Making sense of some of the evidence in the Hockey Canada sexual
assault trial
IN DEPTHKatie Nicholson
| CBC News | Posted: June 2, 2025 8:00 AM | Last Updated: June
2
3 lawyers following London, Ont., proceedings weigh in on
evidence and exhibits so far
Image | Lawyers composite
Caption: Lawyers Sarah Leamon, Nick Cake and Sam Puchala, left
to right, aren’t involved in the world junior hockey sexual
assault trial unfolding in London, Ont., but have been closely
following it. The three spoke to CBC about some of the evidence
and exhibits, and how they may play into the outcome of the
case. (CBC)
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WARNING: This article references sexual assault and may affect
those who have experienced sexual violence or know someone
impacted by it.
The sexual assault trial of five players who were on Canada's
2018 world junior hockey team isn't just being followed closely
in sports circles and by advocates against gender-based
violence.
The legal community is also watching the proceedings, where
there have been many dramatic developments since they began in
late April in London, Ont.
The accused men — who all at one time had NHL careers — are Cal
Foote, Dillon Dubé, Alex Formenton, Carter Hart and Michael
McLeod. All have pleaded not guilty. The charges stem from
allegations by the complainant, E.M., and their time at a
London hotel in June 2018 following a Hockey Canada gala to
celebrate the hockey team's world title.
CBC News spoke to three lawyers who are not involved in the
case but are closely watching it.
"Every episode of this trial is jam packed with legal drama,"
said Nick Cake, a London-based criminal lawyer and former
Crown.
* Ex-teammate's testimony, police interviews mark
consequential week at Hockey Canada sex assault trial
Since the trial began, there has been a mistrial, followed four
weeks later by a second jury being discharged as the case
shifted to being heard by Superior Court Justice Maria
Carroccia alone. There have also been numerous evidentiary
applications and arguments in voir dires, or trials within a
trial.
"For me, it's really a love of the law. I think there are very
interesting issues that have arisen," said London-based
criminal defence lawyer Sam Puchala, who frequently slips into
the courtroom to watch the world junior proceedings.
"These are some of our colleagues in the defence bar who are
very notorious. They have very good techniques, and so it's
just been a pleasure to watch but also learn. So I'm learning
things every day in this trial as well."
Keeping on top of the proceedings from Vancouver, Sarah Leamon,
a defence lawyer and prosecutor, says, "It's a very unusual
trial given that we have five different co-accused all on
trial.
"Not only that, but there's also a great deal of interest given
the fact that this is a Hockey Canada issue," Leamon said.
(Hockey Canada hosted the London gala for the world junior team
in 2018, and has also faced criticism over eventually settling
a civil lawsuit by the complainant, whose identity is protected
under a standard publication ban. During this trial, defence
counsel for the accused have also noted Hockey Canada settled
the suit without communicating with or seeking the consent of
the players.)
Image | EM SHOES
Caption: Exhibit 51 in the trial is this picture of E.M.'s
shoes that was provided to Hockey Canada. Julianna Greenspan,
lawyer for Cal Foote, showed a pair of the same style of
high-heeled shoes during her cross-examination of E.M., handing
one to the jury to pass around. (Ontario Superior Court of
Justice)
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There has also been a preponderance of evidence.
The exhibits shown in court include surveillance footage from a
bar, photos of a hotel room, the phones of hockey players, text
messages and even a pair of stilettos.
In one memorable moment during cross-examination, Julianna
Greenspan, who represents Foote, hoisted a pair of stilettos
into the air. They were, she said, the same make as the ones
worn by E.M. Greenspan's questioning revealed the shoes — with
long, thin high heels — were difficult to put on, and the
lawyer used them as part of her arguments that E.M. never
actually was wearing them when she tried to leave the room.
Greenspan suggested it was because she never intended to leave.
A photo of E.M.'s shoes was also entered into evidence.
Here are more thoughts from Cake, Puchala and Leamon, focusing
on how some of the evidence/exhibits may play into the trial.
The '3 way' text
One of the first exhibits the Crown put forward was a
screenshot of a text from McLeod that timestamped 2:10 a.m. on
June 19, 2018. Sent after McLeod and E.M. left Jack's bar and
had sex in Room 209 at the Delta hotel (court heard the first
time they had sex was consensual), the text appears to invite
teammates to his room for a "3 way."
"Without any context, it's just one small piece of the puzzle,"
Cake says of that text. "I don't think that this particular
piece of evidence does a whole heck of a lot because all it
does is explain what we already know, that there were a lot of
men in that room with one woman and the allegations are that
something happened."
