'Consent videos' a focus of ex-world junior hockey players' trial —
but does such evidence stand up in court?
IN DEPTHKaren Pauls,
Katie Nicholson | CBC News | Posted: May 4, 2025 8:00 AM | Last
Updated: May 4
Consent isn't always understood and some are putting misplaced
trust in videos, experts say
Image | Cellphones, video at night
Caption: People take video on their cellphones in this 2023
file photo. The #MeToo movement brought with it a rise in the
use of documented consent, such as videos, where partners state
the level of physical activity they're comfortable with before
getting intimate. (Juan Mabromata/AFP/Getty Images)
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WARNING: This article references sexual assault and may affect
those who have experienced sexual violence or know someone
affected by it.
The sexual assault trial of five former Canadian world junior
hockey players in London, Ont., centres on the issue of consent
— what it is and what it is not.
Michael McLeod, Dillon Dubé, Carter Hart, Cal Foote and Alex
Formenton are each accused of sexually assaulting the then
20-year-old woman, known as E.M. under a standard publication
ban, in June 2018. McLeod faces a second charge of being a
party to the offence. All the accused have pleaded not guilty.
The Crown's case focuses on the issue of consent, and includes
two short videos of E.M. that were taken by McLeod and
presented as evidence at the trial.
But CBC News spoke to experts who said that even after the
#MeToo movement, the concept of consent isn't always understood
and some people are putting misplaced trust in videos
mentioning it.
* E.M. was 'out of it' leaving bar with 1 of the ex-world
junior players, she says at sex assault trial
Kaitlynn Mendes is a sociology professor who holds the Canada
Research Chair in inequality and equity at London's Western
University. She also researches technology-facilitated sexual
violence.
"Consent is something that can only really happen in the
moment.… Consent has to be ongoing. It's something that can be
withdrawn at any point," said Mendes.
The video is not going to be determinative of whether there
was consent at the time for the specific acts. - Lisa Kerr,
Queen's University, associate law professor
For example, she said, if someone has consented to having sex
with one person and a second person enters the room, or they
want to change acts, the participants need to get consent, in
the moment, for everything that's happening.
"That's really the only case in which these videos, I think,
could really stand up," said Mendes, who also acknowledged
recording a video in the moment of sexual activity isn't so
straightforward to do.
She said "consent videos" are meant to pre-empt accusations
that a sexual encounter was not consensual by stating the level
of physical activity you're comfortable with before getting
intimate.
They're not new.
They became popular during the #MeToo movement, which focused
on addressing sexual harassment and abuse, particularly in the
workplace.
That movement gained international prominence in 2017 because
of the allegations surrounding the Harvey Weinstein and Bill
Cosby sexual assault cases.
What an accused, E.M. said in video evidence
At the trial for the five former world junior players, the
Crown told court in its opening statement that E.M., 20 at the
time, was at Jack's bar with friends.
That same night, the Canadian world junior hockey team was at a
gala celebrating their championship win months earlier, and
then went to Jack's bar.
Court has heard a few of the players, including McLeod, chatted
up E.M., and she started dancing with him after she got
separated from her friends.
* After #MeToo, phone app allows you to legally consent to
sex
The jury has viewed surveillance video from Jack's that night
that shows Dubé and McLeod dancing with E.M.
E.M., who began testifying on Friday and continues on Monday,
also viewed some of the footage under questioning from the
Crown.
Video shows McLeod and E.M. leaving the bar and going to the
Delta hotel, where McLeod and his teammates were staying. E.M.
and McLeod had consensual sex, said assistant Crown attorney
Heather Donkers, adding that is not the problem — it's what
allegedly happened afterward. Soon after that, Donkers said,
"the atmosphere in the room changed."
Image | hockey players composite
Caption: Dillon Dubé, Cal Foote, Alex Formenton, Carter Hart
and Michael McLeod, left to right, are seen Wednesday as they
enter the London, Ont., courthouse for their sexual assault
trial. (Nicole Osborne/The Canadian Press)
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Last week, the jury saw a short video in which a male voice
asks E.M. if she's "OK with all this stuff." She responds,
"Yeah, I'm OK."
In a second video, recorded an hour later at 4:26 a.m., E.M. is
shown with no clothing and holding a towel in front of her
chest.
She tells the camera, "It was all consensual. Are you recording
me? K, good. You are so paranoid. Holy. I enjoyed it. It was
fine. I'm so sober — that's why I can't do this right now."
Crown in hockey case argues videos not proof of consent
Donkers also said in her opening statement that the prosecution
plans to argue the videos are not evidence that E.M. did, in
fact, consent.
"The defendants took no steps to ensure there was affirmative
consent when they touched her. Instead, they just did what they
wanted," Donkers said.
Mendes hasn't seen the consent videos herself, but has
questions about the context in which they were recorded. Who
was in the room? Was there coercion or threats? Was the
complainant sober and able to consent?
"We don't know whether it was like, 'Hey, you need to record
this video before you're allowed to leave.' Are there other
people standing around intimidating you? … Do they feel as
though they're being coerced into saying that, yes, this was
consensual?"
Image | Hockey Canada trial Delta hotel room London
Caption: The entrance to Room 209, back left, at the Delta
hotel in London, Ont. The room was registered to some of the
then junior hockey players now on trial. (Darryl Dyck/The
Canadian Press)
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Context is everything, says associate law prof
Lisa Kerr, an associate law professor at Queen's University in
Kingston, Ont., agrees that context is everything.
"For example, you might see on a video that the complainant is
intoxicated and you might want to assess what you see on the
video with the evidence at trial about their level of
intoxication, right? Does it confirm it? Does it undercut it?"
Kerr said.
"You might assess the demeanour of the complainant in the
video. So, does the complainant appear to be calm? Are they
confident? Are they comfortable? Or do they appear to sort of
be distressed and ill at ease?"
Depending on what is recorded and how it's interpreted, a
consent video could benefit the prosecution or the defence.
"The video is not going to be determinative of whether there
was consent at the time for the specific acts," Kerr said. "The
video may be helpful for assessing the credibility of
witnesses, for sort of getting a sense of what was really going
on here."
Videos or app responses can give the illusion of navigating the
ambiguities of consent, but if they are only recorded after a
sexual encounter, Kerr said, they may be seen as an attempt to
make up for a lack of consent at the time of the sexual
activity.
__________________________________________________________
If you're in immediate danger or fear for your safety or that
of others around you, please call 911. For support in your
area, you can look for crisis lines and local services via the
Ending Violence Association of Canada database.
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