Surviving the Hockey Canada trial [1]

[Part 1 of 5] A special five-part series — Two extraordinary guests join Kristi to take you through one of the biggest scandals in Canadian sports history. They know what it means to survive not only sexual assault - but the trial itself. And you probably know their stories: J. B. - aka the "Ottawa woman" https://www.cbc.ca/news/entertainment/hoggard-trial-decision-1.6474833 who testified against former Canadian musician Jacob Hoggard https://www.canadiantruecrime.ca/episodes/122Kelly Favro - survivor and advocate from British Columbia https://www.canadiantruecrime.ca/episodes/130 who helped re-write Canada's publication ban laws. As the country reacts to the Hockey Canada trial verdicts delivered last week, J. B. and Kelly share what they saw unfolding, how it mirrors their own experiences, and what the public needs to understand about what victim-complainant “E. M.” may be living through. They also share eye-opening details about shocking courtroom tactics they've endured, and challenge us to rethink what justice really means. *Additional content warning: While not the focus of this episode, there is mention of graphic details of sexual acts, and suicidal thoughts. Please take care when listening. More information and resources: LISTEN: Kelly Favro’s Story https://www.canadiantruecrime.ca/episodes/130LISTEN: The Trial of Jacob Hoggard https://www.canadiantruecrime.ca/episodes/122 (JB)RESOURCES: If 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 http://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.

• 0:00Speaker 00

  Canadian True Crime is a completely independent production funded mainly through advertising. You can listen to Canadian True Crime ad-free and early on Amazon Music included with Prime, Apple Podcasts, Patreon and Supercast. The podcast often has disturbing content and coarse language. It's not for everyone.

• 0:17Speaker 01

  An additional content warning. While not the focus, there is brief mention of graphic details of sexual acts and mention of suicidal thoughts. Please take care when listening.

• 0:35Speaker 01

  Hi there. I hope you're well and that you're enjoying the summer. Today, we're bringing you a special two-part series about the recent Hockey Canada trial, an explosive case involving allegations that multiple members of Canada's 2018 World Junior Hockey Team engaged in a group sexual assault of one woman in a hotel room. The grueling trial sparked national debate about how the criminal justice system treats sexual assault survivors. And last week, when we learned that all five accused had been found not guilty by a judge, the public response has only intensified. I want to be clear, this case was not black and white.

• 1:18Speaker 01

  It's far from straightforward with ambiguities and inconsistencies on both sides. And the public reaction hasn't so much been about disagreeing with the verdicts, but how the judge got there, who she focused on, and the reasoning she gave. The verdicts have raised questions about the difference between a legal conclusion and a moral judgment. It showcased the limits of our justice system in handling uniquely intimate cases like sexual assault, especially when they involve power, privilege, and intense public scrutiny. And that's where our two special guests come in. Both are sexual assault survivors who know from personal experience what it means to

• 2:02Speaker 01

  not just survive the assault, but the trial itself. And they bring a powerful firsthand perspective to this conversation. I also found out that they are both diehard hockey fans as well, which adds another layer to this. There's a reason we so rarely hear from sexual assault survivors themselves. They're often silenced by shame, fear of retaliation, publication bans, and more.

• 2:32Speaker 01

  But not today.

• 2:40Speaker 02

  Because we are Canadian, we do see hockey as our game. And this is kind of like shaking all of us to our core. Something deeply wrong happened in that room. And whether or not it met the legal threshold for criminal conviction, it still reflects a culture that protects powerful men and punishes those who come forward.

• 3:00Speaker 03

  People are like going to bat for these men. It's like, they don't know you. They don't care about you. It's just, it's so strange to me to see strangers talk about other people's sexual assault. 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.

• 3:18Speaker 02

  When people say, well, she said it was consensual. It's like they're talking about consent like it's a one and done checkbox. Like it's just a word that you say. But real consent isn't just about what someone says. It is about whether they were free to say no.

• 3:35Speaker 03

  I was constantly ridiculed. Why didn't you just leave? If he ordered room service, why didn't you scream? You don't know how you're going to act in a terrifying situation until you're in it.

• 3:46Speaker 02

  So he admits to hearing her weeping and upset. And then he's like, I thought she was upset because no one wanted to have sex with her. Like, are you kidding me? It reduces her to someone whose only motivation has to be male attention. And it's textbook rape myth thinking. The kind that says women always want it. And if they cry, it's just because they're pissed off that they didn't get what they were asking for. And again, the court gives him a pass.

