Hockey's caveman culture must come out of the dark ages
Everyone even remotely connected to hockey is no doubt straining under the weight of multiple feelings today.
The acquittal of five elite hockey players on charges of sexual assault was not unexpected. Throughout the eight-week trial, legal commentators flagged issues that undermined the Crown's case. In the end, Justice Maria Carroccia reached the conclusion that the complainant in this case — known only as E.M. — was not reliable.
Many opinion writers have expressed concern about how this case demonstrates all that is wrong with the way the legal system views allegations of sexual assault. Those concerns are completely justified.
We need to reframe and modernize the way that system adjudges complaints of this kind, particularly the legal system's definition of 'consent,' a core element in the verdict.
Beyond the verdict, however, this case continues to highlight concern about the culture of elite sports in general and hockey in particular. A culture that made it OK for five young, privileged men to share a single woman for sexual gratification.
My concern isn't some sort of puritanical repudiation of sexual kink; the spectrum of healthy sexual activity is, as it should be, very broad. My specific concern is that the athletes involved believed it was within the spectrum of healthy to take turns having sex with E.M. in each other's presence.
That, in and of itself, raises a range of other issues, some that delve deep into the heart of hockey culture.
Although Hockey Canada and its member organizations are trying to promote a healthier attitude towards diversity and inclusion, and definitions of healthy sexual relationships, their efforts seem to be insufficient.
For example, since 2016, the Ontario Hockey League, one of Canada's top junior hockey loops, has delivered an educational program on gender-based violence and sexual consent that is supposed to be mandatory for players on all 20 OHL teams.
Unfortunately, the sexual assault centres that helped build the program say some teams refuse to participate. The league claims it has no knowledge of teams refusing to participate. The league's 'hear no evil, see no evil' attitude is one of the reasons why it seems that the caveman culture of hockey has been allowed to perpetuate.
Last year, Hockey Canada reported that penalties assessed under Rule 11.4 — which penalizes players for taunts or insults based on race, ethnicity, skin colour, language, religion, age, sexual orientation/gender identity or genetic characteristics — were skyrocketing.
Since it was introduced to the rule book in 2021-22, the number of Rule 11.4 infractions has gone up by 150 per cent. Even if this is partly due to an initial reluctance by referees to assess these penalties, it's a sign that hockey continues to feature a toxic undercurrent of abuse and discrimination.
It seems more and more that even when a few responsible adults try to do something to address these concerns, some other adult comes along and undermines the positive efforts.
In 2023-24, the NHL had trouble figuring out how to deal with a handful of players who refused to participate in annual Pride celebration games. In response, some teams, such as the Toronto Maple Leafs ,made their own efforts to educate players about the importance of tolerance and inclusion.
In April 2023, the Leafs invited former U.S. Olympic hockey player Meghan Duggan to talk about how gay players were treated by the sport and by society in general. Duggan is gay and a well-known advocate for LGBTTQ+ athletes.
Duggan's presentation, which the Leafs posted on social media, involved her asking the players to raise their hands in response to a series of questions that started from the very general to the very personal.
'Raise your hand if you've ever had to stand in front of someone and justify your right to be married.' Duggan was the only person to raise her hand.
'Raise your hand if you've ever had to fight to be recognized as the parent of your own children.' Again, Duggan stood alone with her hand up.
Duggan's heartbreaking testimonial should have had a profound impact on the Leafs and, quite frankly, on all professional hockey teams. Unfortunately, it did not.
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Shortly after Duggan spoke to the team, the Leafs and other NHL teams decided to no longer wear Pride-themed warm-up jerseys in deference to a handful of players who refused on religious grounds. They did allow players to use Pride-coloured tape on their sticks.
Then, in June, the NHL outright banned Pride jerseys, arguing the controversy over players refusing to wear them was overshadowing the fact that all 32 teams were still hosting Pride celebration nights. In October of the same year, the league banned Pride-coloured stick tape.
The inability of all levels of hockey to make unambiguous statements about racism, homophobia and sexual misconduct, and to punish those who refuse to get on board, is one of the main reasons we will never escape events like the trial of those five players.
