The Decibel - Why the judge in the Hockey Canada trial dismissed a second jury

Episode Date: May 20, 2025

Last week, Justice Maria Carroccia dismissed the jury in the Hockey Canada case for the second time. The trial will continue and be heard by a judge alone, rather than appointing a new jury and starting over – a decision that means the complainant, a woman known only as E.M. due to a publication ban, won’t have to testify again. Robyn Doolittle has been covering the court case for The Globe. She explains what prompted this shocking development, what led to the first jury getting dismissed and how E.M.’s cross-examination ended. Questions? Comments? Ideas? Email us at [e-mail]

A warning before we start today. This episode includes allegations of sexual assault, and some listeners may find the details disturbing. Please take care. On Friday morning, the judge in the sexual assault trial of five former members of Canada's 2018 World Junior Hockey Team announced that she was dismissing the jury. And you know, you could see some of the jurors physically like express, like look like they're shocked or shrugged or shake their head. Robin Doolittle has been covering the trial for the Globe and Mail. All the journalists who were sitting in the courtroom this morning knew that the moment

was coming. And that didn't make the moment any less extraordinary. This is the trial of Michael McCloud, Dylan Dubay, Carter Hart, Cal Foot, and Alex Formanton. Each has been charged with sexually assaulting a woman known as EM in June of 2018. McCloud also faces a second charge of being a party to sexual assault. All five men have pleaded not guilty. The alleged assault made national headlines a few years ago when TSN reported that Hockey Canada had quietly settled a multi-million dollar lawsuit related to that night. Following public

uproar, London police reopened their investigation and later charged the five players. The trial started late last month. In the week since, EM has given testimony, been cross-examined by multiple defense lawyers, and then faced re-examination by Crown prosecutors. Friday's jury dismissal is the second major interruption. This whole saga has been stretching on for seven years. We've been in this courtroom for three weeks. We already had a mistrial. We've been plagued by constant

technical delays and concerns about the protests outside and just it's just been seemingly one thing after another and it was you know just one more thing in this already very tumultuous trial. There has been a lot about this case that we have not been able to tell you, but now we can. Robin Doolittle is a staff reporter with The Globe. She joins the show from London, Ontario. I'm Madeline White in for Manica-Ramon-Wilms and this is The Decibel from The Globe and Mail. from the Globe and Mail. Hi, Robin. Thanks so much for joining me today. I'm Eddie. So you're actually joining me from outside of the courtroom in London.

I really appreciate that. And we're speaking on Friday night. I wanted to just start by having you kind of walk us through what happened today in court. What happened today is that the judge presiding over the sexual assault trial of five former members of Canada's 2018 World Junior Hockey Team has just dismissed a second jury in three weeks. She did not declare a mistrial, although that was on the table. I think it's worth noting a second mistrial was on the table. But the Crown, Megan Cunningham, sort of reluctantly

agreed to a offer by the five different defense teams to proceed by judge alone. And the Crown's decision to do this will spare the complainant in the case, who is known publicly as EM, who by the way, just spent nine days in the witness box, including seven really grueling days of cross-examination by five of the country's toughest defense lawyers. It will spare her from having to do this all over again, because that's what could have happened if we had to get a third jury.

Yeah. What prompted the judge's decision here to dismiss the jury? So the fact that we are now a judge alone trial means I can tell you this and I can also tell you what caused the first mistrial. And we are going to get into that. So what happened today is the result of a note that one of the jurors passed to the judge on Thursday. And jurors can communicate with the judge this way by giving them notes and asking questions, et cetera. And in that note, the juror said that multiple jurors

were feeling essentially bullied by two of the defense attorneys. It was a pretty extraordinary claim. They specifically pointed the finger at Alex Fermenton's lawyers. This is one of the accused players. And those lawyers are Daniel Brown and Hillary Dudding, who are both very experienced defense attorneys. And why don't I actually just read you the note that is at the subject of all of this? It says, multiple jury members feel we are being judged

and made fun of by lawyers Brown and Hillary Dudding. Every day when we enter the courtroom, they observe us, whisper to each other, and turn to each other and laugh as if they are discussing our appearance. This is unprofessional and unacceptable. Off the top, I should say that the two lawyers categorically denied that this is the case.

They released a statement after this happened today, just pointing out that it would be very counterintuitive for the defense to alienate jurors. Mm-hmm. They called this an unfortunate misinterpretation of their actions. And they said, you know, they found themselves involved in this unusual chain of events. It is, I guess, worth noting that the judge did say to the courtroom that she's been, you know, watching everyone very closely and she's never seen anything inappropriate coming from the defense counsel. I think one of the suggestions, you know, if you're taking into consideration that Dan Brown and Hillary Dudding just categorically denied that they were making fun of the jurors,

