Analyzing the Hockey Canada trial [2]

[Part 2 of 5] The Hockey Canada verdicts are final, but the story isn’t. Kristi Lee looks closely at the most talked-about evidence, how it was reflected in the written decision, and how that shaped public opinion. Thanks for your patience! In this episode: The flaws in the first police investigation - and why it didn't result in chargesMichael McLeod's instagram exchange with EM the day after the hotel room incidentThe "group chat" six days later that appears to show the hockey players trying to get their stories straightThe series of debacles that resulted in this jury trial switching to judge-aloneSurvivors JB and Kelly Favro return to share their perspectives about watching this case unfold not only as survivors — but also as massive hockey fans. *Additional content warning: Details of sexual acts. PLEASE NOTE: This series does not dispute the judge’s verdicts. Instead, it highlights a deeper truth: contradictions and inconsistencies existed on both sides, yet the accused players’ accounts were overwhelmingly accepted while the victim-complainant's was dismissed as “not credible or reliable.” Regardless of verdicts, our position is that this framing was both unnecessary and harmful — and its impact reaches far beyond the trial itself. More information and resources: LISTEN:Kelly Favro’s Story https://www.canadiantruecrime.ca/episodes/130 and The Trial of Jacob Hoggard https://www.canadiantruecrime.ca/episodes/122 (JB’s story)WATCH: Steve Dangle Show on Youtube - Team Canada World Junior Trial Verdict w/ Katie Strang https://www.youtube.com/watch?v=OfrH5cR7QY0&t=3894s, July 29 2025READ: The Hockey Canada trial could have been a reckoning. It was something else https://archive.ph/p0bcz - by Dan Robson and Katie Strang,The Athletic, July 24 2025If you or anyone you know is experiencing sexual violence and abuse, help is available atREES Community https://www.reescommunity.com/resources/ orEnding Violence Canada - Sexual Assault Centres, Crisis Lines and Support Services https://endingviolencecanada.org/sexual-assault-centres-crisis-lines-and-support-services/Beyond The Verdict:www.beyondtheverdict.ca https://www.beyondtheverdict.ca/ Look out for early, ad-free release on CTC premium feeds: available onAmazon Music https://music.amazon.com/podcasts/fbe63977-5737-4910-a067-1745b99fae36/canadian-true-crime (included with Prime),Apple Podcasts https://apple.co/3LZBCxa,Patreon https://www.patreon.com/canadiantruecrime andSupercast https://canadiantruecrime.supercast.com/. Full list of resources, information sources, credits and music credits: See the page for this episode at www.canadiantruecrime.ca/episodes https://www.canadiantruecrime.ca/episodes Hosted on Acast. See acast.com/privacy https://acast.com/privacy for more information.

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• 1:55Speaker 03

  An additional content warning. This episode includes details of sexual acts.

• 2:08Speaker 03

  Hi there, I hope you're well. This is part two of our Hockey Canada trial series. Thanks so much for your patience while I took some time to get it all together, because there is going to be a part three as well, although you won't have to wait anywhere near as long. Honestly, we could probably go on forever with this case because it's massive and overwhelming. It's the most complex sexual assault trial in Canadian history. One victim complainant, five accused hockey players, at least five more of their teammates who were witnesses, multiple police statements, Hockey Canada interviews, hours of testimony, wall-to-wall media coverage, and the fact that those not guilty verdicts

• 2:49Speaker 03

  came with an unprecedented 90-page written decision. Add to that the emotion around the case, the verdicts, and in response to our part one, and it's a lot to take in. So while I have gone through it all, I've narrowed it down to the key points that caught my attention, and we're going to continue unpacking those. So, part one was a high-level look at the trial from the perspective of what victim complainant EM might have been going through behind the scenes, with survivors JB and Kelly Favreau joining me to share rare insights based on their own lived experience. Later in this episode, they'll be back with their perspectives on a few other things

• 3:32Speaker 03

  like the public comments about EM during the trial. And then it's time to talk hockey, because like I mentioned last time, both JB and Kelly are huge hockey fans. I am not. Hockey was the main reason my husband wanted to move to Canada in the first place. And even though I've been to more NHL games than I can count, my brain is not wired to enjoy sports. But the fact that JB and Kelly are survivors who also loved the game brings another interesting dynamic to how they see this case. So that's later this episode. But first, I'll continue looking at the facts and evidence everyone was talking about, and how it showed up in the outcome of the trial.

• 4:16Speaker 03

  I've based all of this on the judge's written decision, which is publicly available, and trial reporting from multiple media outlets, including TSN, The Globe and Mail, The Toronto Star, and CBC News. There's a link in the show notes to see the full list of resources. I can't deny that I bring bias to this case. That's why I've taken the time to carefully choose my words and approach the whole thing with transparency, fairness, truth, and a whole lot of fact-checking. And I want to start today by laying out my position. A quick note before I start: if what you hear stirs up strong emotions, that's okay. Please feel free to unfollow and unsubscribe if you need to. I don't beg for listeners

• 5:01Speaker 03

  or respond to ultimatums. I'm not trying to persuade you of anything. I'm just a layperson pointing out what I see, and you can take it or leave it. It's almost a unanimously-held opinion that the not-guilty verdicts in this case were not unexpected. That's because a not-guilty verdict is a legal conclusion that means the Crown was not able to prove a crime occurred beyond a reasonable doubt. The bar is really high, as it should be, but it doesn't mean the accused did nothing wrong, the victim complainant lied, or that no harm occurred. The limits of our criminal justice system in handling sexual assault cases are already

• 5:44Speaker 03

  well-known, and this trial really took that to another level: a deeply flawed process, as some have described it, starting from the debacles that led to a mistrial and a second jury being dismissed, which were all centred around dodgy behaviour and comments from the defence lawyers as perceived by the jurors. The jurors were discarded, and it was a judge-alone trial from then on. We witnessed an eight-week display of aggressive defence tactics and blatant victim blaming that resulted in a series of explosive headlines. E.M. faced a brutal cross-examination that lasted for over a week, with defence lawyers

• 6:26Speaker 03

  lining up to try and discredit her version of events by using outdated rape myths about how a real or perfect victim might behave. The Supreme Court of Canada has consistently reaffirmed that rape myths and stereotypes threaten the rights of victim complainants and undermine the truth-seeking function of trials. Although men are victims of sexual assault too, rape myths have historically been used to shift the blame from accused men to women. She was asking for it by drinking, flirting, or dressing a certain way, or she gave mixed signals, and if she didn't fight back, yell “no,” or escape at the first opportunity, it can’t have been rape.

• 7:11Speaker 03

  She wanted it bad in the moment, but regretted it afterwards and lied about what really happened to save face. And if a woman has had sex before, she’s both more likely to have consented to sex again and also less credible. That’s a fun one, called “the twin myths.” And we have come to expect this from the defence in sexual assault trials. What we don’t expect is for a judge in a judge-alone trial to not only allow those myths to go unchallenged, but effectively validate them from the bench. Last episode, we noted that for critics of the trial outcome, it wasn’t so much the

• 7:54Speaker 03

  “not guilty” verdicts that many took issue with, it was the reasoning the judge provided in her lengthy written decision. It went far beyond the Crown not proving the charges beyond a reasonable doubt. As a summary of what we’re laying out in this series, the judge went several steps further, accepting the accused player’s version of events while condemning EM’s evidence as not credible or reliable. And despite there being a large number of inconsistencies and ambiguities on both sides, the judge overwhelmingly excused the player’s inconsistencies as the product of memory lapses, intoxication, concussions, or just the passage of time.

• 8:40Speaker 03

  Yet she found no excuses for EM's inconsistencies. The conclusion was that EM consented to everything, and it wasn't because she was intoxicated, intimidated, or fearful. EM was eviscerated from the bench, her account effectively dismissed as lies. And the headlines followed suit, focusing mainly on EM's contradictions, with very little scrutiny on the contradictions of the 10 or so hockey players that were in the hotel room with her that night. Hockey fans and supporters were already lashing out against EM in online spaces. But after the not guilty verdicts,

• 9:22Speaker 03

  the supporters used the judge's harsh comments about EM to justify their own angry insults, which got worse. They insist that nothing wrong happened in that hotel room. I mean, that was the judge's legal conclusion. They've been calling EM a whore, a slut who wanted it at the time but regretted it afterwards and lied. I've seen the incident referred to as a "consensual gangbang" that only happened because EM trapped and provoked those hockey players, and then tried to ruin their lives and careers with a false report of sexual assault. It's like the energy of cavemen who have been infected with obsessed Stan culture,

• 10:05Speaker 03

  clutching a club in one hand and a hockey jersey in the other, grunting about sluts and whores preventing their idols from getting back on the ice. But it's not just men saying these things, it's women as well. And the recent announcement that the Crown has elected not to appeal the verdicts has only served to revalidate those opinions and inspire a new wave of anger, with supporters of the players now saying that EM should be the one charged and sent to prison, and the Crown should also be charged with malicious prosecution for wasting taxpayers' money on a trial.

