Analyzing the Hockey Canada trial [3]

[Part 3 of 5] In Part 3, we unpack the confusing timeline of Room 209 and the contradictions at the heart of the case. A clear pattern emerges: the five accused players were repeatedly given the benefit of the doubt, while E. M. was scrutinized and cast as unreliable. Thanks for your patience with this deep-dive series and for allowing us the time to give it the attention it deserves. Part 4 will wrap this series up, and then we’ll be back to our usual schedule. Please note: this series does not dispute the judge’s not guilty verdicts. Our position is that the framing of the evidence in the written decision was unnecessary and damaging, with impact that extends far beyond the trial. *Additional content warning: Graphic details of sexual acts. More information and resources: WATCH: Hockey Parents - A profile of Mitch Marner and Michael McLeod's parents from 2009 https://www.youtube.com/watch?v=OY-C2-uatyE, by Peter Wall for CBC via YouTubeREAD: What Was Left Unsaid in the Hockey Canada Trial | The Walrus https://thewalrus.ca/what-was-left-unsaid-in-the-hockey-canada-trial, by Ariella Garmaise, Sept 10 2025FYI: The “Junior Hockey Bible” https://web.archive.org/web/20140703134835/https://tshockey.wordpress.com/the-bible/via Internet Archive (content warning!)LISTEN: https://www.canadiantruecrime.ca/episodes/130The Trial of Jacob Hoggard https://www.canadiantruecrime.ca/episodes/122 (JB’s story). Kelly Favro’s Story https://www.canadiantruecrime.ca/episodes/130If you or anyone you know is experiencing sexual violence and abuse, help is available at REES Community https://www.reescommunity.com/resources/ or Ending 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/ Let us know what you think! Follow Canadian True Crime on Facebook https://www.facebook.com/canadiantruecrime/ and Instagram https://www.instagram.com/canadiantruecrimepod/?hl=en 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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• 1:40Speaker 02

  Canadian True Crime is a completely independent production funded mainly through advertising. The podcast often has disturbing content and coarse language. It's not for everyone. Please take care when listening.

• 1:51Speaker 03

  An additional content warning. You'll hear graphic details of sexual acts. Please take care when listening. And thanks so much for your patience with this series. I still operate this podcast as a passion project. A deep dive into the nuance and context. And every so often, a case comes along. That feels like an endless iceberg. Going through it does make the work more meaningful, but it also takes a lot more time. So I'm grateful that you're here listening. There will be a part four coming shortly, and that's it. Please be assured that we'll be back to regular programming soon.

• 2:35Speaker 03

  There's an infamous document in hockey circles called the Junior Hockey Bible, a glossary of crude hockey terms that portray women as disposable objects, interchangeable and defined only by their looks or willingness to provide sex. It began as an email chain in the early 2000s. Players across Canada and the United States were sharing and adding their own war stories and tales of sexual conquests, to the point where it became a lengthy document that found a home on the internet for a time. The website started with a tongue-in-cheek warning to those who can't take a joke.

• 3:18Speaker 03

  This infamous Junior Hockey Bible has been mentioned a few times in relation to the Hockey Canada Trial as a relic of junior hockey culture, now defunct and scrubbed from the web since 2020. But the Internet Archive always remembers. The Junior Hockey Bible is about banging as many broads as possible, and it's openly violent and misogynistic. Alcohol is a factor in sexual pursuits. Consent is trivialised, and group sexual encounters are celebrated as entertainment for the players, an extension of team bonding that happens off the ice. Here's one definition.

• 4:01Speaker 03

  Sluts, also known as dirties, puck bunnies and puck sluts, are essential to a good time, and a hockey boy knows this. Sluts know their role. Suck cock. Take it how I give it. Don't call tomorrow, or ever for that matter. Don't acknowledge me in public unless first acknowledged, which probably won't happen. At best, they are Plan B. Sluts are like buses. There will be another along in 15 minutes. The term "gummer" comes from the Junior Hockey Bible. Wingman culture is a big deal. If a player goes out of their way to help a friend get laid, they're a team player. They earn respect for taking one for the team,

• 4:43Speaker 03

  even if that means having to hook up with a swamp donkey, a dog face, or a war pig, just some of the terms they use for undesirables. Women are framed as team currency, with an emphasis on loyalty to the boys. This bible encourages moving from heavy drinking at the bar to another location for sex straight away, without any detours for food, conversation, or anything else that might give her time to sober up or reconsider. And once behind closed doors, pack mentality is glorified, and multiplayer sex is almost a rite of passage, a collective achievement for the team. One move, titled "cinema or theatre",

• 5:27Speaker 03

  is when a player lets other players watch them having sex without the woman knowing, by leaving a door ajar, or letting them look through a window or some other vantage point. There's moves like the lamb roast and the tag team, celebrated as a source of pride and amusement. And if the players are lucky, it might escalate into the all-out chaos of a gong show, an apparently out-of-control situation involving A lot of dirty sluts and a lot of booze. Adding more players is not only normalized, but celebrated as part of the spectacle. And while they're there, they might try the "mystery hand" move,

• 6:08Speaker 03

  which tells them to sneak in, grope a woman without her knowledge, and slip out undetected. A key theme throughout this document is that a player's sexual encounters can earn him credit based on how well he entertains his teammates. Degrading, humiliating, and sometimes violent acts during sex are celebrated and encouraged. And there were bonus points for anything filmed on camera. Remember, the document originated from the early 2000s.

• 6:39Speaker 03

  One move is labelled "The Teabag", described as a prank, a midnight snack or a party trick, where a player drops his testicles into a woman's face, ideally into her mouth, while making sure a camera is rolling. Quote, "Tends to work best on unsuspecting sluts, but take what you can get." Bonus points for the move labelled "The McDonald's Surprise Meal", that suggests a player should spit on a woman's back and trick her into looking at them right when they're ready to ejaculate. Or there's the Tony Danza, or "Who's the Boss", described as a great way to really degrade a trash barrel slut,

• 7:21Speaker 03

  that ends up with a player punching her in the neck to render her unconscious, then throwing her out on the street. The Junior Hockey Bible doesn't just objectify women, it encourages young hockey players to view them as interchangeable props and sexual encounters, where the real audience is always the other guys in the room. To be clear, there's no evidence the players in Room 209 in London, Ontario that night had ever seen the Junior Hockey Bible or were aware of it. But it is a very stark illustration of rape culture, which has long been associated with junior hockey, a world that thrived out of sight of coaches and parents.

• 8:07Speaker 03

  Junior hockey still works the same way it has for years. Kids get drafted at 16 and often have to move away from home and live with billet families. By that time, hockey has played a prominent role in their childhoods, with their families pouring thousands of dollars and countless hours into practices, tournaments and travel. The system funnels kids into elite AAA programmes, where the pressure ratchets up. Scouts are watching, and every season feels like an audition for the next level. Canadian filmmaker Peter Wall filmed a documentary for CBC in 2009 about hockey parents, and Michael McLeod's mother

• 8:50Speaker 03

  was one of two parents profiled, his friends and family call him Mikey.

• 9:01Speaker 04

  Judy McLeod has three hockey-playing kids. Her son Mikey is number nine for the Peewee Toronto Marlins.

• 9:08Speaker 05

  You know, it started out, you put your kids in, you know, a little tiny squirt type hockey. They excel at it and they love it. And all of a sudden, it seems like you wake up and you're, this is all you're doing. I never, ever get a night off. We have hockey every single day. Move it, move it, go Mikey!

• 9:26Speaker 03

  Judy McLeod seems really sweet and grounded. It's clear she's the sane one of the two parents profiled. And from what I understand, NHL fans will probably be able to guess who the other parent is. We'll get to that in a second. In another scene, Mikey is about to leave his hotel room with his mom. The 11-year-old is clearly camera shy, so doesn't say anything.

• 9:51Speaker 04

  It's the last day of the tournament, and for Judy and Mikey, it's a pre-game ritual: the pep talk.

• 9:57Speaker 05

  Every time you on the ice, I think I can make a difference. Okay, and you will. Okay?