It's hard to know how to respond to our collective failure, but one step forward would be to stop letting the cowards make all the decisions.
dan.lett@winnipegfreepress.com
Dan LettColumnist
Dan Lett is a columnist for the Free Press, providing opinion and commentary on politics in Winnipeg and beyond. Born and raised in Toronto, Dan joined the Free Press in 1986. Read more about Dan.
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Global News
2 hours ago
- Global News
World juniors case raises consent questions, but appeal unlikely: experts
An appeal by Crown prosecutors of Thursday's acquittal of five hockey players in the high-profile world juniors sexual assault case is unlikely, legal experts say, despite questions about whether consent was properly considered. Michael McLeod, Carter Hart, Alex Formenton, Dillon Dubé and Cal Foote were found not guilty of all charges after a weeks-long court case that centred on an alleged group sexual encounter in London, Ont., in 2018, in which the players had been accused of non-consensual sex. The Crown has 30 days to decide whether to appeal the decision to a higher court. In her ruling, Ontario Superior Court Justice Maria Carroccia said she did not find the female complainant, known as E.M. in court documents due to standard a publication ban, 'credible or reliable.' She also dismissed the Crown's argument that E.M. had only consented out of fear. Story continues below advertisement 'This case, on its facts, does not raise issues of the reformulation of the legal concept of consent,' she said in her decision. While those statements and others made by Carroccia have been criticized, even legal experts who take issue with them say they may not be sufficient grounds for an appeal. 'I don't agree with the way that the judge came to her decision, but the decision is really well-reasoned,' said Daphne Gilbert, a legal professor who teaches courses on sexual assault law at the University of Ottawa. 'Appeal standards aren't just that you disagree with the result. You have to to show an error in law. And I don't see an error in law in the decision itself.' 3:56 Why the judge acquitted all 5 former Hockey Canada players in sex assault trial How the legal definition of consent factors in Melanie Randall, a Western University law professor whose research includes women's autonomy rights, said Canada's 'extremely progressive statutory definition of consent' in criminal law means 'we're not looking for the 'no,' we're looking for the 'yes.'' Story continues below advertisement In other words, she said, a judge or jury must take into account the female complainant's own mindset behind her decision to consent to a sexual act, and determine if that consent is truly voluntary, which can be a subjective assessment. The court heard during the trial that E.M., who testified she was drunk and not of clear mind, was in the washroom after she had consensual sex with McLeod on the night in question and came out to a group of men in the room allegedly invited by McLeod in a group chat. It was then that the Crown alleged several sexual acts took place without E.M.'s consent. Get breaking National news For news impacting Canada and around the world, sign up for breaking news alerts delivered directly to you when they happen. Sign up for breaking National newsletter Sign Up By providing your email address, you have read and agree to Global News' Terms and Conditions and Privacy Policy Defence lawyers suggested E.M. wasn't as drunk as she said she was, wanted a 'wild night' with the players, was 'egging' them on to have sex with her and accused her of having a 'clear agenda' during the court process, which was a judge-only trial. E.M. pushed back against those claims and at points outright rejected them, saying she was coaxed into staying in the room and was disrespected and taken advantage of by the group, who she said 'could see I was out of my mind.' 'E.M. was unwavering in telling the court that she did not consent, she did not want this, she did not provide her voluntary agreement,' Randall said. Story continues below advertisement 'She explained in excruciating detail why it was complex for her to cope in that situation where she felt threatened and unsure of how to respond, and I think used a lot of strategies of appeasement and acquiescence.' 2:36 World junior trial: Players found not guilty in high-profile sex assault case Although Randall agreed that the decision itself was legally sound, she believes Carroccia 'went much further than she needed to' in the analysis of consent by ruling E.M.'s consent was voluntary. 'The judge basically said one of two things: either she knows better than E.M. does what her own subjective state was, or E.M. is a liar,' Randall said. 'I think those are two very unfortunate and damaging consequences of this decision.' Gilbert said a possible appeal could be launched on the allegation the judge was biased against E.M., but called that 'kind of a nuclear option.' Story continues below advertisement 'Usually you wouldn't accuse a judge of bias from what they write in a judgment, because they're actually making explicit the reasons upon which they made their decision,' she added. 'Bias arguments are more likely to come from attitudes in the courtroom or things that were said in the courtroom that then you felt contributed to a wrongful verdict.' She suggested the judge could have done more to rein in the defence lawyers in their cross-examination of E.M., which the complainant's lawyer Karen Bellehumeur said after the verdict Thursday was at times 'insulting, unfair, mocking and disrespectful.' 'A fair trial is one where decisions are made based on the evidence and the law, not on stereotypes and assumptions, and where the trial process respects the security, equality and privacy rights of the victim, as well as the accused persons,' Crown attorney Meaghan Cunningham told reporters outside court Thursday. Toronto lawyer Lorne Honickman told Global News the Crown will likely look 'very, very closely' at the issue of consent in the judge's ruling as it determines its next steps. 