• 10:45Speaker 03

  They say the London Police got it right the first time, even though the lead detective himself admitted on the stand that it was a flawed investigation with a decision based on limited evidence. I've seen E M referred to as "the richest prostitute ever", that she's off laughing with the $3 million she scammed out of Hockey Canada. It defies logic to think that the organisation settled her lawsuit for anything close to the amount it sought in damages. The actual amount has never been disclosed, but the fact that Hockey Canada settled it so quickly and tried to hide it indicates they knew that something very wrong happened in that hotel room.

• 11:30Speaker 03

  So too is the fact that after the not guilty verdicts, NHL Commissioner Gary Bettman said in a statement that the allegations in this case, even if not determined to have been criminal, were very disturbing and the behaviour at issue was unacceptable. With all the vitriol directed at E M and the Crown, very few people are talking about the fact that beyond those not guilty verdicts, the legal conclusion, there is an important moral reality that we need to face. In that hotel room, there was an atmosphere ripe for exploitation, so intense that some players left within minutes,

• 12:12Speaker 03

  yet not one of them spoke up to say, "This isn't right." It's one woman, at one point, lying naked on a sheet on a hotel room floor, surrounded by up to 10 elite hockey players celebrating a championship win, some watching, some participating, one shoving a camera in her face for a consent video, twice, and no one is willing to step in and say, "Guys, what are we doing?" That's a problem. If any of those players were my son, I'd be just as horrified as if E M were my daughter. When the line between a consensual gangbang and group sexual assault is so blurred it ends up at trial,

• 12:57Speaker 03

  against a fan-based sporting culture that enables silence and stifles accountability, we should all be talking about it, not trying to shut it down. One thing that really stood out to me about the judge’s written decision was the acknowledgement of the Supreme Court of Canada’s position on rape myths and stereotypes. Justice Karasier wrote: “The Court cannot and will not engage in stereotypical reasoning.” But the reasoning that followed, over 90 pages, felt like a throwback to decades past when the focus was on scrutinising the woman rather than the accused man charged with sexually assaulting her.

• 13:41Speaker 03

  There was little scrutiny applied to the accused player’s actions and no serious examination of whether they took reasonable steps to ensure consent consistent with Canadian law. The judge’s words and her reasoning seemed to be at serious odds. How can you announce that you’re upholding something, then immediately appear to not uphold it? I assumed I must be missing something about that contradiction, so that’s something I wanted to get to the bottom of as I was going through all the materials to explain the most talked-about moments or evidence. But I’m not a lawyer, of course. I’m just a member of the public with a basic business degree

• 14:24Speaker 03

  trying to make sense of this case through the lens of the open court principle, a key pillar of our criminal justice system. Because justice must not only be done, it must also be seen to be done, i.e. by the public. It seems that despite the criminal justice system putting in work to try and eradicate myths and stereotype-based reasoning from sexual assault trials, this written judgement has brought them all back with a vengeance. It was like a giant neon billboard showing sexual assault survivors once again what they’re up against. A system where the accused has the right to silence and the presumption of innocence,

• 15:06Speaker 03

  while the complainant is reduced to a witness to her own alleged assault, with no choice but to take to the witness box to be picked apart and treated with contempt. Why would anyone put themselves through that? That is damaging to society far beyond this trial because trust in our criminal justice system is being eroded fast. And when that trust is gone, survivors will stop coming forward. And what does that say about the society we live in?

• 15:38Speaker 03

  So we're talking about it because information and education is how we move towards something better, so we don't end up here in the future with children we care about.

• 15:54Speaker 03

  So let me be very clear, I'm not arguing that a learned and experienced judge got the verdicts wrong. I'm also not arguing that the accused players should have been found guilty, sent to prison, or even that the crown should have appealed. That's not my place and besides, it's over now. I don't even have an opinion on whether the players should be allowed back in the NHL. Regardless of the legal verdict, most people can see that what happened in that hotel room was morally reprehensible. And in the world of professional hockey, their value and worth as players will be judged accordingly. That's the ultimate price they'll pay for their choices.

• 16:35Speaker 03

  And besides, there is no verdict or outcome that would have erased all the harm done at trial. To EM, and to the women, youths, sexual assault survivors and support networks around the country who were watching. This trial was a stark reminder of how poorly the justice system reflects the reality of sexual assault. But we're not here to relitigate it. We're looking at moments that shaped headlines and public opinion to show there were contradictions and inconsistencies on both sides, yet the way the case was reflected in the written decision shaped the story Canadians were told, making it seem like a simple, clear-cut, black-and-white case when it very much wasn't.

• 17:19Speaker 03

  And I think that's unnecessary and ultimately harmful. Because whatever the verdict, EM deserved the same benefit of the doubt as the five hockey players. And their actions and decisions deserve at least as much scrutinization as hers did. We're not trying to sway those who have already made up their minds. We're trying to shed light for those who want it, to bring back balance where it appears to be missing. Later, we'll also be responding to questions like: "How were those accused hockey players supposed to know the difference between actual consent and the appearance of consent?" The short of it is that if you actually care about your partner's comfort and mutual enjoyment,

• 18:04Speaker 03

  instead of just your own gratification, the line isn't blurry at all.

• 18:11Speaker 03

  With that said, let's get back up to speed with a very quick recap. We know this incident occurred in June of 2018 in London, Ontario. E M met Michael McLeod, both 20 years old, at a bar where he was celebrating with some of his teammates. The pair went back to his hotel room where they had consensual sex. What happened after that became the focus of the criminal charges.

• 18:39Speaker 03

  The Crown Prosecutions case was that up to 10 of MacLeod's teammates entered the hotel room without E M's knowledge or consent. They were all around 18 to 20 years old, and over about two hours, they allegedly made sexual suggestions and pressured her into sex acts. E M says she was intoxicated and complied out of intimidation and fear, not consent, although she acknowledges there may have been the appearance of consent. The defence's case, in a nutshell, is that E M asked MacLeod to invite his teammates into the hotel room. The players came with the primary goal of looking for food, and there happened to be a girl there offering to have sex with them.

• 19:24Speaker 03

  E M was portrayed as not only a willing participant, but the aggressor, that she effectively provoked them to participate in sex acts to the point where some of them effectively shrugged and decided, "Why not?" The judge accepted the accused's position, found E M's evidence to be not credible or reliable, and found all five hockey players not guilty of sexual assault.

• 19:51Speaker 03

  Last episode pointed to one of the main reasons why the London Police initially closed the case without charges. How the lead detective asked Michael McLeod why all those professional hockey players flocked to his hotel room. And how McLeod claimed he didn't know, but it might have been because he told them there was food there and a girl.

• 20:13Speaker 04

  Like a girl in the room who's doing sexual favors for people? I mean, I don't know how guys kept showing up because I don't remember like... Well, I know everybody has feelings and... She's like probably come, like come over like this, there's a girl... You think that was going on? To be honest, yes. Okay. You sending her those messages? No, like I just told the guys I was getting food and this girl, that's all I said to a few girls.

• 20:45Speaker 03

  The police took McLeod at his word, without knowing there was evidence that told a different story. The trial earlier this year revealed several significant gaps and flaws in the original investigation conducted in 2018 and 19 by the London Police. We're not going to go into detail about it all, but here's some examples. The lead detective formed a general assessment of the case before speaking to any of the players. The players lawyered up. Four months later, in October 2018, the lead detective emailed their lawyers to say he didn't have grounds to lay charges, but he still wanted in-person interviews.

• 21:29Speaker 03

  Over the next two months, the police interviewed Michael McLeod, Alex Formenton and Dylan Dubay at their respective lawyers' offices or as audio interviews. Before each interview, the lead detective told the players that at that point, he had no grounds to lay criminal charges.

• 21:49Speaker 03

  The Crown argued that the detective was not interested in getting to the truth, and didn't ask those players very many questions, but their police statements were admitted into evidence at trial. Callan Foote was only being treated as a witness at the time, and Carter Hart declined to speak to the police, which is of course his right. But there were an additional five or six men in that hotel room with them at various times that night, and London police failed to follow up with most, if not all of them, failed to pursue EM's allegations about specific incidents that happened in that hotel room, and didn't attempt to collect any possible physical evidence like bedding or clothing.

• 22:33Speaker 03

  In addition, the London police didn't seek a court order for any of the team's text messages, including the group chat that revealed Michael McLeod invited his 19 teammates into his hotel room for a three-way. Later, we'll also go into MacLeod's messages to EM after the incident, and a second group chat a week later, that suggests the accused players were trying to get their story straight. The London police failed to uncover these during that initial investigation as well. What they did rely on were those two so-called consent video clips that Michael McLeod's lawyer sent to them

• 23:14Speaker 03

  to determine that EM consented to everything that took place in that room, and that she didn't appear to be so intoxicated that she wasn't able to consent. It showed a limited understanding of Canadian law around consent, and failed to consider any other factors that might impact consent, including intimidation, coercion, or a power imbalance. The London police determined that no crime had occurred, and closed the investigation.