• 10:03Speaker 05

  Good man. You know, there's certainly a lot of parents that, you know, never played competitive sports themselves and are really sort of doing this for themselves. I hear them talking to their kids and screaming at their kids after they've had a bad game. And I hope that I'm not that parent.

• 10:19Speaker 03

  It appears that parent is the father of Mitch Marner.

• 10:23Speaker 04

  Paul Marner admits he sometimes goes overboard.

• 10:26Speaker 05

  Oh, Nick, are you kidding me?

• 10:28Speaker 06

  It's like we're living our life through our kids. And if we could all stay a little calmer, it'd probably be a better environment in the rink for the kids as well.

• 10:38Speaker 04

  Back at his son Mitch's qualifying game, it's anything but calm.

• 10:43Speaker 06

  Hit him with it, Mitch! Now cycle it! Skate, Mitch. Come on, skate!

• 10:48Speaker 04

  By the end of the second period, they're down 3-0. And just listen to what Paul Marner has to say. He's talking to his son, not the ref.

• 10:58Speaker 06

  You better get fucking skating, Mitch, I swear to God.

• 11:07Speaker 03

  Not gonna lie, I found this pretty heartbreaking. And apparently, it only got worse as Mitch Marner entered adulthood and was drafted into the NHL to play for the Toronto Maple Leafs for nine years. And his father remains perhaps the most high-profile and controversial hockey parent of an adult. But back in 2009, the filmmaker asked Mikey's mother, Judy McLeod, if all the time and money and pressure was worth it.

• 11:37Speaker 05

  If I were starting all over again, knowing what I know, I don't know if I would do it all over again.

• 11:46Speaker 03

  It's no surprise that by the time these young hockey players are drafted into elite junior hockey at 16, they see it not just as a game, but as part of their identity, perhaps their whole identity. They also find themselves living away from their parents at a crucial time of adolescence, while still under huge pressure to chase the dream of making the NHL. The rookies often look to the older players on the team as role models for how to act, on the ice and off it. And when they finally get a night off, it becomes a chance to blow off steam and party hard. These players are treated like celebrities, particularly in small towns,

• 12:30Speaker 03

  and that sense of privilege can fuel a dangerous mix: young players, unsupervised, getting quickly up to speed about the many benefits that come with their new status. It's not just the sport that shapes them, though. It's our entire culture that teaches us to put athletes on pedestals. Other boys want to be them, and girls want them as boyfriends, even if that means embracing the label of puck bunny. Proximity to the team feels like status of its own. All of this adoration reinforces the players' belief that they're special and entitled, and perhaps that the usual rules don't apply to them.

• 13:13Speaker 03

  So with all of this, it's really no wonder why sexual assault allegations have haunted Canadian junior hockey for decades. An investigation by the CBC's Fifth Estate in 1996 revealed that since 1980, more than 20 players and team officials in the Ontario Hockey League had been investigated for sexual assault. In most cases, the charges were dropped or the accused was acquitted. In 2000, three members of the Barry Colts were charged with sexual assault after an alleged incident involving a 16-year-old girl inside a local home. The Crown dropped the charges citing "no reasonable prospect of conviction",

• 13:57Speaker 03

  the Colts went on to win the OHL championship. In 2012, three members of the Sioux-St. Marie Greyhounds were charged with sexual assault after a woman alleged she was forced to have sex with them against her will. Once again, charges dropped. The following year, 2013, 18-year-old Ben Johnson with the Windsor Spitfires was charged in relation to raping a 16-year-old girl who was heavily intoxicated in a nightclub washroom. He was later found guilty and sentenced to three years for "forcible criminal sexual assault". And earlier this year,

• 14:39Speaker 03

  Rick West had reported for CTV that Peel Regional Police had opened an investigation into an alleged sexual assault from 2014, involving eight former members of the Mississauga Steelheads. The complainant, known by the name Anne-Marie, said she'd been dating one player for a few months when he invited her to a billet house to watch TV with one teammate. She arrived to find eight of them there instead. She says she had consensual sex with her boyfriend in a bathroom, but he left the door ajar and other players entered and took turns to assault her. Anne-Marie says,

• 15:21Speaker 03

  "Pretty quickly, it got to the point where I just tried to take my mind somewhere else and tried not to even make eye contact." She recalls being trapped, frozen and unable to leave over the course of about ninety minutes. Then, after everyone had taken a turn, some more than once, I was brought into the shower. And after that, I felt like I had a chance to get the hell out.

• 15:51Speaker 03

  On her way home, Anne-Marie called a female friend and told her what happened. That friend corroborated the story to CTV and recalled Anne-Marie telling her that some of the younger Mississauga Steelheads players, just sixteen years old at the time, seemed pressured by the older players to participate. And because Anne-Marie was twenty-two years old at the time, she felt weird about reporting that. That was in 2014. It was Michael McLeod's rookie season with the Mississauga Steelheads. He was sixteen years old at the time. None of the players have been named and none of the allegations have been tested in court.

• 16:37Speaker 03

  Anne-Marie says she spent years feeling ashamed and blaming herself because she made the choice to go hang out with her boyfriend and his teammate. It wasn't until she saw the London Police Chief issuing a public apology to EM after their initial flawed investigation that she was able to name what happened as a sexual assault and tell her family. She reported it to the police after that, and the investigation is ongoing. Michael McLeod ended up being drafted into the NHL and played with the New Jersey Devils right up until he was charged with sexual assault in relation to complainant EM and put on leave.

• 17:20Speaker 03

  The NHL has just announced that McLeod and his four teammates found not guilty at trial will be eligible to sign a new NHL contract in October, and they can return to play on December the first.

• 17:42Speaker 03

  In the first episode of this series, we took a high-level look at the Hockey Canada trial from EM's perspective as victim complainant and what she might have been going through. In part two, I started looking at the facts and evidence everyone was talking about and how it showed up in the outcome of the trial. We went over Michael McLeod's Instagram message with EM the day after the incident and how he came across as bossy, condescending and entitled, while EM was apologetic and hesitant, shrinking herself to appease him. That same hesitation resurfaced at trial, where the judge frequently treated it as proof she wasn't credible. We also walked through the group chat

• 18:26Speaker 03

  that showed the players discussing getting their stories straight. So now we get to the timeline, specifically the versions of events provided by the hockey players about what they saw happen inside Room 209.

• 18:45Speaker 03

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• 20:12Speaker 03

  So now we get to the timeline. This ties back to the group chat almost a week later. As you'll recall, The Crown argued that this series of messages, when viewed in totality, showed the hockey players actively engaged in getting their stories straight and getting on the same page. And further, it suggests a deliberate attempt on the part of some players to pad the record with planted narratives, as if they knew the chat log might end up in police's hands, which it did. And since this group chat took place before any of them spoke to the police or Hockey Canada, it may have influenced the version of events they provided, for some of them,

• 20:55Speaker 03

  maybe even without realising it. Through Carter Hart's testimony, the defence put forward the argument that the group chat showed they were trying to get on the same page, you know, by agreeing they should all tell the truth. Justice Karasir agreed with the defence, finding the hockey players were expressing their honest recollections, and that there was no legal basis to conclude they were trying to concoct a false narrative of the events. But these episodes are not a criminal trial. The Crown's point was that the group chat didn't just stay in the chat, it showed up later in what the players told police and Hockey Canada.

• 21:38Speaker 03

  But in trying to build a single story that made EM the aggressor, and cast their actions in the best possible light, the hockey players ended up blending details, muddling the sequence of events, and even described things that were flat-out impossible, contradicted by digital evidence. And if the spotlight had been turned on the players' inconsistencies and contradictions in the same way it was on EM's, it should have raised the same doubts about their credibility, but somehow, it didn't. So let's take a look. Last episode, we laid out what the group chat suggested were the key points in the cohesive narrative they were trying to construct.

• 22:22Speaker 03

  One, that the players went to the hotel room looking for food. Two, that they came across E M, who was begging everyone to bang her, and that no one would. Three, eventually, some of them decided, why not? But E M was the instigator and aggressor, and she consented to everything. Room 209 was registered to Michael McLeod and Alex Formenton, so they would have had key cards for entering it. But based on the testimony and various statements, it sounds less like a private hotel room and more like a revolving door of hockey players drifting in and out, some just to gawk at the spectacle, others to join in.