• 4:08Speaker 03

  Unfortunately for women, we never have the benefit of the doubt. We are always lying and then we have to prove that we're telling the truth.

• 4:16Speaker 02

  Nobody cares that we are a victim. We are a witness to our own crime. That's it. All of us need to stop asking, why didn't she? And start asking, why did he?

• 4:27Speaker 03

  Who in their right mind would agree to take part in the legal process? When it comes to sexual assault, when this is the outcome and this is what you see.

• 4:35Speaker 02

  We don't just survive the assault. We survive the justice system too.

• 4:40Speaker 03

  The trial was the worst part. Now I don't even think about the assault anymore. When I have nightmares, it's I see his defense lawyer's face and how. Cruel she was to me. It's a tactic. I think it's something that they do. They want to break you down to the point where you will accept everything that they say.

• 4:57Speaker 02

  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. We will call you unreliable, emotional, mentally unwell and dramatic.

• 5:09Speaker 03

  If I knew what I was in for, I wouldn't do it. I wouldn't do it over again. I got the outcome that everyone wants. I had people telling me like, oh, wow. A five year sentence is amazing. And I was going to court for longer than five years.

• 5:22Speaker 02

  So when people ask, well, why don't survivors come forward more often? I'm just going to start gesturing broadly at the hockey Canada trial because this is your answer.

• 5:35Speaker 01

  All proceeds from this series will be used to support a survivor-led advocacy initiative called beyondtheverdict.ca. We'll be back in a moment.

• 5:48Speaker 04

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• 7:32Speaker 01

  My first guest is still under publication ban, but you might know her as the Ottawa woman from the first trial of disgraced musician Jacob Hogard of the band Headley. In our series covering that trial, we referred to her as Emma. But today, she is JB, per the court documents. She testified that she matched with Hogard on Tinder during We Day in Ottawa in 2016, an event she volunteered at and he performed at. Hogard paid for her to visit him in his hotel room two weeks later for consensual sex. Instead, she was subjected to what the trial judge would describe as a particularly degrading rape.

• 8:16Speaker 01

  Hoggard was found guilty on JB's charge, but not guilty in relation to the other younger complainant at that first trial, known as MB.

• 8:29Speaker 01

  Today, JB is speaking out publicly for the first time about her experience at a high-profile sexual assault trial and the many parallels to the Hockey Canada trial. She will share some behind-the-scenes details about her brutal cross-examination by defence lawyer Megan Savard, who also happens to be representing Carter Hart, one of the accused in the Hockey Canada case.

• 8:56Speaker 01

  So hello to the wonderful and brave JB, joining us from Ottawa.

• 9:02Speaker 03

  Hi.

• 9:03Speaker 01

  How are you today?

• 9:04Speaker 03

  I'm alive.

• 9:09Speaker 01

  The other voice you can hear belongs to Kelly Favreau. We've covered her story too on this podcast. After surviving a harrowing two-hour sexual assault and trial, Kelly became the first person in British Columbia to self-represent and have her own publication ban lifted. She then co-founded My Voice My Choice, a survivor-led advocacy group that successfully lobbied the government to change Canada's publication ban laws. Kelly is now a seasoned advocate and a force for change. Kelly Favreau, welcome back.

• 9:46Speaker 02

  Hey Christie, good to see you again. Thank you so much for having me talk about this. This is really important. Thank you.

• 9:53Speaker 01

  Thanks for being here. How are you feeling?

• 9:55Speaker 02

  Uh, not melting like you folks are in Ontario, so I'm doing pretty good right now.

• 10:01Speaker 01

  Yeah, it's been just one heatwave after another here. It's ridiculous.

• 10:05Speaker 02

  Yeah, I'm enjoying my 21 degrees here. I'm happy as a clam.

• 10:10Speaker 01

  Editor's note: The next day, Kelly lives on Vancouver Island and is currently facing a tsunami warning. Hopefully, the threat has passed by the time you're listening to this episode.