• 23:46Speaker 03

  Then, in 2022, the whole thing came to light when TSN reported that Hockey Canada had quietly settled EM's civil lawsuit. The public backlash resulted in the police reviewing their initial investigation and discovering the gaps. They reopened it. This time, the investigation was more thorough and led to charging five players with one count each of sexual assault. Michael McLeod and Alex Formenton for allegedly obtaining both oral sex and vaginal sex from EM without her consent. Carter Hart and Dylan Dubay for allegedly obtaining oral sex without EM's consent.

• 24:30Speaker 03

  And Dubay separately for allegedly slapping EM on the buttocks without her consent while she was performing a sex act on someone else. Callan Foot was charged for allegedly doing the splits with no pants on over EM's face, grazing it with his genitals without her consent. In addition to one count of sexual assault, Michael McLeod was also charged with being a party to the offence. That charge is in relation to the group chat message that McLeod sent to all his teammates. Who wants to be in a three-way quick 209 Mikey?

• 25:10Speaker 03

  The timestamp of that message was about 40 minutes after he left the bar to have consensual sex with EM. And Carter Hart was the first one to reply. I'm in. Five minutes later, McLeod sent a direct message to one of his teammates, Taylor Radish, who was not one of the accused. Come to my room if you want a gummer. Which apparently means oral sex.

• 25:38Speaker 03

  At trial, McLeod did not testify in his own defence, which is of course his right. His defence lawyer argued the whole thing was all E M's idea, that she told McLeod she was up for a wild night and asked him to invite his teammates. During E M's cross-examination, the defence put this to her. She responded: "No, I don't think that would have been something I would have said. I don't remember saying those words." E M's answers were not firm. This could be because having blanks or inconsistencies in memory is a common trauma response, thanks to the brain.

• 26:19Speaker 03

  And if E M were lying, or not credible or reliable, as the judge put it, why didn't she just outright deny saying this? There's no actual evidence that E M ever said she wanted a wild night or told McLeod to invite his teammates. You would think that this would be one of the first things McLeod would have told police in his statement. But the evidence shows the first time he goes on the record claiming it was all E M's idea was three years later, in 2022.

• 26:58Speaker 03

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• 28:29Speaker 03

  Now we get to Michael McLeod's Instagram conversation with E M. More digital evidence. You're going to hear computer-generated voices for some text message exchanges. This is a creative choice to keep the tone on both sides as neutral as possible and add some texture to the audio. Important context first. The incident happened in the early morning hours of June 19. E M testified that when she arrived home at about 5 a.m., she couldn't stop crying in the shower and her mother came in to check on her. It was her mother who called the London Police that morning while E M was asleep without consulting with her.

• 29:13Speaker 03

  The next morning, June 20, Michael McLeod tracked E M down on Instagram and asked her to phone him. She didn't want to, so he typed in his question. Just a reminder, both E M and McLeod were 20 years old at the time.

• 29:31Speaker 07

  Did you go to the police after Sunday?

• 29:34Speaker 03

  E M didn't reply. Two minutes passed. He sent a question mark, then another question mark. Then he typed.

• 29:44Speaker 07

  Hello?

• 29:46Speaker 03

  McLeod is getting impatient. By this point, twenty minutes had passed since his initial message. Em replies eight minutes later.

• 29:57Speaker 08

  I talked to my mom about it, and she called, I think, but I told her not to. I don't want anything back to come of it, so I told her to stop. I'm sorry, didn't mean for that to happen.

• 30:07Speaker 07

  You said you were having fun.

• 30:10Speaker 08

  I was really drunk, didn't feel good about it at all after, but I'm not trying to get anyone into trouble. I know I was in the wrong too.

• 30:17Speaker 03

  On cross-examination, Em testified that she blamed herself for being at the hotel in the first place. It's a very common trauma response. In the rest of that text message to McLeod, Em wrote:

• 30:31Speaker 08

  I was okay with going home with you. It was everyone else afterwards that I wasn't expecting. I just felt like I was being made fun of and taken advantage of.

• 30:41Speaker 03

  Given McLeod's later claim, you might expect him to respond with surprise, something like: But it was your idea, you asked me to invite them. But there's none of that. This is what he wrote in reply:

• 30:56Speaker 07

  I understand that you are embarrassed about what happened, but you need to talk to your mother right now and straighten things out with the police before this goes too far. This is a serious matter that she is misrepresenting and could have significant implications for a lot of people, including you. What can you do to make this go away?

• 31:12Speaker 08

  Yeah, I understand that. I'm not trying to push this any farther.

• 31:17Speaker 07

  Okay, so can you please figure out how to make this go away and contact the police?

• 31:21Speaker 08

  Okay.

• 31:22Speaker 07

  Can you call me once you've done that, please, and let me know what's happening? This needs to be done now before this goes any further, please.

• 31:29Speaker 03

  Fourteen minutes go by with no reply. Then McLeod asks:

• 31:34Speaker 07

  Have you done this?

• 31:36Speaker 03

  Still no reply. Over the next forty minutes or so, he posts two more question marks. Then Em replies:

• 31:45Speaker 08

  I'm at work, I'll deal with it as soon as I can.

• 31:49Speaker 07

  Okay, so you are putting an end to this, right?

• 31:51Speaker 08

  Yes.

• 31:53Speaker 07

  I appreciate that you're going to put an end to this. I know this must not be easy for you to have to call the police and say this was a mistake. Have you thought about what you're going to say to them?

• 32:02Speaker 03

  Em doesn't reply. Five hours later, McLeod asks:

• 32:08Speaker 07

  Hey, just wondering what's happening?

• 32:10Speaker 08

  Told them I'm not going to pursue it any further and that it was a mistake. You should be good now, so hopefully nothing more comes of it. Sorry again for the misunderstanding.

• 32:20Speaker 07

  I appreciate you telling the truth. Thank you all the best.

• 32:26Speaker 03

  At trial, Em testified she hadn't yet decided if she was going to report to the police herself. But in this conversation, she was just trying to get MacLeod to leave her alone by telling him what she thought he wanted to hear. Later that day, Em texted the lead detective to say she did not want charges laid. She simply wanted the incident documented and the men involved spoken to for accountability. Two days after that, she changed her mind and officially reported it to the police. That text message exchange on Instagram was the last communication between Em and Michael McLeod, and it really highlights the power imbalance at play.

• 33:12Speaker 03

  MacLeod is a celebrated athlete with status and institutional backing. He comes across as confident, entitled, savvy enough to know he might be in some kind of trouble that he needs to manage. MacLeod takes up space and Em shrinks herself down. She's apologetic, fawning in her replies, trying to appease him to calm the situation and not cause any trouble. Em shows a similar hesitation and uncertainty in her replies that we also see from her at trial. Hesitation the judge seized on as proof she was not credible or reliable.

• 33:52Speaker 03

  And MacLeod comes off as bossy and condescending as he repeatedly pressures Em to take action that benefits him. He hints at consequences if she doesn't. He's relentless and doesn't let up, even as she expresses vulnerability and hurt. He shows no genuine empathy or care. He just offers some surface-level gestures with his focus squarely on damage control.

• 34:19Speaker 03

  It's clear she's a nobody to him. And the power dynamic is also clear. If this is how EM sounded in a one-on-one exchange with one celebrated hockey player, imagine what it must have felt like in room 209 as more of his teammates walked in until she was outnumbered 10 to 1.

• 34:42Speaker 03

  There's something else that stuck out to me about this text message exchange. This was the first communication between EM and Michael McLeod after she left the hotel room, and it was McLeod who initiated it. The judge's written decision notes that he was shown this text exchange when he later spoke to the police, and he told the detective he received a call from Hockey Canada informing him that EM's mother had made a complaint. So he searched for her on Instagram and messaged her. He did not ask her about the complaint to Hockey Canada. He didn't check in and ask if she was okay. The first thing Michael McLeod asked is if she went to the police.

• 35:25Speaker 03

  That begs the question, why were the police top of mind for him? So let's weigh all that evidence against the judge's written decision. The court saw timestamped proof that McLeod invited his teammates into the hotel room, offered a threesome and oral sex on EM's behalf, left those details out of his police interview, and later tried to reframe the whole thing as her idea. He was also messaging EM the following day in a way that clearly showed concern about damage control. That appears to be a pattern of deception. By contrast, EM was hesitant on the stand when she denied that she asked McLeod to invite his teammates.

• 36:10Speaker 03

  The Instagram exchange the next day showed EM being firm. She agreed to go to the room with McLeod, not anyone else. McLeod didn't express surprise or push back, which directly contradicts his later claim that it was all her idea anyway. Add that to his police statement, where he claimed the men came for food and never mentioned the group chat where he invited them, and you can see a consistent effort to minimize and downplay his role. And this is all consistent with EM's complaint that MacLeod invited his teammates into room 209 without her knowledge or consent. It speaks to her credibility.