• 23:06Speaker 03

  It has to be assumed that someone was letting them in, but it doesn't appear that was touched on at trial in any way. It's not a particularly easy task to definitively pin down who was there, when they arrived, and how long they stayed. And it's almost impossible to pin down exactly what was going on in the room while each of them were there, because their separate accounts are often wildly divergent, even for players who entered the room at exactly the same time. This is the kind of confusion that might have been untangled or revealed by the police in 2018. But the investigation was flawed, and when it was reopened in 2022, the haziness of

• 23:51Speaker 03

  memory was present, and that can make for a pretty convincing shield. It's not a lost cause. There are a series of time-stamped milestones to anchor the incident to, like video surveillance footage showing which hockey players returned to the hotel from the bar and when, the various text messages, and the timestamps of those two so-called consent videos.

• 24:18Speaker 03

  Let's start with Michael McLeod. He did not testify, which is his right, but his police interview was the only evidence the court could consider in terms of his version of events. And it's important to keep in mind that the detective had already concluded there were no grounds to lay charges. The interviews at that point were more of a "going through the motions" thing. The Crown argued the hockey players who gave interviews to the police were not asked very many questions. So even though there isn't a lot of detail to pick apart, not anywhere near as much detail as EM's statements, there are some glaring contradictions that appear to be evidence of deception. The hotel surveillance footage

• 25:03Speaker 03

  shows that Michael McLeod and EM arrived at the Delta Hotel at 1:48 a.m. McLeod told the detective that after consensual sex, that's not in dispute. He ordered food and went down to the hotel lobby to wait for it to be delivered. He said that the food arrived at 2:10 a.m. Then, some other players came into the room. The problem is, surveillance footage from the hotel lobby shows the food didn't arrive until 2:57 a.m., 47 minutes later than the time McLeod gave. And he wasn't there waiting for the delivery. The surveillance footage shows

• 25:46Speaker 03

  the delivery guy waiting in the lobby for McLeod. This isn't just a minor memory lapse or small inconsistency, it's a pretty significant deviation from the facts. And what struck me is that McLeod was incredibly specific about the time he said the food arrived, 2:10 a.m. This happens to be the exact time that McLeod texted the player group chat inviting them to his room for a three-way. Carter Hart replied, "I'm in." Then, according to phone records, Michael McLeod texted an additional player inviting him to the room for a gummer.

• 26:27Speaker 03

  So given MacLeod effectively told police his teammates only showed up for the food, there is an argument that it bolsters his version of events to claim the food was delivered before anyone else entered the hotel room, which was about 15 minutes after he sent the three-way message. But what really happened, as proven by surveillance, is that by the time MacLeod picked up the food at 2:57am, two players had already entered the room and left. Then three additional players showed up and had already been in the hotel room for more than 10 minutes. The food delivery situation paints a clear picture.

• 27:09Speaker 03

  MacLeod appears to be reshaping the story to downplay and minimise his role, that it was he who offered EM to his teammates by sending out the three-way invitation. He not only left that part out when he spoke to the police, but he rearranged the timeline to centre around a food delivery, conveniently sidestepping the real reason he invited them and the main reason why at least a few of them showed up. As mentioned in the last episode, while Justice Karasian notes the Crown's submission that MacLeod intentionally lied to the police, there is no evidence that it was weighed against his credibility.

• 27:52Speaker 03

  But with the food delivery contradictions and memory gaps that could be interpreted as deception, none of it was mentioned in the judge's written decision at all. This is all that is noted about MacLeod's police statement. Quote. According to Mr MacLeod, he ordered some food and then some of the other players came into the room. Carter Hart was one of them. He went down to the lobby to pick up the food, including chicken wings and mozzarella sticks.

• 28:22Speaker 03

  You'll recall the judge ultimately concluded that she was not satisfied based on the evidence that Mr MacLeod invited men into room 209 without Ian's knowledge for the purpose of committing a sexual assault. It's striking that the judge references it being based on the evidence when there was nothing included in the written decision that MacLeod told the police the food arrived at 2.10 when it actually arrived at 2.57. It was completely excluded. I got all those details from the trial reporting of CBC News, TSN and Sportsnet. So none of this was weighed against MacLeod's credibility either.

• 29:05Speaker 03

  There's no examination of his inconsistencies and contradictions, it's just left out. And as you'll remember, this conclusion was part of the judge's reasoning for finding MacLeod not guilty of being a party to the offence of sexual assault. The Crown also has to establish beyond a reasonable doubt that MacLeod did something with the required intent to help a person commit sexual assault. And now we get to the additional evidence that didn't even make it into the trial. About two years after MacLeod gave his statement to the police at his lawyer's office, he was compelled to be interviewed by an independent investigator hired by Hockey Canada.

• 29:50Speaker 03

  This interview was inadmissible evidence for reasons I'll explain in a second. It was also the very first time that MacLeod introduced the additional narrative about why the players came to the hotel room. This was in 2022. He could no longer pretend he didn't send that three-way invitation to his teammates. So this is what he told the Hockey Canada investigator. And please be aware, this is a direct quote of the investigator's notes from that interview. Em said, "Tell teammates to come." I said to Em, "Are you serious?" Em said, "Yes," so I sent a three-way text and waited 10 minutes.

• 30:33Speaker 03

  I ordered tonnes of food: mozzarella sticks, pizza, wings, crazy bread from Domino's or Papa John's. So suddenly, there's food everywhere, piles of it, even a pizza, enough to feed a hockey team. It props up McLeod's food story while slipping in a new twist, that it was Em who wanted him to invite his teammates. And that's what spun into all those headlines about her asking for a "wild night." That was what the defence said, not Em. But here's the kicker: the Crown pointed out that the bag McLeod was actually seen carrying from the hotel lobby was small,

• 31:17Speaker 03

  not the kind of haul you'd bring back to feed a crowd, barely enough for two people, let alone a room full of players, the Crown said.

• 31:27Speaker 03

  So why was McLeod's statement to the Hockey Canada investigator ruled inadmissible at trial? A quick sidebar, because this does include some more interesting information. We know that Em went to the police after her mother found her crying in the shower, and word also reached Hockey Canada through her mother's boyfriend. As a result, two investigations started almost immediately, one by London Police and another by Hockey Canada, who hired Danielle Robitaille of Henin Hutchison Robitaille to look into possible code of conduct violations. That firm is best known for defending Jian Gomeshi in 2016.

• 32:13Speaker 03

  And before that, Marie Henin was the defence lawyer for former Ontario politician Michael Bryant in the Darcy Allen Shepherd case, one we've covered before. Back to Hockey Canada. So in 2018, their independent investigator Danielle Robitaille was only able to interview one hockey player, Callan Foote, the one found not guilty in relation to doing the splits over EM's face. The other hockey players refused to participate until the police investigation was finished. So did EM. When the police closed their initial investigation without charges, EM still declined to speak to Hockey Canada.

• 32:58Speaker 03

  And so Danielle Robitaille shut down her first investigation without approaching any of the other players. Two years after that, in early 2022, TSN reported that EM had filed a $3.55 million civil suit against Hockey Canada for failing to investigate her complaint properly. The organisation quickly settled without informing the accused players, and it soon emerged that the payout came from a secret fund built from player registration fees. The public backlash was swift, and the case exploded into a national scandal. Two months into the scandal, EM broke her silence in a brief Globe and Mail interview

• 33:43Speaker 03

  with reporter Robyn Doolittle alongside her lawyer. EM said she never wanted attention, only accountability, and described the dread she felt as she saw the details of her complaint entering the public realm. She said she did not leak it. Part of her motivation for this interview was to correct misinformation, including Hockey Canada's early claim that she hadn't cooperated with police, a statement the organisation later walked back. The surge of national attention led EM to take a polygraph. As we've noted on this podcast many times, polygraphs or lie detector tests are not admissible in Canadian courts.