• 10:24Speaker 01

  Today, JB and Kelly are here to give a survivor's perspective about the Hockey Canada trial and what the public needs to understand about what victim complainant EM may be living through. They also share eye-opening details about shocking courtroom tactics they've endured, and they challenge us to rethink what justice really means. Later in this two-part series, we'll explain how we connected and how what we saw unfolding in the Hockey Canada trial motivated us to start our own advocacy group. The group is called BeyondTheVerdict.ca, and we're aiming to push back on aggressive defence tactics and sexual assault trials

• 11:08Speaker 01

  and challenge the rapists and stereotypes that continue to be a primary feature. As a kind of disclaimer, none of us are lawyers. We're just members of the public trying to make sense of a complicated case. And we're doing that through the lens of the open court principle, which holds that court proceedings should, by default, be open to the public. And that openness matters because it gives all of us a chance to ask questions, have conversations, and hold the system to account. But first, let's lay out the background to this case. It all began in June 2018, when a 20-year-old woman known as E.M. met Michael McLeod,

• 11:52Speaker 01

  then a member of Canada's 2018 junior hockey team at a bar in London. He was in town with his teammates for a Hockey Canada gala event to celebrate their recent world championship win. There were drinks, dancing, and flirting at the bar. And at about 1:30 a.m., E.M. and McLeod left to have consensual sex back in his hotel room, the same hotel where his teammates were staying. What allegedly happened next set off one of the biggest scandals in Canadian sports history, although no one would know about it for several years. We now know that within days, E.M. reported to the London police with her mother,

• 12:37Speaker 01

  who'd found her crying in the shower, and her mother's boyfriend told someone he knew at Hockey Canada. E.M. says she had consensual sex with McLeod as they planned. That part of the night is not in question. The issue that would later turn into criminal charges is what happened after that consensual sex. There's a lot of nuance and context that we'll go over later, but here's a very, very high-level summary of the case. E.M. alleges that after consensual sex, she saw Michael McLeod on his phone, and shortly after that, his teammates started entering the hotel room without her knowledge or consent.

• 13:21Speaker 01

  Around 10 junior professional hockey players, all aged around 19 and 20. E.M. alleges they were making suggestions of a sexual nature, and over the following two hours, she says she was pressured to perform sex acts on multiple players while others watched. She says she complied to get through it and keep herself safe. According to the hockey players, they only came to the hotel room because they thought there was food there. Instead, they say they found E M offering them sexual favors, begging them for sex, and taunting them when they wouldn't. They say E M was the aggressor, and they basically shrugged, saying it was a weird situation.

• 14:05Speaker 01

  But some of them took her up on her alleged offers because, why not? They say she was a willing participant. The London Police conducted an initial investigation that has since been described as flawed. We'll get to that later. They closed the case without charges. Now, the incident in question happened in 2018, but the public did not hear about any of it until 2022, when T S N reported that E M had filed a lawsuit against Hockey Canada. And the sports organisation had quickly settled it with an undisclosed amount, without notifying any of the hockey players involved.

• 14:50Speaker 01

  It also came to light that Hockey Canada had a secret fund that was used to pay the settlement, bankrolled with player registration fees. And since 1989, that secret Hockey Canada fund had settled nine other cases related to sexual assault and abuse claims within the sport, paying out more than $7.5 million total. It appeared that Hockey Canada had set up a process that prioritised their players staying on the ice over transparency, accountability, or justice. And this new information ignited national uproar and public fallout.

• 15:30Speaker 01

  Major sponsors pulled out, executives resigned, and the phrase "toxic hockey culture" made headlines across the country. Earlier this year, it was announced that the police had charged five former World Junior Hockey Team players with sexual assault. Michael McLeod, by that point with the New Jersey Devils. Cal Foot, also with the Devils. Carter Hart, with the Philadelphia Flyers. Dylan Dubay with the Calgary Flames. And Alex Formenton, who had played with the Ottawa Senators but was playing professionally in Europe. Michael McLeod was also charged with being a party to sexual assault.

• 16:12Speaker 01

  All men took leaves of absences from their respective teams and pleaded not guilty when the trial began in April of this year. It's been one debacle after another. After a mistrial and a second jury discharged after jurors accused the defence lawyers of belittling the jury, Justice Maria Karasier announced the trial would be a judge-alone one. It went for eight weeks. And what we saw take place in that courtroom looks like a cautionary tale, a warning to any sexual assault survivor who dares to speak out, especially when powerful institutions are involved.

• 16:53Speaker 01

  After testifying for two days, the country watched as EM faced seven days of invasive cross-examinations from not just one lawyer, but five different defence teams. Their arguments shaped by harmful and outdated rape myths and stereotypes. EM mostly maintained her composure, but she broke down into tears on one occasion as the defence portrayed her as someone seeking a wild night, that she was not only a willing participant, but the aggressor, and that she later fabricated a story because she was embarrassed and full of regret. After closing arguments in June, the judge took a month to decide on the verdicts.