• 36:53Speaker 03

  Yet in Justice Karasia's decision, none of this weighed against his credibility. There's no examination of his inconsistencies and deception. The key focus is, quote, "Again, the evidence of EM is that she does not remember whether she said anything about inviting others into room 209. When asked in cross-examination if she made the suggestion that Mr. MacLeod invite his teammates into the room, she said, 'I don't think that's something I would have said.'" Justice Karasia then concludes, "I am not satisfied based on the evidence that Mr. MacLeod invited men into room 209 without the knowledge of EM for the purpose of committing

• 37:38Speaker 03

  a sexual assault." It seems like EM's hesitation carried far more weight than MacLeod's documented dishonesty and minimization. The imbalance is stark. And this conclusion was part of the judge's reasoning for finding MacLeod not guilty on the charge of being a party to the offence of sexual assault. The written judgment notes that the Crown also has to establish beyond a reasonable doubt that MacLeod did something to help a person commit sexual assault with the required intent. And of course, that a sexual assault was actually committed.

• 38:19Speaker 03

  We'll get to that in part three. Michael McLeod's three-way invitation wasn't the only group chat evidence at trial. There was another group chat almost a week after the incident. But first, some context. It was established that in the first couple of days after the incident, EM reported to the London Police and her mother's boyfriend also told someone he knew at Hockey Canada. And two investigations were initiated. The Police with a criminal investigation and Hockey Canada looking into whether the

• 39:03Speaker 03

  code of conduct was violated. More on that later as well. Tyler Steenbergen is one of the hockey players who was in the hotel room during a part of the incident but was not accused of wrongdoing. He was subpoenaed by the Crown to testify. Steenbergen testified that six days after the incident, he was added to a new group chat with the players who either participated in sexual acts in room 209 or witnessed them. He told the court that by this point, his teammates had become aware that Hockey Canada, at least, was investigating what happened in that hotel room. But because Steenbergen was in training that night, he didn't see the group chat

• 39:48Speaker 03

  or read any of the messages until after it ended. He later provided the chat log to the police. Many of them were read out at trial. Steenbergen testified the theme of the group chat was a feeling of nervousness that Hockey Canada was conducting an investigation, although he said he also knew that EM consented based on what happened in the room. But elsewhere in his testimony, Steenbergen also estimated he was only inside that room for 10 to 15 minutes, right in the middle of the incident that spanned about two hours.

• 40:28Speaker 03

  The receipts show that this group chat was created by Dylan Dubay, who was the captain of their 2018 World Junior Team and one of the five men found not guilty of sexual assault at trial. You'll also hear comments from Michael McLeod, Carter Hart and Callan Foot. Alex Formenton was included, but he didn't comment. And as a reminder, all of them were found not guilty. In addition, you'll hear comments from three other players who were essentially bystanders in the hotel room, along with Tyler Steenbergen, and not accused of wrongdoing. They are Jake Bean, Brett Houghton and Maxime Comtois.

• 41:12Speaker 03

  The Crown's argument was that the following chat log is evidence that the hockey players were strategizing to get their stories straight. And because this conversation happened just six days after the incident, it may have influenced the various versions of events they eventually gave to Hockey Canada and the London Police. The first message was sent by Dylan Dubay just before 8pm, and the group chat continued until after midnight. Just a reminder, all of these hockey players were 18 to 20 years old at the time.

• 41:48Speaker 09

  Dylan Dubay: "Hey, boys, add the rest who aren't in here, so I can say something. There are no criminal charges, it's Hockey Canada Code of Conduct, and they are investigating on what happened that night, so it won't happen again."

• 42:03Speaker 10

  Jake Bean: "Could we get in trouble for it, or no?"

• 42:07Speaker 09

  Dubay: "I don't think so."

• 42:10Speaker 11

  Michael McLeod: "We all need to say the same thing if we get interviewed, can't have different stories or make anything up."

• 42:17Speaker 10

  Bean: "No, boys, like, we don't need to make anything up. No one did anything wrong. We went to that room to eat, the girl came, she wanted to have sex with all of us, no one did. She gave a few guys head, and then we got out of the room when things got too crazy, and Mikey literally has a video giving her consent."

• 42:36Speaker 03

  A few things about Jake Bean: He was only in Room 209 for the same 10 to 15 minutes as Tyler Steenburgen, and they left together. Neither of them were accused of a crime. The Crown argued that message was evidence of Jake Bean taking the first stab at workshopping the narrative, starting with the suggestion that the hockey players went to the room for the food, then EM showed up, which, at the very least, is not the order of events. And Bean's comment.

• 43:08Speaker 10

  She wanted to have sex with all of us. No one did. She gave a few guys head.

• 43:14Speaker 03

  That is interesting, given it was established that both McLeod and Fomenton also had vaginal sex with EM during that two-hour window. And the implication that all that happened was that EM gave a few guys oral sex seems to be an attempt to downplay it. But more than that, it's also impossible for Jake Bean to have had a personal memory of these things, since he didn't arrive at room 209 until halfway through the incident. And he can't conclude that no one did anything wrong because he was only there for ten to fifteen minutes. So why did he say these things? And where did he get this information from? The judge pushed back on the Crown's argument,

• 43:58Speaker 03

  emphasizing that this message could in fact reflect Bean's genuine belief of what happened, even if he didn't personally witness the events. In addition, the judge stated that the court can't interpret any of the messages in this group chat unless the actual people who sent them testified about their intent. And the Crown did not call Jake Bean to testify about his intent. Therefore, his message can't be interpreted. Can't argue with that. The chat continues in response to Bean's comment with Dylan Dubay again. Then bystander Brett Houghton enters the chat.

• 44:39Speaker 09

  Dubay: Okay, yeah fuck, we are fine. The boys who did things got consent. So just tell them that and it's fine.

• 44:47Speaker 12

  Brett Houghton: All we have to say is someone brought the girl back to the room. We were all in there ordering food and then this girl started begging from everyone to have sex with her. Nobody would do it. But then as time went on, she gave three guys head. Once things started to get out of hand, we all left and got her out.

• 45:07Speaker 03

  A few minutes go by with no replies.

• 45:11Speaker 12

  Yeah or no?

• 45:13Speaker 03

  These two messages together read less like Howden's personal recollection of what happened, and more like a proposal, as if he's waiting for the others to sign off on the story. And once again, the narrative that no one would have sex with EM, and all that happened was she gave three guys oral sex. Brett Howden was one of the first couple of teammates to enter room 209 after McLeod sent the three-way invitation, and he left after about forty-five minutes, give or take. And unlike Jake Bean, Howden did testify. He said his intent behind sending that message was to be honest about the situation, which is what the message showed.

• 45:57Speaker 03

  The Crown argued that Howden's message added another layer to the narrative taking shape in the group chat. First, that they were only there for the food and EM was the aggressor, and now she was begging them all for sex. And this was no accident, according to the Crown, who described this conversation as a "group work project", a coordinated effort to develop a shared narrative and make sure all participants and bystanders were exposed to it so they could all be on the same page. The judge pushed back. She questioned why the Crown would infer that Brett Howden was crafting a false narrative when he wasn't accused of wrongdoing. The chat continues.

• 46:42Speaker 09

  Yeah, or no? Dubé. Yeah, that's all that happened, so we are good. Everyone treated her fine, because she gave those guys consent, so it's all good.

• 46:53Speaker 12

  Howden. Fuck, Mikey has the video of her consenting. Like, we just showed that, and we're fine. Nobody forced her to do anything. If anything, we should put allegations on her. Fuck.

• 47:04Speaker 11

  McLeod. I did have sex with her before everyone came in. You guys know that part, right?

• 47:09Speaker 12

  Howden. She's the one who got naked and started begging everyone.

• 47:14Speaker 11

  McLeod. Yeah, what should I say, if they asked why I took the videos, though?

• 47:19Speaker 10

  Bean. You took the videos because you wanted to make sure nothing bad would happen, and cover yourself.

• 47:24Speaker 11

  McLeod. Yeah, okay. We gotta keep each other in the loop here. If someone hears something, gotta let everyone know.

• 47:31Speaker 13

  Maxime Comtois. They can't go through your phone unless police is involved in it. That's not the case.

• 47:38Speaker 03

  There's a couple of moments where no one says anything. In cross-examination, Brett Houghton was asked what he meant by saying,

• 47:46Speaker 12

  If anything, we should put allegations on her.

• 47:49Speaker 03

  He testified that he was angry when he wrote those messages because he felt like EM was the one that had initiated everything and she was the one that put them all in that situation. The Crown made an interesting point about this. If EM was naked and repeatedly begging everyone for sex to the point where it made them angry, why didn't Michael McLeod just record her begging as proof of her enthusiastic consent, even if it was just audio? If she really was so eager, it seems there was plenty of opportunity. And it's not like filming a consent video was an afterthought for MacLeod. He recorded one halfway through the incident and another at the end.

• 48:34Speaker 03

  Canadian law says a video can't prove consent, but it does make you wonder why the only things recorded that night were on the men's terms. After a few moments of inactivity, the chat continues with comments from Callan Foot and Carter Hart.

• 48:53Speaker 09

  Dubé: Let's not make her sound too crazy because if she gets wind of this, and then she can get even more angry, and we don't need that, so just be good about it. But the truth with it?

• 49:04Speaker 13

  Comptoir: The truth is, we didn't do anything stupid. We had her consent. We didn't force her to do anything.