'If they believe that there may have been an error there in law, they will take this 30-day appeal period or review period to determine whether or not they want to appeal,' he said. 'Perhaps — and I underline 'perhaps' a hundred times — a higher court will be looking at the issues here and making further determinations.' Story continues below advertisement 2:26 Protestors gather as judge gives ruling in World Junior hockey sexual assault trial Scientific context missing in consent argument In her ruling, Carroccia noted the Crown did not present any scientific evidence or testimony she could consider that would support its claims that E.M.'s had only consented under fear or duress — something scientific experts were also puzzled by. 'I think the complexity of how the complainant responded isn't well understood,' Dr. Lori Haskell, a Toronto-based clinical psychologist who specializes in trauma and abuse and has served as an expert witness in previous trials, told Global News. Story continues below advertisement Haskell cited neuroscientific research that has shown how the brain can shut down parts of the prefrontal cortex that affect decision-making, logic and reasoning in stressful or threatening scenarios. 'They're now in survival brain,' she said of people during situations of real or perceived threats. 'It's easy when you're not in that situation to assume you could (fight or run away), but I think we need to look at, what are similar situations? How do people respond?' She continued: 'I mean, how do men respond to hazing on sports teams? We know young men in universities have been quite traumatized with things done to them.' Without that further context, experts like Gilbert and Randall said the judge's ruling appeared to accept some of the most widely-held myths regarding sexual assault, including arguments made by the defence lawyers that E.M. had 'created a lie' out of regret and embarrassment. 'Although the slogan, 'Believe the victim,' has become popularized as of late, it has no place in a criminal trial,' Carroccia wrote at one point in her decision. 'To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing the burden on him to prove his innocence.' Story continues below advertisement 0:49 All 5 former World Junior players found not guilty in high-profile sex assault trial London, Ont., defence lawyer Phillip Millar told Global News he felt 'relief' to see that sentiment expressed in the decision. 'I was worried our judicial system has (been) going too far in terms of buying into the 'believe all victims' (idea) before the person has been determined to be a victim by the justice system,' he said. 'What was done is the law of consent was properly applied. You can't redefine consent because it's inconvenient to you, or because you want to retroactively retract it. Just because you're not proud of what you did on a day doesn't give you the ability to redefine what is consent.' 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CTV News
12 hours ago
- CTV News
Quebec sexual violence advocates shocked by ruling in Hockey Canada trial
Following the judgement that acquitted 5 national junior hockey players of sexual assault, people who work with victims of say the judgment is upsetting After five national junior hockey players were acquitted of sexual assault, people who work with victims of sexual violence say the judgement is extremely upsetting and may do more harm in the future. Supporters of the complainant known as E.M. stood outside the London, Ontario courthouse Thursday. Melanie Lemay, co-founder of Québec contre les violences sexuelles (Quebec against sexual violence), said she was there in spirit. 'No matter what happened yesterday, I believe E.M. And a lot of people do. And we need to do better to protect young women,' said Lemay. Justice Maria Carroccia said she didn't find the complainant's evidence to be credible or reliable. Author and director Lea Clermont-Dion was sexually assaulted when she was a minor. She says the judgement was too harsh. 'It was really difficult to hear those words, because I've got the impression that the verdict will reinforce myths and stereotypes that continue to be reinforced in society about the victim blaming,' said Clermont-Dion. Author of Crossing the Line: Sexual Assault in Canada's National Sport, Laura Robinson says she understands why there had to be an acquittal. Beyond reasonable doubt is what's needed, but says she was 'shocked' by the judge's remarks. 'When you understand where traumatized victims are coming from, you know, that they have, discrepancies in how they account things,' she told CTV News. Advocates say the high profile nature, and not guilty verdicts, will discourage survivors from coming forward. A report released last year found just six per cent of sexual assaults are reported to police. 'We don't need to be discouraged. People believe you, and it's not because they don't go to trial that doesn't validate what you've been going through,' said Lemay, who is a survivor herself. And if a case reaches trial, Clermont-Dion says E.M.'s seven days of cross examination are enough to dissuade anyone. 'I had a cross-examination of two days and a half and it was absolutely difficult. So we have to think about those way of doing things. We can improve it. We can change things so that the confidence towards did justice system is improve[d],' she said. Clermont-Dion and Lemay have done consent workshops with the QMJHL and Montreal Canadiens, respectively. But add more needs to be done to change hockey culture. 'So we still need to think, on the wider spectrum, on the how do we teach consent to younger generations because we don't have this discussion with them,' said Lemay.