that they were giving them dirty looks or making fun of their clothing. At one point, Daniel Brown sort of suggested that the tone sort of shifted after his cross-examination and the media coverage that came with his cross-examination because I guess it's worth noting Daniel Brown had one of the more intense cross-examinations of EM even. Can you quickly give me a sense of what you mean by that? Like there was a couple of times where he had a comment, you know, she was talking about feeling shame and embarrassment and he, you know, he was talking about feeling shame and embarrassment and he said something like shame and embarrassment for your choices or oh, it's never your fault. And, you know, now these, you know, five boys have to deal with the consequences of your

choice. I'm paraphrasing a little bit, but something like that and the judge sort of cautioned like, you know, save that for your closing remarks that this isn't appropriate at this time. He had a couple I don't know how to describe them other than singers that I think were on the more aggressive side of the cross examinations. Okay, so that's what the lawyers who are involved in this accusation are saying. But what happened after the judge learned of this situation? There was a brief break. The defense attorneys discussed the situation amongst themselves and then came forward to the judge,

not in the presence of the jury, and said, we need another mistrial. We cannot proceed. The jury is going to be biased against us. There is no reasonable way that our clients are going to be able to get a fair trial with what's happened. And there was some suggestion, you know, by the Crown that perhaps there could be what's called an instruction to the jury. This is saying to the jury, you know, I know

that you might have felt this way. That's not what occurred. Put it out of your mind. And then also to do an inquiry where you could ask the jurors, is this going to impact your ability to be impartial? Because part of the question is, the note said multiple jurors, but was it one, was it two, was it more, was it really just the one who's exaggerating? And I think part of the Crown's frustration was we have no idea because the judge did not conduct an inquiry. What the judge found was that there's just no way to

move forward and ensure the fairness of the trial and that she was going to have to declare a second mistrial, which she realized was an extraordinary decision given we'd already have one and given we just had the complainant testimony. But she did offer that she would proceed with what's called a judge alone trial, which means just she's going to hear the rest of the case, no more juries. The defense so far up to this point through all the proceedings had wanted a jury, but the five different teams came together and said, okay, we'll do judge alone. And the Crown actually opposed to that decision saying, you know, respectfully, we've presented so much of our key evidence and we've been presenting it

in the way that we would for a jury trial. If we had known this was going to be judge alone, we would have handled things differently. She didn't elaborate what that could be, but having watched the trial, I can think of things like perhaps the crown would have objected more during the cross-examination of EM. There's always a balance that lawyers have to make in front of a jury because you don't want to be unlikable for the very reason we're discussing. So we don't exactly know what she was referring to, but she said, okay, we can proceed by judge alone. So that's what happened.

So what are the consequences of becoming a judge alone trial? I mean, a whole bunch of things are going to be different now moving forward. But for us, the reporters who are covering the case, the big change is that one of the major publication bans is lifted. There's always a standard publication ban in these types of cases where anything that happens in court that doesn't happen in front of the jury cannot be reported on, which is why we couldn't explain what caused the first mistrial. But now that we're judge alone, everything that came up in the pretrial hearings, when just the lawyers were doing legal negotiations or arguments,

all of that can now come out, we're free to report on it. We'll be right back. Okay, so in the instance that happened on Friday, it is the second time in this case that the judge has had to dismiss the jury. So let's talk about the first time now, Robin. What happened during that instance? So the trial got underway on April 23rd. I was here that day. There was tons of media, huge anticipation. Obviously, we went through jury selection. The players entered their plea of not guilty. The Wednesday morning we start, Crown gets up after the break at some point,

does their opening remarks, they're laying out their roadmap of what they say they're gonna prove in this case. We go on the lunch break, and when we come back, before the jury is called back into the room, the judge tells the courtroom, the lawyers, people watching, although we can't report on. The judge tells the courtroom, the lawyers, people watching,

although we can't report on any of this at the time, that something occurred over the lunch break. One of the jurors says that they were approached by one of the defense counsel, who we know is now Hillary Dudding, at a market very close to the courthouse and that it was they felt it was inappropriate and this is you know a huge situation we've just started and I think it's also significant that this is day one and as they're leaving that the juries always get kind of the same instructions from the judge you are not supposed to discuss this case with anyone you shouldn't be reading any media articles about the case you're only supposed to know what's happening in the courtroom.

Don't talk to anybody who's in this courtroom, you know, just a kind of a standard charge. And I think one of the jurors took this really, really seriously. What we found out, because the judge called the juror in for an interview, and, you know, ultimately, the defense team involved made a statement about what happened. And what we understand, there's two different versions of events. The juror says that they're in line trying to get their lunch at this local food market. I think it's also worth noting here that the area of London where we are, it's quite small. There's very few places to go.

I have frequently been seeing the judge outside, the jurors walking around, defense counsel, you're next to the accused players in the hallways, the elevator. It's very cramped. There's few places to eat. So the market is a very popular destination. And so the lawyer is standing in line and the jurors behind her and the juror says that the lawyer essentially approaches her and says, there's a lot of head nodding going on this morning. And the juror who's been told not to say anything to anybody looks at her, nods, says nothing. She then gets her lunch, goes and sits down with another juror and says, you know, someone from the court just approached me. The other juror says, oh my gosh, what they say. That seems inappropriate.