• 49:11Speaker 12

  Callan Foot: Isn't it only for Hockey Canada and how they can prevent something like this from happening again? No police are involved because Hockey Canada hired an investigator privately, right?

• 49:22Speaker 09

  Dubé: I believe so.

• 49:25Speaker 12

  Foot: Okay, then it's private and no police are involved, so we are all perfectly fine.

• 49:31Speaker 10

  Carter Hart: Honestly, boys, nobody did anything wrong. Like, we got consent to anything that she did. She was the one begging for guys to bang her.

• 49:42Speaker 03

  Carter Hart was the only one of the five accused hockey players who testified in his own defence. He testified he was at training and came to it later, but as he skimmed through the messages, he realised that Hockey Canada and possibly the police were conducting investigations. Carter Hart agreed he was worried about the prospect of criminal charges, but only because his team was being accused of sexual wrongdoing, not because he had concerns about whether EM actually consented to the sexual activity. The chat then turns to the fact that some players had started receiving contact from a Hockey Canada representative.

• 50:24Speaker 13

  Hart, what did you say to him? What do I tell him? Comptoir, he won't ask you anything about what happened.

• 50:33Speaker 03

  It's by this point after midnight. Carter Hart testified that he was concerned about what to tell the Hockey Canada rep because it was against the rules to have a girl in the hotel room and they were also out late partying. Hart agreed with the crown that the chat showed, quote, "Everyone trying to get on the same page about what they're going to say about what happened in that room." But they were all telling the truth, he said, so the chat showed them agreeing to tell the truth because they had nothing to hide. In the last part of this group chat, Brett Howden noted that Hockey Canada wanted the players to come to Toronto for an in-person interview. He said it was a joke.

• 51:18Speaker 03

  Comptoir said he would refuse to go to Toronto for that shit. The chat continues.

• 51:23Speaker 10

  Bean, yeah man, that's ridiculous. Like, this is nothing and we can't be making this big of a deal out of it.

• 51:29Speaker 13

  Hart, should we get lawyers to talk for us?

• 51:33Speaker 10

  Bean, everyone stop talking in here and talk to your agents about this.

• 51:37Speaker 03

  And that's the end of the group chat. Neither Carter Hart nor his lawyer spoke to anyone, not the police and not the Hockey Canada investigator.

• 51:49Speaker 03

  The Crown's case was that when considering this group chat in totality, it showed hockey players who knew something very wrong happened in that hotel room. They were actively engaged in getting their story straight, and that some players were likely tainted by what was said by others. Put another way, because this group chat happened well before any of the players spoke to either the police or Hockey Canada, it may have influenced the version of events they eventually provided, whether they knew it or not. The Crown also tried to take that argument further, that the group chat suggested a calculated effort to pad the record with planted narratives,

• 52:34Speaker 03

  that the players only went to the hotel room looking for food, that E M was aggressively begging everyone for sex, and that ultimately she consented to everything. And that there was a level of awareness, as this chat continued, that it could end up with the police. Justice Karasir did not accept this argument, and there was a lot of sparring with the Crown, as reported by Jacques Galant for the Toronto Star. The judge told the Crown that inferences have to be drawn from facts, not speculation. And in reference to the Crown's inference that the players going to room 209 for the food was a false narrative,

• 53:17Speaker 03

  the judge questioned, "What facts would prove this to be a lie?" It obviously was established that five months after this group chat, Michael McLeod was deceptive with the police and tried to hide the fact that he invited all 19 of his teammates for a three-way. But I think the judge's point about the facts is that McLeod did order food to the hotel room, and the food is a possible reason why his teammates came to the room. So how could the Crown argue that it was a planted false narrative? And of course, in reference to Brett Houghton and Jake Bean, the only players who mentioned the food in the group chat,

• 54:00Speaker 03

  Justice Karasir questioned what motive they would have to help with a planted narrative when they were not accused of doing anything wrong. The question was left hanging, but the answer seems pretty obvious: loyalty. We're talking about the world of elite team sports here, and Howden and Bean may have just been bystanders, but they watched as something considered morally reprehensible unfolded and didn't intervene. The Crown urged the judge to consider the group chat messages as a whole, instead of looking at individual messages. But by this stage, it seemed the Crown was facing a wall at every turn.

• 54:42Speaker 03

  When the sender of a message didn't testify about their intent, his message was hearsay and couldn't be interpreted. When the sender did testify but wasn't accused of a crime, he had no reason to lie. And when the sender did testify and was accused of a crime, that's Carter Hart, his testimony that they were all agreeing to tell the truth was taken at face value, even though he also admitted that everyone was trying to get on the same page about what they were going to say happened in that hotel room. If this had been a jury trial, the evidence might have carried more weight than it did with a judge.

• 55:23Speaker 03

  The rules of evidence would be the same, but a jury is a group of peers, ordinary people viewing evidence through the lens of common sense. With evidence like the group chat, a jury might have raised questions about why there was so much focus on getting their story straight, and why, if they were agreeing to tell the truth, they would also need to get on the same page. And this was supposed to be a jury trial. It started out that way, but ended in a series of debacles, not because of anything related to the validity of the Crown's case or the evidence, but because two separate juries

• 56:02Speaker 03

  complained about the behaviour of certain defence lawyers, more on that in a second. So in the end, the judge decided to go it alone. This means the verdict needs to come with an explanation, and the evidence has to be filtered strictly through the rules of law.

• 56:25Speaker 03

  Crown prosecutor Meghan Cunningham, described as a veteran prosecutor, asked to take a scheduled break early, saying she needed to readjust because it was clear the argument she was trying to make was not persuasive for the judge. After the break, the Crown stated: "I'm just going to leave you with the Crown's submission that the group chat is evidence of the players getting their stories straight, and that should cause Your Honour to have concerns about the details discussed in that group chat."

• 56:58Speaker 03

  Justice Karasir disagreed with the Crown's characterisation of this group chat. Her conclusion from the written decision: "While the men who participated in the group chat were recounting their observations of what happened in Room 209, there is no basis upon which I can conclude that they did so for the purpose of concocting a false narrative of the events. At that point in time, they were concerned about an investigation by Hockey Canada. According to the text sent by Mr MacLeod, there was no ongoing police investigation because the complainant told the police that she did not want to pursue it, and it was a mistake."

• 57:43Speaker 03

  So that's the judge's legal conclusion related to this group chat. But in the next episode, we'll get into what the hockey players say they saw in Room 209 during that two hours, and how the Crown's argument played out. In clinging to the idea that they came to the room for the food, and EM was the one who instigated everything, it seems the hockey players started blending details and mixing up the order of events they claimed to have witnessed. They even claimed to have seen things that were impossible, directly contradicted by digital evidence. Just one example: One player claimed that when he entered Room 209,

• 58:27Speaker 03

  he saw EM surrounded by takeout boxes. But the surveillance footage shows the food didn't arrive until about 10 minutes after he did. It wasn't just a hazy memory, it was a physical impossibility.

• 58:42Speaker 03

  And that brings us back to the fact that this trial was originally meant to be decided by a jury, but switched to judge alone after two high-profile debacles that both involved the conduct of Alex Formenton's defence lawyers. That's coming up next.

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• 1:00:56Speaker 03

  Welcome back and thanks for listening. So let's unpack the incidents that resulted in a mistrial, the dismissal of a second jury and the judge deciding to go it alone. The five accused hockey players had their own defence teams, each with the same goal of achieving not guilty verdicts for the clients they represent. But both of these incidents involved the lawyers representing Alex Formenton, Daniel Brown and Hilary Dudding. The first jury was dismissed on the first day of the trial after a juror accused defence lawyer Dudding of approaching them in a food court during a lunch break and commenting that there was a lot of head nodding

• 1:01:40Speaker 03

  during the Crown Prosecution's opening remarks. Dudding said the claim was entirely false, that she turned around in line, saw the juror and reflexively said something along the lines of "sorry, that's awkward."

• 1:01:56Speaker 03

  The other four defence teams quickly pushed for a mistrial, arguing that this jury could now be biased against the defence as a result of this complaint. Justice Karasier declared a mistrial. A second jury was impaneled. These new jurors lasted for a couple of weeks, through EM's testimony and seven days of cross-examination with five separate defence teams doing their best to defend their clients by repeatedly trying to discredit EM with outdated rape myths about how a real or perfect victim would behave. Then, just after EM's cross-examination finished, a second incident happened with the new jury.

• 1:02:42Speaker 03

  One of these new jurors wrote a note to the judge with a complaint. As the jury entered the courtroom each day, they saw Alex Formenton's lawyers, Dudding and Brown, whispering and laughing at them. This juror felt like the defence lawyers were mocking their appearance and described it as unprofessional and unacceptable behaviour. Dudding and Brown said it was a misunderstanding and apologised. But again, the other four defence teams took the opportunity to push for another mistrial, or for a judge-alone trial. Same reasons that the new jury might also be prejudiced against the defence

• 1:03:24Speaker 03

  and that it might hold the lawyers back from defending their clients too zealously or forcefully, since the jury could take it the wrong way. But the thing was, the jury had already seen the most zealous of the defence, which was the seven days of aggressive cross-examination of EM. After both complaints, the Crown had urged the judge to proceed with the impaneled juries, but cautioned them appropriately about bias. Because if another mistrial was declared and a third jury was impaneled, EM would have to testify and be cross-examined all over again, and the Crown wanted to avoid that.