Leamon said it needs to be viewed more as narrative evidence —
which is evidence that helps tell the story.
"We know that this message was sent, and we know who sent it,
what time they sent it. But again, the context, as [Cake] has
pointed out, it needs to be filled in."
Image | EXHIBIT 15
Caption: Exhibit 15 is a group text from the early hours of
June 19, 2018. In it, Michael McLeod, one of the men now on
trial, appears to invite other members of the world junior
hockey team to his room for a '3 way.' (Ontario Superior Court
of Justice)
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Puchala said the message helps support the Crown's narrative of
how the night unfolded.
"It really is just something that leads to how it begins in a
concrete way so that you know there can't be any sort of denial
about this message being sent."
Puchala said the text inviting players to the room for a "3
way" doesn't really serve as evidence of consent or lack
thereof even if E.M. consented to the text being sent.
"That's not what her evidence is, that she wanted a three-way,
but this is really suggesting something that isn't even what
ends up happening in terms of the allegations."
The 'consent videos'
The trial also saw two videos of E.M. that were taken from
McLeod's phone.
One video is timestamped 3:25 a.m. In it, McLeod is heard
saying: "You're OK with this?" E.M. responds: "I'm OK."
The next video is timestamped 4:26 a.m. A male voice is heard
saying: "It was all consensual?" E.M. is heard replying: "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."
"I've had a lot of members of the public ask me, why is it that
we're even coming to a trial if there are videos that confirm
her consent?" Puchala said.
"I know lawyers have spoken up about this before, that just
because a video is recorded of you saying that you were fine
with something that happened, doesn't mean that you are
consenting at the time of the act."
* 'Consent videos' a focus of ex-world junior hockey players'
trial — but does such evidence stand up in court?
Puchala has watched the videos several times in court. One
thing she says Carroccia will have to take into account is
E.M.'s demeanour, particularly in the second video.
"Some could view that as very skittish, right? That she wants
to get out of there. So I think it really comes down to the
analysis," Puchala said. In the first video, E.M. appears to be
wiping her eyes. She has testified to weeping at times in the
night.
"This will be up to Justice Carroccia now that she is the trier
of fact. She is going to rewatch that video many, many times,
and that is going to be for her to determine in weighing the
complainant's credibility and reliability."
Leamon suggests the fact the videos even exist raises questions
useful to the Crown.
"Why would somebody feel the need to get a consent video after
they've engaged in what they believe to be consensual sexual
activity with an individual?"
Because, under Canadian law, consent has to occur at the time
of the sexual activity, Leamon said she would find defending
the videos problematic.
"We could make the argument, of course, that this is consent
and it was valid consent, and this is documenting the valid
consent that was obtained at the time. It just seems unusual."
Cake pushed back on Leamon's assessment.
"If you're wearing a world juniors championship ring, you're on
the verge of a 10-year, $12.5-million contract to play in the
professional hockey association that dominates North America,
and you've just engaged in sexual activity," Cake said.
'Isn't there a part of you that might think, 'You know what, I
want to protect myself from this exact situation or from a
potential civil lawsuit. And so I'm going to grab this video.'
That's potentially one of the ways that I see it."
Texting between McLeod and E.M.
McLeod found E.M. on Instagram a day after the alleged assaults
and the two started texting.
"I think text messages are always useful in terms of framing
the evidence that the parties give," Puchala said.
She sees several different ways the Crown and the defence teams
could interpret the exchange.
"When E.M. says, 'I was really drunk, didn't feel good about it
at all after,' I think the word 'after' is interesting because
of course not feeling good, or feeling shame or disgust even
after an otherwise consensual encounter does not amount of
sexual assault," Puchala said.
"When she says, 'But I'm not trying to get anyone in trouble,'
that could be true, even if there's a sexual assault. So, even
if she was not consenting, and lots of sexual assault victims
do not want accused persons to get into trouble."
Image | Exhibit 4 p4
Caption: This is part of Exhibit 4, showing a text exchange
between Michael McLeod and E.M. in which McLeod asks her to put
an end to the police investigation. The exchange was triggered
when Hockey Canada and police were alerted about the
allegations. (Ontario Superior Court of Justice)
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Puchala said the texts corroborate E.M.'s testimony that the
initial encounter with McLeod was consensual and "'it was
everyone else after that I wasn't expecting."