• 34:28Speaker 03

  They don't prove truth or lies. They only measure stress responses compared to A baseline which can be interpreted as deception. It's not scientific. And even if the operator, in this case, a former London police officer turned experienced polygraph operator, found E M to be truthful, it would have no bearing on whether the players believed she consented. Her lawyer even acknowledged they knew this, they knew it wouldn't matter in court. But this was about something else entirely: public opinion. E M went ahead with the polygraph and gave the results to The Globe and Mail to counter claims she wasn't telling the truth.

• 35:12Speaker 03

  In response to the questions of whether E M had lied in her statements, had been misleading, and provided any false accounts in her version of events, this operator concluded E M was being truthful. E M's lawyer also explained why she refused interviews with Hockey Canada or N H L investigators. She'd already given an eight-page statement, plus photos, texts, a civil claim, and multiple police interviews. Her lawyer said, "How many times does she have to do this?" Meanwhile, sponsors had pulled out, federal funding to Hockey Canada was frozen, Parliament called the organisation in for hearings, and executives began resigning.

• 35:57Speaker 03

  The London police also reopened their investigation.

• 36:03Speaker 03

  Under mounting pressure, Hockey Canada issued an open letter announcing it was reopening its own probe, and was now requiring all players to participate or face an immediate ban from Hockey Canada programmes. The defence lawyers representing the hockey players pushed back, saying that this open letter implied players had refused interviews with Robitaille, when in fact, she never reached out. But the message was clear: the players were now compelled to cooperate.

• 36:38Speaker 03

  At around this point, Robitaille had also received a statement from EM's civil lawyers outlining her allegations in lieu of another interview. It should be noted for balance that at trial, EM conceded that this statement, again prepared by her civil lawyers, contained errors. Perhaps the most serious was the false inclusion of player Jonah Gadzovic, who was in the hotel room at a certain point, but who EM testified had nothing to do with her complaint. She said she only identified him from photos as someone she'd seen at the bar, and her civil lawyers put his name in the statement that was sent to Hockey Canada investigator

• 37:22Speaker 03

  Robitaille. Although EM would have signed off on that statement, she effectively said she didn't fully understand it would implicate Jonah Gadzovic in her complaint, and she expected her lawyers would warn her about things like that. The defence pounced on the error as another reason to question her credibility. So now that Danielle Robitaille had a statement for EM, she went ahead and conducted interviews with Michael McLeod, Alex Formenton and Dylan Dubay. The players, now compelled to meet with Robitaille, only agreed on one condition: she could take notes but not record or transcribe the interviews.

• 38:07Speaker 03

  Their lawyers worried that anything they said might reach the police, because all five accused had exercised their right to silence when the police reopened their investigation. Danielle Robitaille later admitted she knew the London police were seeking a court order for her files but didn't tell the players. She still had two left to interview, including Carter Hart, who hadn't given his account to anyone, but those interviews never happened. The police obtained a court order to seize the notes from Robitaille's 2022 interviews with McLeod, Formenton, Dubay and three other players who were witnesses. We'll call this the Robitaille evidence.

• 38:52Speaker 03

  When Robitaille later learned criminal charges were coming, she cancelled the remaining interviews, including with Carter Hart. That's why the trial was the first and only time we heard his version of events. The Crown prosecutor tried to admit the Robitaille evidence at a pre-trial hearing, arguing it was a significant tool to assess the credibility and reliability of MacLeod, Formenton and Dubé. But their lawyers had set those strict conditions: no recordings, no transcripts, no sworn statements. That left only robotized notes, which the defence argued were hearsay.

• 39:33Speaker 03

  It was a smart strategy and a reminder of how the system tilts towards the accused. They had the right to silence and legal protection, while the complainant, as a Crown witness, did not. The presiding judge, who wasn't Justice Karasir, ultimately ruled those notes were inadmissible when it pertained to the accused hockey players. The interviews were coerced by Hockey Canada's ultimatum, and the notes themselves were hearsay. It was a major blow to the Crown's case, although we can't know if it would have changed the verdict. But once again, this isn't a criminal trial, and the accused player's liberty is no longer at stake.

• 40:18Speaker 03

  Discussing the Robitaille evidence in relation to the accused players does not risk wrongful conviction. And while the players may have been pressured to sit for interviews, there's no sign they were pressured to give a particular story. From a moral standpoint, the Robitaille notes still offer crucial insight, which we'll get into as we continue to go over what happened in Room 209.

• 40:48Speaker 03

  The case suggests that about 10 or 11 players were in the hotel room at the same time, but the various evidence shows that as many as 16 players came and went. To keep it simple, here's how the trial evidence broke down. First, the five accused, Carter Hart, who testified, Michael McLeod, Alex Formenton, and Dylan Dubay, whose initial police statements were admitted, and Callan Foot, whose version of events was not part of the trial record.

• 41:22Speaker 03

  Then, there were four teammates called as witnesses, Taylor Radish and Boris Katchuk, who left before the alleged assaults, and Tyler Steenburgen and Brett Howden, who were in the room during part of the incident. None of those four were charged with any wrongdoing. And finally, there's seven other players who were identified in the room at various times but weren't charged or called to testify. So the judge noted these details from Michael McLeod's police statement about what happened immediately after he and EM left the bar where they met. They decided to go back to the hotel where they had sex.

• 42:05Speaker 03

  According to Mr MacLeod, he ordered some food and then some of the other players came into the room. Carter Hart was one of them. That's it. So we know that MacLeod sent the three-way message to the group chat at 2:10am. The surveillance footage established that over the following 10 minutes, no one else came into the hotel room. So apparently, MacLeod decided to go on a recruitment mission. And we've established that it wasn't because he had a ton of food to share. The food would not arrive for another 40 minutes. Boris Katchuk testified that McLeod intercepted him as he was returning to his hotel

• 42:48Speaker 03

  room and invited him to room 209. Katchuk said he was carrying a slice of pizza he'd already purchased. He testified that after he entered the hotel room with McLeod, McLeod asked him if he would like a guma, which he understood to mean a blowjob. Katchuk said he laughed but did not respond. He could not recall if EM had any reaction to this comment. But on cross-examination, Katchuk agreed that EM appeared to be following along with the conversation. He didn't notice any change in her demeanor when McLeod offered the guma, and she did not seem upset.

• 43:30Speaker 03

  So Katchuk did notice something about EM's reaction, or lack of one. If EM had truly wanted McLeod to invite his teammates for a wild night, you'd expect her to show it somehow when McLeod offers a blowjob on her behalf to Katchuk. Say something, make eye contact, give a signal, show some kind of enthusiasm. The best Katchuk could say was that EM showed no outward reaction. And there appears to be a reason for that. EM testified she didn't know what a guma was, according to reporting by Kate Dubinsky for CBC News. The judge's written decision notes that, quote, "According to Mr.

• 44:15Speaker 03

  Katchuk, as he and McLeod were speaking, Taylor Radish came into the room. Mr. McLeod went next door and brought him into room 209." Did Radish walk in on his own or was he brought in by McLeod? How could McLeod be speaking to Katchuk and also going next door to bring in Radish? We'll get to what Radish said in a moment, but the judge makes no mention of this inconsistency.

• 44:45Speaker 03

  The rest of Katchuk's testimony, according to the written decision, MacLeod left him in the hotel room with E M for a couple of minutes to go and recruit radish. Katchuk testified that E M seemed comfortable, playful and flirty. The only thing he recalled is that she asked him for a bite of his pizza. Apparently, asking for pizza is the height of flirtation. Katchuk couldn't even remember what he said back, but he did remember he did not give E M any pizza. What a bizarre interaction. The Crown argued that this moment cut against the defence theory that E M wanted group sex.

• 45:28Speaker 03

  She never offered anything sexual, not once. The only offer came from Michael McLeod on her behalf. Here's how Justice Karasia framed that interaction in her analysis. Quote, "Mr. Katchuk testified that when he was in the room, Mr. MacLeod asked him if he would like a guma or oral sex. This statement was made in front of E M who showed no negative reaction. When Katchuk was alone with her after MacLeod exited the room, he described E M as flirty and playful." The judge also pointed out that, quote, "E M did not appear upset or surprised to see them enter the room.

