that she told the court that were then called into question for example that one of the accused players michael McLeod saw her fall at the bar. He told danielle robita, he saw this, he told the police that he didn't.

Why are those statements given to Hockey Canada not admissible in this trial? In a pre-trial motion, a previous judge, Justice Thomas, found that the circumstances under which the players gave those interviews would make it unfair to them. So essentially Hockey Canada says, because they're doing a code of conduct investigation, and they're saying if you want to continue to play and you don't want to face a lifetime ban, you're going to cooperate with this. And it was challenged at the time,

saying these guys were facing criminal proceedings and Hockey Canada kind of moved forward anyway with some of the interviews and saying that they just, they were essentially coerced into having to give statements to Hockey Canada. And that's why they're not admissible in the trial. And it's not admissible because the judge found it would not be fair to them. We've heard from, over the course of this trial, as you mentioned, EM has been cross-examined.

There was testimony by two former Team Canada players yesterday. Who else are we expecting to hear from this week? I mean, it's so hesitant to guess at this point, but you know, we might hear from the players. The accused people do not need to testify in their own defense. The burden is entirely on the Crown. Is there any indication that they'll take the stand? You know, I think it's possible, at least some do.

I think that that's in play. I think we're gonna hear from more witnesses, but even yesterday, so we had Brett Howden on the stand and the Crown, we don't know exactly the nature of the concern, but the Crown told the court that she's wanting to introduce some legal arguments for some previous evidence he's given because the version he told events yesterday, She's wanting to introduce some legal arguments for some previous evidence he's given

because the version he told events yesterday, including things like, did you see her being upset during, like on the night of this alleged incident, that there were as many as 15 inconsistencies with previous statements. So this is kind of what we're seeing each day. He's one of the former Team Canada players. He isn't charged in this.

Correct, not accused of any wrongdoing, just a witness in the room. So we might hear from more of those players as well. Just before I let you go, I mean, and this goes back to how we started this conversation. This is almost a month into this trial. It has been extraordinary. A jury dismissed, missed trial already.

How unusual is this compared to other sexual assault trials? I mean, I don't think you can overstate it. One, it's the most significant sexual assault trial we've seen. I mean, I would say since the Jian Gomezi case, he was ultimately found not guilty in that case. We had Me Too since then. This is the country sort of taking stock of where we're at on these issues.

People are following this closely. The fact that we've had two juries dismissed, we've been plag juries dismissed, we've been plagued with endless technical delays and that we've watched five defense lawyers cross-examine this woman is gripping, it's upsetting, it's challenging. This is the justice system. And do we have any sense just finally as to how long the trial will continue? I mean, we're almost a month in. How many more days do we think any sense, just finally, as to how long the trial will continue? I mean, we're almost a month in. How many more days do we think this will unfold for?

They said eight weeks. They booked aside eight weeks at the end of April when they started. Now we've had some false starts. Now that it is a judge-alone trial, things will likely move much faster because you don't need to have arguments. You don't need to send the jury away to have legal arguments. You can just stop the proceedings, have a legal argument with the judge, proceed.

You're not as worried about the judge hearing evidence that isn't admissible because judges are trained to, you know, just evaluate the facts, put aside their feelings, focus on the law, whereas regular air quotes, regular people are not. So it should move much faster, but I have no idea how long this will take. I mean, at least into June. Yeah. We'll talk again much faster, but I have no idea how long this will take.

I mean, at least into June. We'll talk again in the meantime, Robin, thank you for this. Thank you. Robin Doolittle is an investigative journalist with The Globe and Mail. This has been The Current Podcast. You can hear our show Monday to Friday on CBC Radio One at 8.30 a.m. at all time zones.

You can also listen online at cbc.ca slash the current or on the CBC Listen app or wherever you get your podcasts. My name is Matt Galloway. Thanks for listening. For more CBC podcasts, go to cbc.ca slash podcasts.