• 1:04:09Speaker 03

  Justice Karasir again sided with the defence. She dismissed the second jury and proceeded with a judge-alone trial. This means the judge interprets the law and assesses the facts, bound by the strict rules of evidence. In a media statement in response to this, Brown and Dudding said this was a "regrettable development", as their client, Alexander Formenton, quote, "very much wanted to be judged by a jury of his peers." This series of events resulted in many public questions. It seemed so easy to rattle a juror, argue bias and have an entire jury wiped out. And this happened twice.

• 1:04:53Speaker 03

  The second time after the jury had just witnessed a cross-examination so intensely aggressive that there was widespread criticism, media headlines, public outrage on social media and daily protests outside the courthouse. Is this what the defence intended all along? To go through that cross-examination, then try to do away with that jury, knowing the crowd would not want to repeat it with a third? On the other hand, the accused were always free to choose a judge-alone trial if that's what they really wanted, and they didn't. But a jury trial gives the appearance of openness. Choosing a judge-alone trial can look less transparent.

• 1:05:38Speaker 03

  This is a strategic choice, and it was referenced in a statement by Anova, a sexual assault centre in London, Ontario. The centre noted that: "Juries are more likely to be swayed by appeals to emotion and myth, whereas judges are more likely to understand technicalities and arguments of legal interpretation." Their statement further notes that in the Hockey Canada case, the defence leaned heavily on rape myths, casting EM as a liar, a cheater and a slut. And in years past, these kind of arguments worked well because a jury is more likely to be swayed by emotion and rape myths about how a perfect or real victim would behave.

• 1:06:23Speaker 03

  But in today's climate, where there's more public knowledge about trauma and how these rape myths have been debunked, defence tactics that rely on them are less likely to succeed with a jury." Quoting from Anova's statement:

• 1:06:39Speaker 03

  This jury in particular appeared to grow tired of the unnecessarily long cross-examination. Now that the case has moved to a judge-only trial, that's no longer a concern. The standard to convict for sexual assault is beyond a reasonable doubt, the technicality of which a judge would be far more familiar with than your average citizen. The statement ends. "The judge, a former defence attorney herself, also could have made different choices. We wonder what else could and should have been done from the bench to prevent this outcome." End quote.

• 1:07:31Speaker 03

  We'll continue going through key moments and the verdict in part three, but my special guests JB and Kelly had a lot of thoughts and insights to share as sexual assault survivors who have been through a trial. As a quick reminder, JB is the Ottawa woman who testified against disgraced Canadian musician Jacob Hoggard from the band Headley. A jury found Hoggard guilty on her charges but not guilty in relation to the other, younger complainant known as MB. And then there's Kelly Favreau, who survived her own harrowing two-hour sexual assault and a trial, and then helped rewrite Canada's publication ban laws.

• 1:08:12Speaker 03

  Together, the three of us have co-founded BeyondTheVerdict.ca, a grassroots advocacy group that supports sexual assault survivors by challenging harmful misinformation in the courtroom and pushing for trauma-informed justice. And that brings us to the concept of being trauma-informed, and how it might play out differently in a judge-alone trial versus a jury trial, a key thing that JB and Kelly kept circling back to when we recorded our conversations. Then, we'll talk about hockey, or they will. Please be aware that some of our conversations were recorded before the verdict was announced. So you'll be hearing their opinions about how they saw the trial playing out.

• 1:08:57Speaker 03

  As a reminder, all five accused hockey players were found not guilty on all charges. But first, what is trauma-informed? Here's Kelly and then JB.

• 1:09:09Speaker 14

  Trauma-informed to me means education and training on how trauma can affect memory and emotion and survival responses. And it means not punishing a survivor for freezing instead of fighting, or for crying too much, or for not crying at all. And it needs to recognize that memory can come out in fragments of the event and not necessarily be in chronological order. And a trauma-informed court would train judges and lawyers to stop using outdated rape myths. And it would challenge and change how survivors are questioned. It would give safer ways to testify, and it would treat people like humans and not evidence. And none of this would ever impede the accused getting a fair trial,

• 1:09:53Speaker 14

  but it's definitely going to make the survivor a lot more comfortable when reliving the worst moments of their life. Because if this case, like combined with your case, JB, like if your case and EM's case isn't a turning point, what is this for? Like if not now, when? Who is going to be next? And what will be the point where the courts recognize that enough is enough? Because too many survivors are traumatized for decades after because of rape myths and stereotypes. You know, Canada has made some progress. Like there's mandatory training for federally appointed judges with sexual assault law.

• 1:10:37Speaker 14

  But I mean, like it came years after public pressure and like advocacy campaigns. And it matters, but like it's not enough. Because the training isn't trauma-informed if this shit's still happening. And it certainly isn't consistent across provinces or courtrooms. And it does nothing to really stop defense lawyers. From relying on outdated and misogynistic stereotypes like the idea of a woman who cries and doesn't want to hear a tape must be overreacting or must be traumatic, right? Which is insane to me. So like, we, we need some sort of real reform and we need a change in how testimony is taken. And we certainly, like, number one priority, we need to change

• 1:11:19Speaker 14

  how survivors are being cross-examined right now because it's cruel. And we need clear limits on the kind of character attacks and rape myths that are allowed to masquerade as a defense strategy. And judges need to step up and invoke that trauma-informed training and actually do something.

• 1:11:37Speaker 15

  Obviously, in this case, it was a judge and typically, I mean, originally, it was a jury, who wouldn't have been trauma-informed. The, like, the justice will charge the jury and they give you specific rape myths and things that you're not supposed to use. But that's not like an education. That's just like a couple of sentences on, oh, by the way, like, don't mention this or don't think of this. Um, like, I think in my trial, my, my judge would have given the same verdict for me. And I think the other complaint, MB, I think she would have also got a guilty verdict if it was the judge alone, who was obviously trauma-informed and empathetic. You don't have to be a robot to be a judge.

• 1:12:18Speaker 15

  If you see someone on the stand crying for, in EM's case, nine days, and you, and you don't even think to, you don't think of them as a human being. I, I didn't have much hope for this verdict the second that it switched from a jury to a judge, based on the way that the judge spoke to her during her cross-examination. She was consistently telling her, um, just answer the questions. Don't give your opinion. Don't make side comments because she, EM said, and this was also in the justice's verdict, EM said, this is my chance to stand up for myself. And the judge specifically quoted that in her verdict, saying that this is a reason that she wasn't telling the truth. And I'm sorry, but when, when else are you supposed to stand up for yourself? You get no other option. You're

• 1:13:03Speaker 15

  not allowed to speak until, when charges are laid, you're not allowed to talk to anyone because you don't want to ruin the trial. And then you go to the trial and you're only allowed to answer the questions that they ask you. And then a verdict is given, and it's a publication ban, you can't speak about it. Like, when are you supposed to stick up for yourself if it's not while you're on the stand, being berated?

• 1:13:24Speaker 14

  The only time you can stand up for yourself really is if you get that guilty verdict and you get to read your victim impact statement. That's it.

• 1:13:32Speaker 16

  There's so many parts to a trial where the accused is so much more protected than the victim and their rights are more important than mine. And anyone who's on the stand, the only person whose rights matter are the accused, in my opinion, because the things that I wasn't allowed to say, I was shocked because I was like, okay, well, I'm in court, I want to tell the truth. And this is the truth, but I'm not allowed to say it. And you can't say certain words. I think in our trial, we couldn't say grooming. We couldn't talk about the underage aspect. And it's hard because I, you know, someone's coming at you in the harshest way you've ever been spoken to.

• 1:14:11Speaker 16

  And you can't even rebut what they're saying because you're really only supposed to give like yes or no answers. And I read EM's case and I see like the defense attorneys and the judge scolding her for telling the truth and giving an answer that she thinks is appropriate. And it's just, it just really shows how the defense is more protected than the victim in every aspect of the trial.

• 1:14:39Speaker 03

  JB, as someone who also went through a high-profile sexual assault trial involving a high-profile man, I know that you watched the Hockey Canada trial closely and the public reaction, good and bad. And it kind of made you reflect a lot on your own experience.

• 1:14:57Speaker 16

  So when I saw all of the supporters for EM, I was so, so, so happy for her. And a part of me was also like, I wish I had that. But so happy that she had that, like listening to the things that they were yelling at the hockey players. So funny, first of all, a lot of them are very witty. I commend them, but it was so nice to see all these people rallying for her in a high-profile case. I didn't have that. Before the trial, he had tons of supporters and they made T-shirts and signs and harassed me online and said horrible things. They had this group on Facebook that would just write the craziest shit you would ever hear.