CBC
13 hours ago
- CBC
Court worked as it's designed to in the Hockey Canada case. That's the problem, survivors and lawyers say
Social Sharing WARNING: This article references alleged sexual assault and might affect those who have experienced sexual violence or know someone affected. In the course of her daily work, Alexa Barkley meets with people who debate whether to go to police after being sexually assaulted. Barkley walks them through their options, careful to lay out the facts without pressuring them to choosing one over the other. She's delicate, until it's time to warn them about what they'll be up against if their case makes it to court. "I have to explain what they're going to be up against in engaging the system and how traumatic it can be," said Barkley, 45, a survivor of sexual assault and advocate with End Violence Everywhere. "I wish I had better news for them, quite frankly." Barkley is among survivors, advocates and lawyers who argue the trial for five former Hockey Canada athletes again underscores how the traditional Canadian court system is fundamentally ill equipped to settle cases of sexual assault in a way that balances the rights of the accused while protecting complainants' well-being. They say there is no one-size-fits-all alternative because different survivors will define justice differently. They said successful models used elsewhere need to be explored in Canada because, under the current system, someone always loses something — even when complainants "win." Case a high-profile example Ontario Superior Court Justice Maria Carroccia cleared all five ex-world junior players — Michael McLeod, Dillon Dubé, Alex Formenton, Cal Foote and Carter Hart — on sexual assault charges. She found the Crown didn't prove its case and E.M., the complainant, was an unreliable witness who had at times consented to group sexual activity in 2018. Four of the five men declined to testify in their own defence during the trial, and E.M. was in the witness box for nine days. WATCH | How the Hockey Canada trial could affect future sexual assault cases: In cross-examination, defence lawyers questioned the complainant on discrepancies between her statements to police in 2018 and her statements during Hockey Canada's own investigation in 2022. They asked whether she was actually as drunk as she claimed, pointing to videos of E.M. being steady on her feet in black high heels. They suggested she was the one who wanted a "wild night" and adopted a "porn star" persona as she encouraged the men to have sex and mocked them if they declined. They said she only came forward to police because she wanted to keep the undisclosed amount of money from a settlement with Hockey Canada and to save face with her boyfriend, friends and family. On Thursday, defence lawyers called the ruling a "vindication" and "exoneration," but not after their clients endured a one-sided trial in the court of public opinion for the better part of a decade. "The Crown attorney's office did not have to take this case to trial. Instead of pursuing restorative justice, the Crown forced a distressing and unfair trial to the detriment of Mr. Hart, his co-accused, the complainant and the Canadian public," said Megan Savard, lawyer for Hart. E.M. told the court she would've preferred to resolve the issue by having police speak to the men about their actions, but felt she had no choice but to pursue criminal charges after police told her in 2018 that the men could not be forced into a conversation. (In her ruling, Carroccia said she found the cross-examination "entirely appropriate" for the case.) WATCH | Player's lawyer says he would've engaged in restorative justice to resolve case: Lawyer for Carter Hart says trial's outcome was 'not just predictable, but predicted' 1 day ago Megan Savard said Thursday the decision in the Hockey Canada trial was vindication for her client, Carter Hart. She says her client would have been willing to engage in restorative justice process had it been offered, rather than go through what she called a distressing and unnecessary trial. Survivors need variety of options to choose from, experts agree Few people report sexual assault to the police and only a fraction those who do end up securing charges and criminal convictions. Statistics Canada data shows only 36 per cent of police-reported sexual assaults ended in charges between 2015 and 2019, and fewer than half of those ended in a guilty verdict. Most complainants want to resolve their cases with accountability, prevention and the healing opportunity to have their