• 46:11Speaker 03

  She did not react in any way when Mr. MacLeod asked Mr. Katchuk if he wanted a guma in her presence."

• 46:20Speaker 03

  This is one of the interactions that informed the judge's overall conclusion that E M invited sexual activity and consented throughout. The judge does not acknowledge E M's testimony that the reason she didn't react was because she didn't know what a guma was. It's not even mentioned in the entire written decision.

• 46:44Speaker 03

  It's troubling that this even needs to be said, but consent requires a clear affirmative yes, showing no negative reaction or not reacting in any way does not equal consent. Taylor Radish testified that he couldn't remember many details from that night, so the Crown asked him to read from his previous statements. Radish recalled both McLeod and Katchuk when they knocked on his door, and Radish said he entered room 209 with both men. So now we have three different versions of how Taylor Radish entered that hotel room. Two of those versions allow no time for Katchuk and his pizza slice to be left alone with

• 47:29Speaker 03

  E M. Taylor Radish told police that he first saw E M under the covers, which were pulled up almost to her neck, and he could not tell whether she had clothes on or not. Katchuk's testimony about seeing E M was basically the same. Radish said E M seemed quite normal. He did not speak to her, he only spoke to Boris and Mikey. Both Katchuk and Radish testified they were only in room 209 for a couple of minutes. Contradictions between them aside, surveillance footage showed Katchuk walking into the lobby

• 48:08Speaker 03

  at 2:23 a.m., and he estimated they were gone by 2:28 a.m. at the latest, which is oddly specific given his other inconsistencies and memory gaps. The judge even noted that Katchuk acknowledged his memory was impacted by the consumption of alcohol and the passage of time. Yet, in that supposed five-minute span, Katchuk says he bumped into McLeod, went with him to room 209, chatted, McLeod offered him a blowjob on E M's behalf, then McLeod left, E M asked flirtatiously for a bite of pizza, McLeod returned with Radish and the three men chatted for a further couple of minutes. That's a lot to pack in to

• 48:53Speaker 03

  Five minutes max. Still, his 2:28 a.m. time estimate was adopted as fact, and Michael McLeod's defence team leaned heavily on it, pointing to surveillance footage showing the next group of players arrived at 2:42 a.m. And that brings us to the so-called fifteen-minute window. The defence argued that E M was alone with McLeod during this window. She could have left, and the fact that she didn't suggests she was waiting for other players to come in. This also ties nicely into McLeod's latest narrative that it was E M's idea to invite them. E M flatly rejected the fifteen-minute theory.

• 49:38Speaker 03

  After consensual sex with McLeod, she says she went to the bathroom, and when she came out naked, she was surprised to see McLeod dressed and on his phone. A short time later, he left, and two unknown men entered the room. Shocked, she said she retreated to the bathroom again. Now, Radish disputed this. While he couldn't remember much, he testified he would have remembered seeing a woman walk into the bathroom naked. But E M disputed Katchuk's testimony about the pizza. She couldn't recall any pizza, or any conversation about it, or anything else.

• 50:19Speaker 03

  This fifteen-minute window was not corroborated by any other evidence than Katchuk's problematic time estimate. And even if E M had asked McLeod to invite his teammates, the leap from "she didn't leave" to "she was waiting for more men" relies on discredited rape myths. A woman not leaving after having sex with one man does not mean she is waiting for more men to enter the room to have sex with. And it's also not proof of anything, it's speculation dressed up as fact. Evidently, Justice Karasir really liked the defence's point, and included it as part of her analysis.

• 51:02Speaker 03

  She describes the fifteen-minute window as though it's the objective truth, and even notes that it is consistent with Michael McLeod's police statement.

• 51:12Speaker 03

  But we've been through Michael McLeod's version of events and how it contradicts hotel surveillance footage. In fact, McLeod does not mention Katchuk or Radish at all in his statement, or having any time alone with EM. Still, the judge noted this 15-minute window was one of EM's memory gaps, even putting "gaps" in quotation marks to infer EM was being deceptive. Meanwhile, Katchuk and Radish had their own gaps in memory, but the judge described them as testifying in a straightforward manner, noting their evidence was "not challenged", and pointing out that EM's evidence was not consistent with it.

• 51:56Speaker 03

  This is another example of how EM's account was cast as unreliable while contradictory or incomplete defence evidence was elevated as credible. After the break, the next group of players enter the hotel room, including Alex Formenton and Carter Hart. Back in a moment.

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• 53:32Speaker 03

  Brett Howden was the next player to enter the hotel room with two additional players. Hotel surveillance places this just after 2:42am. Howden testified that he was looking for food, and the first he saw of EM was her exiting the bathroom. This is consistent with EM’s version of events, that when she emerged from the bathroom a second time, naked, more players were in the room. Howden couldn’t remember whether EM had clothes on or not. He said he recognised her from the bar and was surprised to see her there. About four minutes later, Alex Formenton and Carter Hart arrived with one additional player.

• 54:17Speaker 03

  Howden testified that EM was flirting with the guys, asking them to engage in sexual acts with her, and described her as chirping them or teasing them, and trying to egg them on because no one would take her up on her offer. When asked what her offer actually was, Howden couldn’t recall. He also couldn’t recall any of the words she used, but he said everyone was shocked at how aggressive EM was being. Howden testified that eventually Carter Hart took her up on her offers. He witnessed Carter Hart receive oral sex, followed by Michael McLeod. As for Alex Formenton, according to his police statement,

• 55:00Speaker 03

  he saw Dylan Dubay and Steenburgen in the room when he entered, which is impossible since they weren’t even at the hotel and wouldn’t arrive for another 30 minutes, according to hotel surveillance. Alex Formenton told the police that EM was fully clothed when he first walked into the room, talking to the guys on the bed. She seemed fully normal, not drunk, and he said she was surrounded by chicken wing boxes. We know that’s impossible because the takeout food hadn’t even arrived in the lobby yet, and when the Crown pointed this out, the judge brushed it aside, suggesting: “It’s possible those were there before.”

• 55:44Speaker 03

  It's troubling that the judge suggested this because it's not based on evidence, and it directly contradicts the judge's own reminder to the Crown about that group chat evidence, that inferences have to be drawn from facts, not speculation.

• 56:03Speaker 03

  As a member of the public, with all due respect to the judge, if facts matter, they have to matter for everyone, not just the accused hockey players. When the players' stories don't add up, the judge excuses them. They're drunk, they're having memory issues, the passage of time. In this case, the judge actually supplied the excuse. But EM is simply unreliable, no matter what.

• 56:31Speaker 03

  Speaking of unreliable, hotel surveillance confirms that Alex Formenton and Carter Hart entered the hotel at the same time, but each saw remarkably different things when they walked into room 209. Carter Hart was the only one of the accused who testified. He said Alex Formenton was already in the room when he entered, although he was also feeling pretty drunk at that point. Justice Karasia noted, Hart has gaps in his memory due to the alcohol he consumed and the passage of time, although he was confident in his memory about the things he does remember. Carter Hart said the first thing he saw was Michael McLeod sitting on the bed with his shirt off.

• 57:17Speaker 03

  Then he saw EM naked on a bed sheet on the floor, touching herself. He testified he had no idea how EM came to be there, but she looked like she was enjoying it. And he felt excited because he was 19 at the time and he'd never seen a naked girl willingly doing that before. That's why he responded to McLeod's three-way invitation, he said. He was single and open to sexual encounters. The judge noted Carter Hart's testimony that he was not going to make a decision about participating until he got to the hotel to see what was going on, and that he agreed with the Crown's suggestion that he wanted to make sure that any sexual activity was fully consensual.

• 58:03Speaker 03

  He testified that if he saw anyone being disrespectful or degrading towards EM, he would have stopped or left, and he didn't. Carter Hart testified that some of the men were encouraging each other to have sex with E M. He said he was open to taking her up on one of her offers, but not sex. When asked what her offers actually were, he drew a blank like Brett Houdon did. Carter Hart acknowledged that E M did not offer oral sex. He testified that he said to her, "Can I get a blowie?" and she said something like, "Yeah," or "Sure." So he walked towards where she was on the bed sheet on the floor.

