How Hockey Canada sexual assault case became a flashpoint for perceived toxic culture in junior hockey

National Post

3 days ago

If there was an apt metaphor to describe the Hockey Canada sexual assault case, it might be a tiny snowball suddenly pushed down a very steep, snowy mountain.
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By the time it reached the bottom – culminating in Superior Court Justice Maria Carroccia's verdicts in the case Thursday – the snowball had picked up so much speed and size, it ultimately became an avalanche of controversy and public outcry over the perceived toxic culture inside our national obsession.
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The much-publicized trial tried to get to the bottom of what happened inside the Delta Armouries hotel room between a now-27-year-old woman, her identity protected by court order, and a group of Team Canada world junior hockey players who were in London on June 18 and 19, 2018.
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The players were together for a Hockey Canada gala for the first time since they'd won gold medals in Buffalo months earlier. The woman, then 20, said she met accused Michael McLeod and other players at Jack's bar on Richmond Row and returned to the hotel with McLeod for consensual sex, before more men came into the room after a night of drinking.
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The sordid details were widely reported and debated over the eight weeks of trial. Ever since McLeod, 27, Carter Hart, 26, Alex Formenton, 25, Dillon Dube, 26, and Cal Foote, 26, were charged in January 2023 – and when London police Chief Thai Truong apologized to 'the victim' for how long it had taken to reach that point – the case hasn't been as black-and-white as a referee's jersey.
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The key issue at trial was subjective consent, but the details of what happened in Room 209 are hazy. What went on was clearly offside, but just like in hockey, offside doesn't usually result in game misconducts.
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How a closed, eight-month London police investigation by experienced officers in 2018 ended in no charges, only to be re-opened in 2022 with charges laid, could arguably be linked to the pressure put on a damaged Hockey Canada suddenly bombarded with bad publicity, abandonment by sponsors and a public shocked over allegations that amounted to gang rape in a civil statement of claim.
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Some of that was hinted at in Superior Court Justice Bruce Thomas's ruling during pre-trial motions late last year to exclude statements from the trial made to Hockey Canada by three of the accused players interviewed in 2022.
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The Crown wanted to use the statements that had been obtained through a warrant to highlight inconsistencies. Thomas denied the request, saying the statements offended fair trial interests.
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Revealed during the pre-trial motion and the trial was that despite the players being cleared by the police in early 2019, Hockey Canada chose to settle a $3.55-million civil suit launched against it, the Canadian Hockey League and eight 'John Does' by the woman in April 2022 a month later for an undisclosed amount, using a fund partially made up through registration fees set aside to handle sexual abuse claims – and without telling the players about it or giving them an opportunity to defend themselves.
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The complainant admitted during her lengthy trial testimony that after the civil case was settled and once she proffered a statement drafted by her lawyers to Hockey Canada in 2022 – after avoiding them for three years – she thought 'this was done. I thought it was case closed.'
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But by then, the allegations which were never proven in a civil court had been widely publicized and the public shock and anger picked up speed. A Parliamentary committee in July 2022 wanted some answers from the hockey organization. Hockey Canada said it would co-operate with the police.
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Hockey Canada published an 'Open Letter to Canadians,' acknowledging they were 'angry and disappointed in Hockey Canada – rightfully so.'
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Even though it had conducted its own independent investigation in 2018, the organization apologized, saying it had 'failed Canadians' and hadn't done enough to address what happened 'or to end the culture of toxic behaviour within our game.'
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Hockey Canada changed its code of conduct and pledged to re-open its investigation, requiring all players to participate in the probe or face lifetime bans from Hockey Canada teams, Olympics, world championships, tournaments, games and coaching at all levels – even teams involving the players' future children.
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The discussions were confidential, unless circumstances changed. Those who didn't cooperate would be 'named and shamed.' This had to have shaken the players, who had spent the bulk of their young lifetimes pursuing their professional hockey dreams.
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Toronto lawyer Danielle Robitaille was the third-party who headed up the 2018 Hockey Canada investigation, which she was careful to keep separate from the police probe. She stood it down in July 2018 until the police investigation was over after talking to several players.
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Her only compliance was to pass on now-retired London police Det. Stephen Newton's contact information should any of the players want to talk to him. McLeod, Formenton, Dube and Foote all made voluntary statements to Newton in the fall of 2018 before he closed the case in February 2019.
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Once the case was closed, Robitaille only needed to speak to the complainant to complete her report. However, texts, emails and phone calls to the woman went unanswered and in September 2020, on the advice of Hockey Canada, she ended her investigation, Thomas noted in his decision.
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Robitaille, who testified before the Parliamentary committee, was called on to complete her work in 2022. Thomas pointed out she had new 'marching orders' and a new 'tool' in the code of conduct that obligated the players to cooperate in any investigation related to any breach in Hockey Canada's policies.
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The new rule bypassed the right for any player to have a hearing before any disciplinary action. 'Hockey Canada effectively imposed disciplinary measures without due process,' Thomas wrote in his decision.
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The lawyers for the players cried foul about the mandatory Hockey Canada interviews, calling them compelled, involuntary and forced. Robitaille reminded them of the potential lifetime ban.
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'In her evidence (at the pre-trial motion), Ms. Robitaille agreed that 'naming and shaming' the applicants would associate them with the allegations of 'gang rape' that had surfaced and would have a devastating effect on their reputations and careers,' Thomas wrote in his decision, adding the public would see how Hockey Canada collected the statements as unfair if they were presented at the trial.
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Meanwhile, the public began to speculate which players were involved. The London police re-opened the case later in July 2022 and Thomas noted that 'one of the fresh investigative avenues considered' was to get the Hockey Canada files through a court order.
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The investigating officer later testified at the trial that the complainant 'was actually quite upset' when the police told her they were reviving the investigation, and surmised that it was 'opening some wounds she was trying to close.'
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Then, in early August 2022, a Hockey Canada lawyer indicated the organization would waive privilege and give their file to the police without the need of a production order. Robitaille was upset with Hockey Canada's position.
The police declined the offer and told Robitaille and Hockey Canada that 'they now had reasonable and probable grounds to believe that several players had committed sexual assault' and would seek the court order.
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'Ms. Robitaille did not disclose this fact to the defendants before interviewing them,' Thomas wrote.
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It was clear by the fall of 2022 that the suspect players weren't giving statements to the police. But Robitaille interviewed the players anyway, knowing it was likely the police would succeed in obtaining her file, Thomas wrote.
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Robitaille was under pressure because the investigation had taken time away from her law practice. She agreed that the interviews be done with lawyers present and only handwritten notes taken, which Thomas said 'would likely be vague, incomplete and open to conjecture.'
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Thomas rejected a Crown application to have Robitaille made a 'person of authority' for purposes of the trial. He also rejected the defence assertion that her investigation was aimed at assisting the police.
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On Oct. 21, 2022, Superior Court Justice Michael Carnegie issued a production order for the Hockey Canada investigative file. By then, Robitaille had interviewed McLeod, Formenton and Dube. Her investigative file was passed on to the police on Nov. 17, 2022.
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