• 1:15:38Speaker 16

  And that's what was so hurtful, that it was women and a lot of these women had daughters that they would bring to the concerts who were wearing T-shirts that said like, I stand with Hedley. They called themselves like the Hedley Army. It's so stupid now, looking back, but at the time, like, you're going against all of these, like, thousands. And some of them found out my actual name. Um, and they would message me and tell me they were gonna expose my real name. Some of them would say they would kill, they're gonna kill me. Um, that I should be shot for lying, like, just like horrible, horrible, horrible things that I'm sure the EM has read. And now, for me, back when it happened to me, I would, I would read all the comments.

• 1:16:21Speaker 16

  And seeing anyone who supported me, I didn't feel alone. So now it's nice to see the comments, like, switching. Because no one was saying anything nice about me. It was, they were, they all were like, okay, well, we're gonna wait for a arrest. And then an arrest came. Well, we're gonna wait for the trial. We're gonna wait for a conviction. The conviction came. They still didn't believe it. We're gonna wait for an appeal. The appeal came. They still didn't believe it. So there's nothing you can do to force people to believe you, but there's a part of you that wants people to believe you so badly that it, that it hurts. You're basically begging for validation for what happened to you. It's just, it's so strange to me to see strangers talk about other people's sexual assaults. It's so weird. It shouldn't happen.

• 1:17:07Speaker 16

  This is what I would say to people. Keep in mind, the victims read this shit. I read everything. I read everything you wrote about me. Keep that in mind when you're a social media warrior, defending a man that you've never met. People are, like, going to bat for these men. It's like, they don't know you. They don't care about you. They don't even appreciate your support. And people need to realize that, like, writing things online, you see it. The, the victims really see it. Um, and we're not allowed to respond back, and that really sucks, because I wanted to. It's hard when people are saying bad things about you and untruths, and you're like, I, I need to defend myself. Like, to hear a stranger have such a strong opinion about you affects you. And about something that happened to you that is so personal as well.

• 1:17:52Speaker 16

  So personal. There's nothing more personal than a sexual assault. And I, I'm sure she sees this crazy shit that people are saying about her online, because I see it. And I'm not even going out of my way to see it. So I can only imagine what it feels like for her to read these comments and not be able to say anything back.

• 1:18:11Speaker 14

  One of the things that I've been seeing a lot online is the, well, here's what I would have done argument, or well, a real person would react like, or a real, excuse me, a real victim would react like this, or I would have screamed, or I would have fought back, or I would have just left. And it's like, would you? Would you really? Because unless you live in that moment with the fear and the confusion and the weight of knowing that saying no might not stop anything, you don't know what you would have done. You only know what you think you would do. And you're making this determination from like, the safety of hindsight and distance from that person and the comfort of your own, let's say, couch,

• 1:18:52Speaker 14

  right? And so when people say things like that, they're not offering insight or empathy. All they're doing is they're reinforcing the idea that there is a right way to be sexually assaulted and a wrong way to survive it. And that if you don't fight, or you don't scream, or you don't run, that it probably wasn't that bad, and it's probably your fault. But being sexually assaulted doesn't follow a script. Your brain doesn't freeze because it's weak. It freezes because it's trying to keep you alive. And your voice doesn't disappear because you're okay with what's happening. It's disappearing because your body's gone into survival mode and you're doing what you need to do to survive. And

• 1:19:33Speaker 14

  that's totally normal. So when people say, well, if it were me, like, can we, can we stop and ask, well, what is your statement doing? Is your statement actually helping? Are you contributing positively to the conversation? Or you, is it just like another way of saying, you know, well, she should have done it differently and just straight up victim blame? And survivors really don't need alternate endings. They just need you to believe them as they are and not as you would imagine it would be.

• 1:20:03Speaker 16

  For anyone who knows what happened to me, like, any man, male, they think of themselves as victims. They think of women accusing other men. Of sexual assault as liars. They they take it as like a personal offense to them like as men. And it's a culture that will never change, in my in my opinion. They act like you're accusing them regardless of if they even know the other person. They the first thing they go to is false accusations. This happens. I know a friend who this happened to. Women do this all the time. That's not true. Like, that is not true. Why would you put yourself through that? I can't even fathom.

• 1:20:44Speaker 14

  Yeah. And, you know, Bard is really, really high. And Bard is beyond a reasonable doubt. But to get to Bard is really, really challenging because like, that means that it has to be beyond a reasonable doubt. And like, the likeliness of it happening has to be something like over 95%. I can't remember the exact stat.

• 1:21:03Speaker 16

  Ninety nine percent.

• 1:21:05Speaker 14

  Damn. And like, that's

• 1:21:06Speaker 16

  Is what they told me.

• 1:21:07Speaker 14

  That's just wild. And, you know, the defense doesn't actually have to prove that these men are innocent beyond a reasonable doubt. They just have to make her look unstable, or confused, or regretful, or vindictive, or covering up cheating on her boyfriend by saying anything to make her look anything but credible. And this is the part that hits the hardest, is that it's not just a courtroom strategy. This is a message to every survivor watching, and to every woman thinking about reporting, and to every person who has ever sat in silence wondering, what if I came forward? Because the message is loud and clear. If you speak up, we will take the worst day of your life. We will put it on display. We will pick it apart.

• 1:21:48Speaker 14

  We will call you unreliable, emotional, mentally unwell, and dramatic. And we're going to do it with a straight face and a license to practice law. So when people ask, well, why don't survivors, you just come forward more often? I'm just going to start gesturing broadly at the Hockey Canada trial, because this is your answer. Because it doesn't matter if you're sober, or if you're drunk, and it doesn't matter if you go to the hospital, or if you don't, it doesn't matter if you cry, if you fight back, if you freeze, it doesn't matter if there's texts, or videos, or pictures of your bruising. It doesn't even matter if you cooperate with the Police or stay silent, you will still be put on trial. And this is what survivors saw unfold here.

• 1:22:29Speaker 14

  And it's not just the case against five men, because it's the case against her. And it felt like she was on trial and not those five guys. And numerous people who haven't experienced sexual violence, to the best of my knowledge, reached out to me over the course of the trial and said, hey, is this normal? And it is. I really want things to get better. I've been asked the same question in almost every interview. It's like, would you tell someone to go forward in reporting their sexual assault? And the answer is the same every single time is I don't think anybody should have to go through this, unless they're prepared to give the next 10 years of their life to it. And you have to be a really, a really special person to go through something like this.

• 1:23:12Speaker 14

  Cause not everybody is built to be put on trial like this. And again, like I've said before, a million times in this episode, you as the survivor are on trial. You are not a victim. You are a witness to your own crime and your credibility is on the line with every pause, every hesitation, you are under a microscope. Um, so to those who want to report, I really think you need to ask yourself, is this something that I want to be doing for the next 10 years?

• 1:23:41Speaker 16

  Me and Kelly are talking about all of the horrible things that happen in trials and how we would never want to do it again. And all of the negative reasons to not report. But I do want to emphasize that like, there was a moment for me in the trial where um, he was testifying and he said, after I texted him and I said, you raped me. He said, I never met up with another girl again. That was like, that was a win for me. And then when I heard about all the other victims and they were all before the date of what happened to me. There are good outcomes and that's what I will take from the horrible experience. That at least I stopped this from happening to anyone else.

• 1:24:27Speaker 03

  After the verdict, Kelly sent me an episode of the Steve Dangle podcast on YouTube. I understand he's a pretty big deal in hockey commentary and I really liked the conversation he had with his co-hosts and guest, journalist Katie Strang, who co-wrote a widely circulated piece for The Athletic called "The Hockey Canada Trial Could Have Been A Reckoning, It Was Something Else." The other author was Dan Robson. There's links to both the YouTube video and the article in the show notes. Here's a clip of what Steve Dangle had to say about the group chat.

• 1:25:02Speaker 17

  There were two, I don't know if these are what the technical term for them, but the judge was like, "This isn't a thing. This doesn't count in the middle." One of them was, there's a group chat of the players essentially trying to get their story straight. And then in the article that you and Dan wrote, it's "Carachia rejected the Crown's premise that the players were attempting to get their story straight," which you're reading an exchange of half a dozen, a dozen, whatever it is, young men trying to get their story straight. And then the judge goes, "You didn't read that." And I couldn't wrap my head around that. The other one that blew my mind the most...

• 1:25:44Speaker 03

  The other thing Steve Dangle couldn't wrap his head around will be in part three, because we couldn't either. But here's Kelly with her thoughts on the group chat.

• 1:25:53Speaker 14

  There was 117 messages after that night trying to get their story straight. And messages where they're not really talking about guilt or concern or doing the right thing. They're talking about telling their truth. And what that meant was telling the same version. So one message literally said, "Well, let's not make her look too crazy." They're not worried about whether they crossed a line. They're worried about how she's going to look. So how they could shape her or manage her and make sure that she doesn't seem too off or too hysterical or too nuts or too unreliable. And it's not about her wellbeing. It's about how things would look if any investigation came of this. So these guys weaponized her words. And manage her like she's in a PR crisis and not a human being.