• 58:46Speaker 03

  They mutually pulled his pants down and she started performing oral sex on him, he said. It only lasted about thirty to sixty seconds because he wasn't able to get fully erect and didn't want to do it anymore. Carter Hart testified it was weird. He backed away, pulled his pants up, and returned to where he'd been standing previously. He testified he didn't touch E M's body other than his penis that was in her mouth. Back to Alex Formenton. After seeing E M fully clothed on the bed, he told the police that Carter Hart was talking with her, that they were flirting, and then he watched as E M got on her knees and performed

• 59:31Speaker 03

  oral sex on Carter Hart for about five minutes. That's a little different to Hart's testimony that it only lasted thirty to sixty seconds and he backed off. And Alex Formenton did not mention seeing E M naked on a sheet on the floor until much, much later. Here's him describing what happened next to police in his interview played at trial. After probably about five more minutes of oral sex on her, she said, like, "Is anyone gonna bang me here?" And she was saying, like, "Is anyone gonna do anything to me, or do I have to do it all?" And that's when, you know, like, a bunch of the guys didn't feel comfortable, you know,

• 1:00:13Speaker 03

  getting naked and, um, doing this intercourse in front of people, but, and most of them had girlfriends at that time, so I volunteered, but I obviously didn't want to do it in front of guys. I found that very awkward and weird, so, um, we both walked into the washroom. And that's where we had, uh... Intercourse. Okay, so whose idea, how did you guys decide to go in the washroom? Did you talk about it or? Yeah, it was it was kind of mutual like I said, like, I don't really want to do it in front of the guys. So she walked into the washroom and I followed her after and that was when we had intercourse. Okay, and what what uh what sexual acts happened in the in the washroom?

• 1:00:56Speaker 03

  Um, at the start, I just put on the condom and just had intercourse with it. Near the end of uh the intercourse, I took off the condom and she gave oral sex for finishing.

• 1:01:10Speaker 03

  There's another inconsistency here. Alex Formenton told police that E M walked into the bathroom and he followed her, but that was a mutual decision. Brett Houghton testified that he saw E M take Formenton into the bathroom and that she seemed excited about it. He even remembered Formenton saying something like, should I be doing this? But the Crown pointed out that in his two thousand eighteen statement to Hockey Canada investigator Robitaille, Houghton described it differently. He recalled Alex Formenton asking, will I get in trouble for this? Am I okay to do this? Do you think I'm fine? Houghton said at the time he answered, I don't know.

• 1:01:54Speaker 03

  If she consents and she wants to, then sure. Justice Karasia ultimately accepted Alex Formenton's version, that it was a mutual decision to go to the bathroom. She noted it was consistent with the evidence of all witnesses that E M got up after Mr. Formenton approached and they walked to the bathroom. So which was it? Did E M lead him in? Did he follow her in? Did they go in mutually? In this courtroom, she couldn't even walk into the bathroom without it being read as willingness.

• 1:02:31Speaker 03

  Alex Formenton told the police that after vaginal and oral sex in the bathroom, he got into the shower and E M left the bathroom, still naked. He estimates that he was in the shower for about fifteen minutes, and when he came out of the bathroom, he saw E M performing oral sex on Carter Hart again, while other men were sitting there watching. Still no mention of her being on a bed sheet on the floor. And this narrative that Carter Hart may have received oral sex on two separate occasions was not really corroborated by other evidence, so the judge dismissed it. Alex Formenton told the police he then witnessed E M performing oral sex on Dylan Dubay

• 1:03:16Speaker 03

  for about ten minutes, before she took about a three-minute break. He then watched her crawl up onto the bed and start performing oral sex on Michael McLeod. It was only then, after Alex Formenton witnessed five different sex acts and spent fifteen minutes in the shower, did he mention E M touching herself on a bed sheet on the floor.

• 1:03:41Speaker 06

  What happens after that?

• 1:03:43Speaker 02

  After that, after giving oral sex to Mikey, she was on all fours on the floor of the hotel room saying like, "Is anyone gonna do anything to me?" And that's, at that point, she was playing with herself and saying like, "Is anyone gonna bang me?" Like, this is embarrassing that you have a naked girl in front of you and a bunch of guys in the room and no one's gonna do anything. And that's when pretty much everyone was still, well, effy of doing anything in front of the guys because we found it a pretty awkward situation. And at that point, she started to get a little bit frustrated saying like, "Well, I'm gonna be..."

• 1:04:23Speaker 03

  And put my clothes on if no one's gonna do or anything and stuff like that. So she was getting pretty frustrated about how no one was doing anything. And I think she kind of took it personally as in like, she's not hot enough that um the guys are doing anything. When really it was just the guys that had girlfriends and obviously didn't want to do it in front of each other.

• 1:04:48Speaker 03

  EM seems utterly insatiable. These guys just can't keep up with her. And it's difficult to compare all of this to EM's testimony. Because her version of events was patchy and vague, and she wasn't able to identify any of the men. According to EM, the bed sheet on the floor thing happened after she retreated to the bathroom, then came out naked and found more men in the room that she didn't know. So it happened early on in the two-hour period. She testified she didn't hear them enter, and she was shocked and scared, intimidated. She went and sat down on the bed naked.

• 1:05:30Speaker 03

  She described herself as still drunk from the bar. Her memory blows everything together as one event with flashes here and there, rather than a linear event with separate sexual acts. All of this is common among sexual assault complainants and supported by decades of scientific research. When we're facing a highly distressing or threatening situation, the brain switches into survival mode, automatically activating what's referred to as the defense or fear circuitry. Our bodies are flooded with stress chemicals like cortisol and adrenaline, so it can focus all of its resources into dealing with the situation.

• 1:06:14Speaker 03

  It's an automatic process that happens very quickly, often before you even realise what's going on. This is why in emergency situations, people are often able to do extraordinary things like lift heavy objects, run faster than ever before, or react with split-second precision. But when this fear circuitry is activated, it temporarily impairs the part of the brain responsible for rational decision-making. It limits our ability to think and strategise in that moment, and people might not react the way they or others thought they would.

• 1:06:54Speaker 03

  I'm not just talking about scientific theory here, I've had it happen to me. When I was nineteen, I was driving home alone late one night on the outskirts of Brisbane when headlights came up fast behind me, tailgating. The car kept edging toward the centre lane like it wanted to overtake. It was dark, a single-lane road, and I knew, just up ahead, the lanes diverged to make way for a five-foot-high pile of dirt in the middle of the road. As I slowed and pulled over, the car suddenly gunned it past me, shot up the steep rise in the middle of the road like a ramp, launching the car into the air, flipping it over until it crashed on the other side of the road.

• 1:07:39Speaker 03

  I slammed on the brakes, got out, and found myself leaning against my car door, glued to the spot, watching three young men scramble out of the wreck as steam hissed from the engine. No one else was around. I'd like to think I would have run over and helped them, but I didn't. The thought didn't even occur to me. After what felt like forever, but was probably only about thirty seconds, another car pulled up and the driver yelled at me to call emergency services. That snapped me out of it. I have little memory of what happened after that. All I remember is a bunch of other people showing up and firefighters telling me to wait for the police.

• 1:08:24Speaker 03

  The young men survived, and they later sued the city council for lack of signage, with my support as witness. But I spent years feeling shame and berating myself for being such a coward. Why didn't I move? Why didn't I help? Years later, when my daughter spilled a hot drink on herself, I acted instantly, and in that moment, I let myself off the hook. I know now I wasn't choosing to freeze or be a coward. It was automatic and beyond my conscious control. Freezing effectively puts us into a state of vigilance as the brain scans the environment to assess the threat and look for a way to survive it,

• 1:09:07Speaker 03

  according to a 2019 report for Justice Canada by experts Laurie Haskell and Melanie Randle. And this is exactly the same thing that happens to sexual assault survivors. Freezing is often the first response, followed by other responses like going limp, disassociating or going on autopilot. More often, it defaults to habit, based on survival strategies learned earlier in life, skills picked up in playgrounds or in childhood conflicts. Some habits can be active, like pushing back or running away. But in sexual assaults, when a victim is in survival mode, the habits that tend to surface are passive ones.