"So, again, what exactly was it that you were not expecting?"
Puchala said, adding that "needs to be a determination from
Justice Carroccia."
* What the jury didn't hear — and other things we can now
report — in world junior hockey sex assault trial
Puchala then zeroed in on E.M.'s line "just felt like I was
being made fun of and taken advantage of."
"Being 'made fun of' is not a crime," Puchala said. "But if
it's really being taken advantage of, 'I did not consent to
these other men coming into the room and engaging in the
behaviours that they did,' that's a whole other story."
Leamon zeroed in on the text in which E.M. tells McLeod she
"didn't feel good about it at all after."
"You can have buyer's remorse, to put it that way, after a
sexual encounter that was consensual at the time, but now you
look back and you think, 'Oh, I really wish I hadn't done
that,'" Leamon said.
"That does not vitiate the consent that was given at the time.
And this may also speak to the defence that I expect these
young men will likely mount."
WATCH | WARNING: This video contains graphic content: Crown
questions complainant E.M.:
Media Video | The National : E.M. grilled again at Hockey
Canada trial as cross-examination wraps
Caption: WARNING: Video contains disturbing details | The
Hockey Canada trial complainant, known only as E.M., was again
questioned by the defence over her drinking and her account of
her alleged sexual assaults, as the defence wrapped seven
gruelling days of cross-examination at the sexual assault trial
of five former junior hockey players.
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pages.
Leamon was also struck by the manner in which McLeod texted
E.M.
"He's being very, I think, you know, firm in instructing her to
straighten things out right now," Leamon said.
"When you look at what MacLeod's doing here, I think that he's
incredibly pushy," Cake said. "I mean, the texts started at
10:51 in the morning. And they go, sure, until 7:40.
"You can see that E.M. is like, 'Hey, I can't talk right now,
I'm at work. I'm sorry. I'm unavailable.' And he's like, 'Are
you going to fix this? Are you going to do it today? What are
you gonna say to the police?'" Cake said.
"I think that these text messages are a fantastic way to frame
what obviously the Crown would be pushing as the power dynamic
inside that hotel room."
Image | Exhibit 4 page 5
Caption: In this part of Exhibit 4, E.M. tells McLeod she was
fine going home with him but 'it was everyone else afterwards
that I wasn't expecting.' (Ontario Superior Court of Justice)
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"Mr. McLeod comes across as somebody who is sophisticated
enough to know he's in some trouble and he's trying to get
himself out of it," Leamon said of the text exchange. "And he
might just be papering this conversation with things that may
assist him later. So that's also a possibility."
* How trauma can affect memory and court testimony
Puchala said Carroccia will have to view these messages within
the context of all the other evidence.
"He [McLeod] ends it off with, 'I appreciate you telling the
truth. Thank you all the best.' So is it, as [Leamon] was
saying, to try to paper the file to make it look a certain way
or is it genuinely, 'Oh phew we agree … that it was a
mistake.'"
The players' group chat
On June 26, 2018, as they learned Hockey Canada was starting an
investigation, the players who were in Room 209 that night
began a group chat. The Crown has suggested there was
collusion, but McLeod tells other players in the group chat
that they need to tell the truth.
"When I read through this group chat — it's just so difficult
to determine what's going on here," Leamon said.
"Are these guys getting together to collude, to create a
narrative that assists them because they know they've done
something that's questionable, if not just wrong? Or is this a
situation where they're concerned about something that was
consensual and they felt it was consensual at the time, but now
they're looking back and they're a little bit worried?"
* What E.M. told the jury over 9 days of testimony in the
Hockey Canada sexual assault trial
Puchala said: "You have young men here that are sort of trying
to grapple with what's going on and it doesn't necessarily seem
like they really think that it's going to be sort of a criminal
affair.
"It's really, I think they're nervous about dealing with their
families and with Hockey Canada, so in these messages, there's
a lot a lot going on.
"It has to be analyzed," said Puchala, who noted Carroccia has
to think about these exchanges without having heard from many
of the players who were in the group chat.
"If there's uncertainty about something, like, it can look
bad," Puchala said, but pointed out the judge will apply a
standard of reasonable doubt that is very high.
"Any sort of question about that lack of certainty usually
favours the defence."
__________________________________________________________
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 Sexual Violence Association of Canada database.
Clarifications:
* This story has been updated to clarify the spelling of the
last name of Sarah Leamon, a Vancouver-based defence lawyer
and prosecutor. June 2, 2025 10:44 PM
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