• 1:26:38Speaker 14

  And this is exactly what rape culture looks like. It's not the act, it's the scramble afterwards to frame it or minimize it. But most importantly, you make sure those boys come out clean. So the group chat wasn't just a circle of friends trying to figure out what happened after a blurry night out, a celebration. It's a coordinated narrative to rehearse lines and compare notes and protect the team, protect their image and their brand, most importantly. And to make sure that they wouldn't be in trouble for breaking Hockey Canada rules and making sure they could still go to pro level contracts should anything come of this. Hockey, hockey is Canada's thing, like we, we, we plan, we, we plan our holidays around the World Juniors schedule.

• 1:27:22Speaker 14

  I have traveled to see the World Juniors before. I've hosted people here who have come to see the World Juniors in Victoria.

• 1:27:31Speaker 14

  Hockey is a huge part of our culture, but why are we taking hockey so bloody seriously? And not this woman's trauma? Why are we more concerned about getting these guys back on the ice than we are about her well being?

• 1:27:43Speaker 03

  Yeah, obviously with this trial, it's brought up a lot of conversation around toxic sporting culture, particularly, you know, within hockey. And I can say, coming from Australia, all these same kinds of things happened back there as well. What, do you guys have any opinions on what role Hockey Canada or other sports institutions should play in this particular conversation moving forward? Because, you know, the judge delivered a, a legal judgment, but what about the moral judgment? Morally, shouldn't they have known better than to engage in a reckless situation like that?

• 1:28:20Speaker 14

  Yeah, um, I don't know if you want to, uh, like directly quote, uh, Bettman, uh, what he said about that they are not eligible to play in the.

• 1:28:28Speaker 03

  NHL Commissioner Gary Bettman said in a statement that the allegations in this case, even if not determined to have been criminal, were very disturbing and the behavior at issue was unacceptable.

• 1:28:41Speaker 14

  Right now, because that was a huge decision and honestly, that was a win for survivors.

• 1:28:46Speaker 15

  Because I love hockey. I'm a huge hockey fan. I have dated hockey players. Everyone who's ever dated a hockey player is not surprised by any of this.

• 1:28:54Speaker 14

  Nope.

• 1:28:54Speaker 15

  By the way, or has been around them. And I am a diehard Leafs fan. And I would have to stop watching hockey if they were allowed back in the NHL. I wouldn't be able to compromise my own morals. Because I'm allowing it to continue if I if I watch it and if I support it. And I wouldn't be able to support it if any of those men are put back in the NHL.

• 1:29:20Speaker 14

  And can I just say for the record that living in B C, boo Oilers. Um, so what the NHL or Hockey Canada or any large organization should be doing at this point is leading with accountability and not necessarily a public relations team. So this means listening to survivors and not waiting for verdicts to do the right thing. Lord, large organizations have to take responsibility for creating safe and accountable environments. So this means clear policies and education on consent and trauma and swift action when allegations arise. Because silence and the protection of reputations cannot come before survivor care.

• 1:30:01Speaker 14

  And they should support survivors. They should be investing in prevention and model leadership that values integrity over image. Accountability starts at the top and player conduct is their responsibility. Uh, everybody, you know, who is following what happened in Chicago fifteen years ago, like that, that's horrific. And

• 1:30:22Speaker 15

  They're all back.

• 1:30:23Speaker 14

  Just they're all back in the end right now. So so Kyle Kyle Beach and another John Doe um came forward and um basically said they were sexually assaulted by a assistant coach, I think it was, or a training coach.

• 1:30:37Speaker 15

  Equipment manager, I think.

• 1:30:38Speaker 14

  Yes, somebody who is just an awful human. And instead of addressing this, the Chicago cannot, uh, the Chicago Canucks, oh, God. Oh, God, I, something just lit up in here.

• 1:30:52Speaker 14

  The Chicago Blackhawks, excuse me, the Chicago Blackhawks, when they dealt with Kyle Beach coming forward, their whole thing was, well, we're on a winning streak right now and we're probably going to win the Stanley Cup. Can we probably, can we just discuss this later? Like just sweep it under the rug. Every single player on that team knew something happened and they knew that Kyle was telling the truth. And yet, everybody stayed silent. Everybody just, you know, wanted to get their name on Lord Stanley. And I was a huge Chicago fan back in the day. Ronek was one of my favorite players. I loved Eddie Belfour. Like, I loved 90s Chicago Blackhawks, right? And also, you know, for the record, I am a big Leafs

• 1:31:35Speaker 14

  fan. Lord have mercy on my soul. But, you know, it broke my heart because I have Chicago merch. Like, I had a Blackhawks jersey. I had my picture proudly taken outside the United Center in Chicago when I, when I was there. And then to see these guys come back into the NHL, like, that's a slap, especially when the NHL is like, no, no, we're gonna do better. We're gonna do better. So, this is the NHL's and hockey's Canada's chance. They are not going to get a better moment than this to lead by example. For Betman to, like, approve the statement coming out saying, you know, like, we're gonna be doing our own investigation, like, these allegations are horrible. We're doing our own investigation. Kudos to Betman. I, I never, never once did I think I'd ever agree with that guy. But,

• 1:32:20Speaker 14

  that brings up a whole other thing as well. Like, the fact that we're already talking about who gets to return to the NHL after this trial is, is proof that this was never about justice. Like, it's about, like, let's, let's get these guys back on the ice. Like, it's gonna be preseason in a few weeks. But before the ink was even dry on the verdict, the conversation had already shifted to when these guys are returning. So while the complainant is left to piece her life back together after all this scrutiny, People are already eager to rehabilitate the reputations of men who face serious allegations. And the speed at which the focus flipped from accountability to career recovery is super troubling because we're talking, I guarantee, less than an hour.

• 1:33:04Speaker 14

  But again, we need to remember as well, not guilty does not mean innocent. And survivors are watching what the NHL and Hockey Canada is going to do right now. So a woman says she's sexually assaulted by multiple men, cross-examined for days, called unreliable. These guys joke about getting their story right. And all some douchebag on Twitter is worried about is like, can he still play right wing in a few weeks? Like, that's stupid. And you wonder why people don't come forward. That guy is a prime example of what's broken. And the NHL has a long history of sweeping this kind of violence under the rug. But I will scream this until my throat bleeds. Survivors are watching, the fans are watching, the public is watching.

• 1:33:47Speaker 14

  And if any of these teams sign players without consequences, they are choosing silence over accountability.

• 1:33:54Speaker 15

  But it's not just like the institution that needs to recognize the harm that these players caused. It's also the fans. Like, if you go online and defend these people that you do not know, you're harming the survivor. Like, I used to see things that people would write about me online. If people are talking about you online, you're going to look. I'm like, I hope that EM doesn't, but I'm sure she does. It's impossible not to. You're curious what people have to say about you. And people are so cruel. The things that people would write about me, I was, I would just cry myself to sleep every night because it was so mean. For me, this is one of the worst reactions to a verdict that I have ever seen.

• 1:34:36Speaker 14

  Yeah.

• 1:34:36Speaker 15

  I've never seen more people attacking a victim in my life.

• 1:34:42Speaker 14

  What we need to remember about these players is that there is not a comeback story for these guys. There is only a woman who told the truth and got shredded for it while these guys sat silently and stone-faced in court and then walked out. So if the league isn't going to show integrity, the fans need to, and the fans need to take their money elsewhere. And that means not buying gear this year. This means not buying the Sportsnet package or the TSN package or whatever. This means taking your money literally elsewhere because this isn't about hockey. This is about how much harm you are willing to ignore just to get back to the arena. And if your takeaway, your immediate takeaway from a sexual assault trial is that some guy deserves a second chance on the ice,

• 1:35:22Speaker 14

  then you have told survivors everything they need to know about you, that a hockey game is worth more than their trauma.

• 1:35:29Speaker 15

  The thing is, though, that everyone points to hockey culture. This is everywhere. This is society. This is, it's like that everywhere. Even if they have an organization that investigates, for example, like the NFL, they will suspend players for sexual assault allegations for a few games. Like, in what world is that equivalent to the harm that they cause? The hockey world specifically, yes, is really bad, but it's everywhere. It's, it's, it's literally our culture. It's Canadian culture. It's American culture. It's unfortunately the way that the world works.

• 1:36:09Speaker 03

  Thanks for listening and special thanks to JB and Kelly Favreau for joining us again and for their help behind the scenes with research, pointing things out, finding sources and making up charts. Check out our advocacy website, beyondtheverdict.ca. We'll be talking about that more at the end of part three. This is one of the ways that we use proceeds from our episodes to help support those facing injustice. Part three will be focused on getting into what the hockey players say they saw in room 209 during that two hours. We'll be zooming in on specific incidents like the alleged slap, the whole thing around

• 1:36:49Speaker 03

  Brett Houghton's testimony, the evidence that wasn't admitted and why, and what it showed, and how it was all reflected in the verdict and written decision. If you found this series compelling, we'd love for you to tell a friend, post on social media, leave a comment, or a review wherever you listen to podcasts. Audio editing was by Crosby Audio, and Eric Crosby voiced the disclaimer. Thanks to JB, Kelly Favreau, and Nicole Chittle for research assistance. Our senior producer is Lindsay Eldridge. Research, writing, narration, and sound design was by me, and the theme songs were composed by We Talk of Dreams. I'll be back with part three. See you then.

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