• 1:09:53Speaker 03

  For many women, these habits come from lifelong socialisation. Girls are taught to say no politely, to defuse aggression without causing offence, to placate someone who holds power, to quietly endure unwanted attention rather than risk anger or retaliation. For some survivors, deeply ingrained patterns of submission can also resurface under threat. And women know all too well what happens when they do say no. We've all been met with hostility, insults, gaslighting, "I never wanted you anyway." We're called frigid, boring, a tease, a party pooper. And we've all seen the violence that can happen when rejection escalates, when men

• 1:10:38Speaker 03

  decide they're entitled and they take what they want with force anyway. Those are the cases that fill courtrooms and news headlines, including many we've covered on this podcast before.

• 1:10:51Speaker 03

  Smiling, going along with it, saying polite things, or appearing to cooperate, or even perform, may look like consent from the outside. But studies show it's often because the brain has reached for the most familiar tools it has to survive a perceived threat. And that is why trauma responses might look different from person to person, because it's so based in a person's individual life experiences and habits. And these trauma responses are not designed to stop a sexual assault. They're designed to protect the person from escalating harm so they can get out of the situation and survive it. When the brain's defence circuitry activates during perceived threat or trauma,

• 1:11:36Speaker 03

  everything changes: thinking, memory, attention, even how the body responds. It shapes not only how they find themselves reacting in the moment, but how they remember the incident afterwards. Many people, including sexual assault complainants, often have memory gaps and struggle to recall details. They might give statements that sound inconsistent, delay reporting, or even blame themselves. They might also minimise or hide the survival behaviours they used at the time, out of shame. To someone unfamiliar with the decades of scientific research showing how traumatic experiences physically alter the brain,

• 1:12:19Speaker 03

  these reactions might look confusing or unreliable. But in fact, they're often predictable, normal ways the brain copes with overwhelming fear and life-threatening events.

• 1:12:38Speaker 03

  E M agreed that no one took her clothes off or forced her to undress, and she couldn't explain why she didn't return to the bathroom and put her clothes back on. She said she wasn't thinking clearly, it's just how her body responded to the situation. She testified the players told her to get down on the floor and touch herself. She said no, using the excuse that the floor was dirty, a passive way to resist. So a bed sheet was laid on the ground instead. E M couldn't say which player put the sheet there, and their testimony suggests it just appeared on the floor and she was on it. And even though EM's account is patchy,

• 1:13:23Speaker 03

  it overall paints a vivid picture of a woman who felt vulnerable, intimidated and outnumbered by elite athletes who were amped up after celebrating a big championship win. "So she got down on the floor like they said. Once she was on the sheet, the men crowded around her, above her. They were talking loudly and joking with each other, telling each other what to do and telling her what they wanted to see her do. The room was chaotic," she said. She remembered penises being put in her face, being told to suck it and spit on it. In amongst the blur, she heard comments like "no phones" and "put the phones away",

• 1:14:06Speaker 03

  and worried they might be recording her. At that moment, her instincts told her that the only way to get out of the situation was to give them what they clearly wanted, which seemed to be a porn scene. She agreed she adopted a porn star persona as a way to get through it. In her words, "That felt like the role they were kind of forcing me into, and unless I was doing what they wanted, I didn't feel like I was going to get out of there."

• 1:14:38Speaker 03

  So EM complied. She performed oral sex on three of them, though she couldn't recall every detail of how it started or who they were. She described herself as numb on autopilot, sometimes doing things without being told, just to get it over with. She acknowledged she may have looked like she was consenting. She even found herself liking the attention at moments, a small, confusing silver lining. "After all, part of our culture is the idolization of professional athletes, to want to be in their presence. But underlying the persona she'd created to get through it was a baseline of fear," she said.

• 1:15:22Speaker 03

  EM testified that in her own mind, she didn't want to be doing any of it. She went along only because she didn't see another option, and she was afraid of how the men might react if she said no or tried to leave.

• 1:15:38Speaker 03

  Many people struggle to understand why E M reacted the way she did, including E M herself. She was hesitant and often confused when describing what she remembered and how she responded. She said it took years to process what happened. This is a common theme with sexual assault complainants. They often feel shame, blame themselves, or question whether what happened was even a crime. They also worry their reactions won't be seen as credible because society has been conditioned to refer to historic rape myths of what a real or perfect victim will do. And despite those myths being discredited by decades of research

• 1:16:21Speaker 03

  and rape shield laws enacted to prevent them being a part of sexual assault trials, they still are. That's why sexual assault remains the most under-reported crime in Canada, with only about 6% ever reported to police.

• 1:16:39Speaker 03

  The defence tried to spin E M's behaviour as her instigating everything, pressuring the men to have sex with her when they clearly didn't want to. Defence lawyers suggested E M taunted them when they didn't join. The judge noted that many of them said they heard her saying, "Come on, you guys are pussies." E M denied being the sexually aggressive one, and said that didn't even sound like how she would usually speak. But she did agree that she might have said, "Someone have sex with me", and she also might have come across as angry or frustrated because she wanted to leave, and it seemed that the only way she could leave was after they were satisfied.

• 1:17:23Speaker 03

  She acknowledged she may have given the appearance of consent, but only because she was forcing herself into a role she thought would keep her safe. She was doing what she thought she had to, so she could get out. A common question that came up as a result of this trial is: How are those players supposed to know the difference between real consent and compliance, submission, or fawning? The truth is, it isn't hard at all if there's genuine care and respect for the other person's comfort, agency, and mutual enjoyment, instead of just focusing on personal satisfaction and what someone can get away with.

• 1:18:04Speaker 03

  More specifically, it means asking clearly and plainly before anything happens. Are you sure you want this to happen? Are you okay with someone else joining? Consent to one act isn't consent to another, and consent to one person is not consent to two, or three, or more. Every participant needs their own clear, verbal, enthusiastic yes before every sex act. If there's hesitation, silence, stiffness, crying, if they're laughing nervously, emotionally, or overperforming, those are red flags. So too if it's known they had a lot of drinks or that they appear not to have the capacity to consent.

• 1:18:48Speaker 03

  And it's not a one-and-done, it can be withdrawn at any time. So the bigger question is: Did they feel free and safe to withdraw their consent? Or were there red flags like power imbalances that may present a perceived threat to that? A lot of pressure to say yes comes from societal expectations based on who has the power or status. From the time we're kids, we're taught to defer to authority, teachers, coaches, adults who hold sway over us. Then there's social status. When someone is celebrated, when they're part of a winning sports team, a famous musician, someone who can give us a job, or just when they're the guy everyone knows and admires,

• 1:19:33Speaker 03

  that status alone can create pressure. People say yes because they feel like they can't afford to say no.

• 1:19:42Speaker 03

  So now picture the power imbalance in this case. One young woman confronted with up to 10 elite hockey players, testosterone surging, adrenaline high, and a culture that's told them they can do no wrong, that they're a gift to others. That's not a level playing field. Which is exactly why the onus falls on those in positions of power or status to go above and beyond the norm to make sure those aren't factors in what appears to be consent. But it seems that for these hockey players, and many more in that same position, they only equate their power and status with rewards, not responsibility.

• 1:20:24Speaker 03

  The adults in their lives, from coaches to parents and agents, the entire hockey establishment are focused on producing NHL stars. Training sessions and performance stats come first, seemingly at the expense of building good moral character. And when that happens, this is the result. It's a shame, and not just for any girls or women they come into contact with. Because even though they've been found not guilty, there's a stain on them now. And that shame doesn't just belong to them. It belongs to the entire system that raised them that way.

• 1:21:07Speaker 03

  The very existence of those two so-called consent videos demonstrates a really shallow understanding of consent and a complete lack of care or compassion for EM. Consent isn't just a checklist. A video doesn't prove it, neither does a smile. Real consent is unmistakable. It's enthusiastic, ongoing, and freely given. If Michael McLeod really believed EM was giving enthusiastic consent to each act and each person of her own free will, why did he try to hide the three-way invitation he sent in the group chat? Why did he shift the timeline to make it revolve around a food delivery?