experience heard and acknowledged. Like E.M., Tanya Couch felt she had no alternative but to pursue some form of justice in the criminal system. Her former commanding officer was charged with sexual assault in 2021, but charges were stayed at Couch's request two years later because defence counsel requested access to her counselling records and personal journals. "There are no other options," Couch said of going to court. "I do think that that should be an option for victims to decide — the victim knows what's best for them." There is no universally agreed alternative to the court system because sexual violence is a complex offence and the definition of "justice" varies between survivors. Research from North America and Europe over the years has shown blended approaches, with a combination of trauma-informed practices, community accountability and legal reform being most effective. There is consensus that survivors need to be properly informed and supported as they choose between a range of options. The European Forum for Restorative Justice last year conducted eight interviews with eight survivors who met with the perpetrator who sexually assaulted them, from childhood abuse to incest to stranger assault. No two meetings were the same and survivor's said a sense of agency was key. "It was recognized that in many cases, it is the process, not the outcome, that makes for successful restorative justice. Success is achieved when, at the end, the person harmed feels listened to and satisfied [with the process], because the process was needs-led," authors wrote. E.M.'s lawyer, Karen Bellehumeur, a former Crown prosecutor with Ontario's Ministry of the Attorney General, has pushed for confidential, trauma-informed legal representation for all victims to better protect their rights throughout the process. Toronto-based lawyer Joseph Neuberger, who for decades has represented sexual assault complainants and suspects, said such cases should be removed "entirely from the criminal justice system." He said the country needs a separate regime where trained professionals — not necessarily police — guide complainants and accused individuals through a dispute resolution-type process, if the former has no interest in court. "That may give a complainant far more satisfaction than going through a trial and having an acquittal or some conviction, which at the end of the day may seem to be like a Pyrrhic victory because of the emotional destruction they've gone through," said Neuberger, referring to an achievement not worth winning because the cost is so high. "A more satisfactory outcome is not defined by wins, or losses or convictions. It's defined by how we solve problems, how we solve a societal problem," he continued. "How do we make better judgments? How do we understand each other's dynamics? How do we understand consent? How do we understand mutual respect? This can be dealt with in a non-criminal setting." Canada has tried its hand at reform Following the public outcry over the Jian Ghomeshi case, changes were made to the Criminal Code to prevent defence lawyers from surprising complainants at trial with past emails or text messages with the defendant. A long-awaited bill requiring new judges to undergo training on sexual assault became law in 2023, though it doesn't include existing ones. There is a patchwork of restorative justice options available in some provinces, but nothing nationwide. "We have to find other ways ... but it's difficult because so much of our culture is based on the idea that, 'If somebody does something wrong and hurts another person, you have to charge them and they go to jail.' But it doesn't work like that," said Judy Rebick, a writer and feminist who has been advocating for a better approach since Canada's rape shield laws reached the nation's highest court in the early 1990s. The experts, including E.M.'s lawyer, said they hoped the case would be the wake-up call they've wanted. Barkley agreed. If there's any silver lining, she said it's that the case has made the criminal justice's shortcomings difficult to ignore. "When I'm telling survivors about my experience or the experience of other advocates, they're thinking, 'OK, well, maybe, maybe this won't happen to me. Maybe this is not normal what you've experienced.' Now, they're getting it from multiple sources. Now they can see in the news how bad it is ... they can see how egregious their treatment will be," Barkley said in an interview from her Mississauga, Ont., home. "With the Hockey Canada trial, it's dragged it all out into the open."