The two of them get back to the court and then we find out they sort of tell everyone about what's happened here. The second juror tells the sheriff and then someone else hears and soon all the jurors are discussing this, you know, air quotes inappropriate interaction that happens at the market. In the defense attorney's version of events she's waiting to get lunch and sort of bumps into the person behind her she turns realizes it's a juror says oh my gosh sorry or awkward or something to that effect. She called it a reflexive reaction. Sort of closes her mouth, kind of nods, and then proceeds to get her food and goes back to court

and doesn't think anything of it. So we hear these two different versions of events and the judge, she seems to accept Hillary Dudding's version but it's, what's done is done. The jurors believe this is true, and they all have been talking about it. And they all believe that the defense counsel can't follow the rules and has been acting inappropriately right before the trial even starts. And that this is going to impact their ability to judge the case fairly because they

think that the defense is breaking the rules. And so just to be clear, though, like, this is the same, one of the same lawyers, right? Because in the instance that happened on Friday, the accusation of bullying was against the lawyers of Alex Formentin, Daniel Brown, and Hilary Dudding. And then this issue with the lunch lineup bump in and the dispute over exactly what happened there. That is also Hillary Dudding. Is that right? It is. Robin, for those who haven't been following the trial, could you give us a sense of the case and what's alleged on either side?

So just to really quickly summarize what her version of events are. It's essentially on June 18, 2018, EM goes to a bar in downtown London called Jack's with some coworkers. And they're drinking, they're dancing. She bumps into some of the players of the 2018 World Junior Hockey Team who are in town celebrating their gold medal win at the World Championships. After this big Hockey Canada gala ends, the players come to Jax. That's where she meets them. She and one of the players, Mike McLeod, spend much of the night together and they eventually leave together and have consensual sex at his hotel which is nearby. It's called the Delta Armories. She alleges that when they finished, he began inviting teammates to the room

without her knowledge, and that when they started showing up, she was shocked, she was scared, and she ultimately says that she did whatever they said for the next couple of hours because she felt she had no choice. And she alleges that they, you know, ordered her to do various sexual acts, that they, you know, threatened to put a golf club

inside of her and various other things. She says that she, you know, went into autopilot and went numb and was just doing whatever she could to get through the night. She's also testified, though, that she was crying at times and that the players saw her crying and that she tried to leave, but they convinced her to stay. The defense attorneys, when they got up,

basically said this is not at all what happened, that she was the one after she had consensual sex with Michael McCloud that said, why don't you invite your friends from the bar to the room and we'll have a quote wild night. And that she was the one that initiated the sexual activity and that when the men started arriving she was saying things like come have sex with me and we've now heard testimony from one man who was in the room who you know has not been charged who said that yeah that's what

happened. We've also heard testimony that the players had a group chat after the fact where they said, we've got to get our story straight. They also said things like, though, we got consent, there's no problem here, but let's just all say the same thing. So it's a messy case from top to bottom. Yeah.

And of course, at the center of this trial is the question of consent. I think the thing with consent is that very few people have an understanding of what it actually means in a legal sense in Canada. I think when we're, you might remember being a teenager and hearing no means no. It used to be the law that women had to show physical signs of trying to resist.

You know, there had to be ripped clothing and scratches for resistance to happen. And when, in fact, the law of consent is it's not about saying no, it's indicating yes. And it doesn't have to be a verbal indication, but it has to be an indication. And then consent also has to happen in the moment of the sexual

activity. You can't give consent before, you can't give consent after, and it has to be for each sexual act. So you can't, just because you might consent to say have oral sex at 10 p.m., at 11 p.m., that doesn't mean that you can't withdraw consent to have vaginal sex or etc. etc. So all of those issues will be very much live in this case. So before I let you go here, Robin, what do we know about what happens next in this trial? I am so hesitant to make any prediction in this trial because it just seems like who even knows. But I think we can expect to hear from some more players. I think a big question will be whether the accused players

testify in their own defense. They do not have to. The burden of proof on this is on the Crown entirely. The players have the weight of the state against them. They have pleaded not guilty, but they do have that option. We're gonna hear from police investigators as well about, because there's been many investigations, right? There was two police investigations.

There was a Hockey Canada investigation. And the fact that it's now judge alone, lots of things could change because the difference between a jury and a judge is that the judge knows the law and they have been trained to be able to put things out of their mind that maybe might be emotionally appealing, but that doesn't fit with the facts. Whereas juries are much more susceptible to their gut as opposed to the facts. So I think that we don't really know what's going to happen next. Well, Robin, thank you so much for joining me today. Thank you.

That was Robin Doolittle, a staff reporter with The Globe. That's it for today. I'm Madeleine White in for Manicow-Ramond-Wilms. Our intern is Kelsey Howlett. Aja Souter is our associate producer. I produced The Decibel with Michal Stein and Ali Graham. Tiff Lamb helped with this episode. David Crosby edits the show. Adrian Chung is our senior producer.

And Matt Frainer is our managing editor. Thank you for listening.