• 1:21:51Speaker 03

  And why did he join another group chat to coordinate their stories? All of it points to the same reality. EM's wellbeing was never considered.

• 1:22:15Speaker 03

  In the written decision, Justice Karasier acknowledged that the evidence of each of the witnesses has gaps, and noted that their evidence has been impacted by the passage of time and the consumption of alcohol. E M was a witness too, but it's clear the judge did not include her in this summary, instead outlining a number of concerns related to the credibility and reliability of her evidence. The judge pointed to the “overwhelming evidence that E M was acting sexually forward, masturbating in front of the men and, according to some testimony, asking them to have sex with her. She was the instigator, the aggressor.”

• 1:22:59Speaker 03

  The judge acknowledged that this didn’t prove consent, but it did show E M was willing to engage in sexual activity. The judge noted that E M couldn’t remember if anyone said anything to her, or how the oral sex started. This left the judge with reasonable doubt about E M’s evidence. To assess whether E M consented to these and other sexual acts, Justice Karasier leaned heavily on circumstantial evidence of her demeanor, most notably the first so-called consent video. The judge pointed out that E M admitted she did not know the video was being recorded, and was not acting for the camera.

• 1:23:41Speaker 03

  In other words, it could be considered an accurate representation of her demeanor at the time. The first consent video was filmed at 3:25 a.m., about 40 minutes after Carter Hart and Alex Formenton entered the hotel room. This video was just six seconds long, and the judge described it as showing E M smiling, speaking normally, not appearing intoxicated or distressed or fearful. A male voice established to belong to Michael McLeod asks if she’s okay with this. She says “yes.” He asks again, and she replies “yeah, I’m okay with this,” while wiping her eye with the back of her hand.

• 1:24:25Speaker 03

  Em had already testified that she was crying in room 209 at some point, and Brett Houghton corroborated this, telling the Hockey Canada investigator that he heard her crying or weeping as he left. When Em was asked why she was wiping her eye in the clip, she testified the video was likely taken after she had been crying. The judge dismissed that, writing: "She said she may have been crying, but in my view, that evidences speculation on her part, given she has no memory of the recording being made or what was happening at the time."

• 1:25:06Speaker 03

  This logic seems a little twisted. So when Em is smiling, the judge considered the video reliable evidence of her demeanor, but the moment there's a hint she might have been in distress, it's dismissed as speculation. And besides all that, the judge's conclusion relies on rape myths. It was acknowledged that the consent video couldn't be used to establish consent, but still, the judge used it as, "circumstantial evidence as to the manner in which Em was behaving." Em had testified about a survival strategy that amounts to fawning or appeasing to get out of the room safely, but that was dismissed.

• 1:25:51Speaker 03

  Instead, the judge treated it as proof that Em was being sexually forward and expressing her willingness to engage in sexual activity, pointing out the testimony of the other men that Em was the aggressor and a willing participant. So what about the impact of trauma and everything we've just gone over, the decades of scientific findings? Why does it seem like it wasn't considered in this case even once? We'll get to that in the next episode. In the end, the players were given the benefit of the doubt, while Em was judged against discredited rape myths and stereotypes about how a real victim should act.

• 1:26:38Speaker 03

  Remember the group chat and the Crown's argument that it showed the hockey players getting their story straight and colluding to portray EM as the aggressor? The Crown's point can be seen clearly when going through all the various statements and testimony. Howden saw EM come out of the bathroom and he couldn't remember if she was naked or clothed. Alex Formenton arrived four minutes later and he said he saw EM fully clothed, sitting on a bed, surrounded by chicken wing boxes that couldn't have been there. But Carter Hart, who entered at the same time, testified he first saw EM lying naked on a sheet on the floor, and he said when he went over for EM to give him oral sex,

• 1:27:23Speaker 03

  he was standing and she was on her knees, which is consistent with other testimony. Michael McLeod gave yet another version. He told police that Carter Hart came into the room before the takeout food arrived, and when he returned with the food, he observed Carter Hart laying on the bed on his back while EM performed oral sex. Surveillance footage showed Michael McLeod picking up the food about 15 minutes after Carter Hart and Alex Formenton arrived in room 209. The next group of players arrived a further 15 minutes after that, at 3:13am.

• 1:28:03Speaker 03

  Those players include Dylan Dubay, one of the accused, and Tyler Steenburgen, a witness. Dylan Dubay told the police that he first saw EM lying naked on the floor, and he did not know what was going on. She put her clothes back on, complaining that no one would do anything. Carter Hart volunteered. According to Dylan Dubay, EM started taking her clothes off again by herself and laid back down on the floor. Then she got on her knees and started performing oral sex on Carter Hart. Hard to follow, but that's what Dylan Dubay told the police. Tyler Steenbergen entered room 209 at the same time, but his version of events was

• 1:28:48Speaker 03

  completely different. He heard someone say, "There's a naked girl in the bathroom." And a few minutes later, he observed EM come out of the bathroom naked. Then she went to the bed sheet on the floor and started touching herself. "All on her own, no one asked her to," he said. Then Steenbergen witnessed Carter Hart go over to EM, unbuckle his belt and pull his pants down to his knees, although he said EM might have assisted with that. Steenbergen testified EM seemed into it when she was performing oral sex on Carter Hart. About 15 minutes after he entered room 209, the fifth accused player, Callan Foot, arrived,

• 1:29:31Speaker 03

  performed the splits and left. But Steenbergen also maintained he himself was only in the room for 10 to 15 minutes total. The math doesn't work. Despite trying to get on the same page about telling the truth, none of these guys can get their story straight. Dylan Dubay didn't testify, but he told police that after EM was finished giving oral sex to Carter Hart, he decided he may as well too. His police interview wasn't an in-person one, so the recording was audio only. Here's what Dylan Dubay said happened next.

• 1:30:10Speaker 05

  I pulled my pants down and she came up to me and she didn't, like she gave me oral, I guess you could say, for probably, I'd say 10 seconds maybe.

• 1:30:23Speaker 03

  Alex Fomenton told the police he watched Dylan Dubay receive oral sex for 10 minutes. Quite the discrepancy. Moving on.

• 1:30:32Speaker 05

  And then I kind of knew it was a bad idea and I didn't want to be a part of it. So I kind of stumbled back and kind of rolled over in between the middle of the bed and I remember I was with Callan Foot and I said, you know, to help me up. I was drunk at that time and it was later than night, I wanted to go to bed anyways.

• 1:30:49Speaker 03

  Dylan Dubay said that after Callan Foot helped him back up, he pulled up his pants and they exited room 209 together. But there's one thing that Dylan Dubay did not mention to the police, something the defence described as minor, but ended up being one of the most talked about pieces of evidence at trial and the second reason Dubay was charged with one count of sexual assault: the alleged slap. EM testified that while she was performing oral sex on one of the men, she felt slapping on her butt that she did not consent to. She recalled multiple men taking turns trying to hit her as hard as they could.

• 1:31:32Speaker 03

  "It started to hurt," she said, "and she told them to stop it."

• 1:31:41Speaker 03

  That's coming up in part four, the final part, I promise, along with the splits involving the fifth accused player, Callan Foot. We'll unravel the dumpster fire testimony of the most controversial Crown witness, apart from EM of course, Brett Houghton, portrayed as a pitiful conflicted soul, a hostile witness who testified wearing an olive hoodie and dishevelled hair. The Crown accused him of faking memory loss and defence lawyer Megan Savard responded by describing him as "plainly unsophisticated, inarticulate and generally useless to the defence." Then we'll go into the judge's verdicts,

• 1:32:23Speaker 03

  the legal conclusion about what happened in room 209 that night. We've already gone through most of it as we went through all of the evidence. And finally, our moral conclusion. Part four will be available soon. Thanks so much for your patience with this deep dive series and for allowing us the time to give it the attention it deserves. If you want to dive into the sources, the judge's written decision is publicly available and you can find a link to that, The Junior Hockey Bible, the Peter Wall documentary about hockey parents and all our other sources in the show notes. If you found this series compelling, we'd love for you to tell a friend,

• 1:33:04Speaker 03

  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 soon with part four, the final part. See you then.

• 1:34:00Speaker 03

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