• 17:38Speaker 01

  Remember, there was no jury. And Canadians were talking about it around kitchen tables, in hockey rinks, locker rooms, in classrooms, coffee shops and comment sections. Some discussed whether it was a criminal case or a case of morally reprehensible behaviour. Diehard hockey fans defended their idols and shamed the complainant. Other fans, including women, questioned if this is a culture they still want to support. National athletes are supposed to be our role models. And guilty or not, there was a clear absence of leadership and moral character in that hotel room that night.

• 18:19Speaker 01

  And what made the whole thing worse was the evidence that Hockey Canada tried to cover it up without even telling the players, let alone giving them an opportunity to respond or take accountability. You know who else has been watching? Sexual assault survivors. According to multiple media reports, some rape crisis centres had reported spikes in calls since the trial began. Survivors have once again witnessed a criminal justice system that demands everything from complainants and gives almost nothing in return. Because before the verdicts even came in, the message was clear. If you speak up, you will be punished in the courtroom.

• 19:05Speaker 01

  Last week, Justice Maria Karasier found all five players not guilty on all charges. It's notable that she read out a 90-page decision, which is rare, taking more than four hours to deliver her verdicts. And what's also notable is that she opened by stating plainly that, quote, "I do not find the evidence of EM to be either credible or reliable."

• 19:35Speaker 01

  It was, as one legal analyst put it, the worst possible outcome for EM. The judge didn't just find that the Crown failed to meet the burden of proof, which is guilty beyond a reasonable doubt. She went a step further and explicitly said she believed the version of events put across by the accused men and their teammates. And her comments towards EM were scathing. So I want to say, EM, if you're listening, on behalf of JB, Kelly and I, we commend your courage and resilience. Your willingness to testify is an act of strength that deserves respect and support. We stand in solidarity with you and all survivors who choose to come forward.

• 20:21Speaker 01

  Because if you don't, we really can't blame you. The criminal justice system is failing complainants. These trials and the aggressive defence tactics designed to break a complainant down on the stand are eroding trust in the justice system and ultimately deterring others from reporting sexual assaults. And that's a big problem because survivors don't need any more reasons to be deterred. When staying silent feels safer than seeking justice, we should all be asking, who is the system really protecting?

• 20:59Speaker 01

  So today JB and Kelly Favreau are here to provide the perspective of a survivor.

• 21:07Speaker 01

  Okay, so I'm seeing a lot of comments that say that justice was served. And I saw one news outlet describe the verdict as a resounding vindication for the hockey players. And I know both of you have very strong feelings about these kind of comments. Kelly, we'll start with you.

• 21:25Speaker 02

  So I think it's important to recognize that the judge's verdict is a legal conclusion and not necessarily a moral one. And that's based on strict rules of criminal law, and that demands proof beyond a reasonable doubt. But moral conclusions ask for something different. It'll ask us to take a look at the bigger picture, the power dynamics, the coordinated group chats afterwards, the very coordinated group chats afterwards, the contradictions in testimony across the board, and ultimately, the way that the complainant was treated on the stand. So our moral conclusion will ask, what does it say about us? What does it say about our culture? Something deeply wrong happened in that room.

• 22:06Speaker 02

  And whether or not it met the legal threshold for criminal conviction, it still reflects a culture that protects powerful men and punishes those who come forward. And if we stop questioning that simply because a court delivered a verdict, then we're complicit in this happening again.

• 22:23Speaker 03

  Yeah. JB? It's hard to follow, Kelly, oh my god. I know a lot of people are celebrating the verdict, but for me, it just feels like we're being set back. It's so similar to the verdicts in my trial, how the threshold was met for me, but not for the other complainant, MB, when our evidence was virtually the same, and we had two completely different outcomes. And I know everyone questioned why one was guilty and one wasn't. In my trial, I was very open about the fact that I went there to have sex with him, and that's not, you know, it ended up being very different than that.

• 23:08Speaker 03

  But I feel like a part of this was slut shaming. And they're just trying to paint women as, okay, well, if you say yes to this, then you say yes to this, this, this, and this. Where in my trial, they actually believed me, and I feel like this is a regression.

• 23:26Speaker 03

  Kelly, I'm sure you're feeling the same way.

• 23:29Speaker 02

  Yeah, so I mean, I lived through a trial too. Mine wasn't high profile, but it still sucked. Everything that EM is going through has reopened a lot of old wounds. It felt so familiar. If you're a survivor watching this unfold, you know what that feels like in your bones. And you recognize that the courtroom is built to test you until you crack. And then use that crack as proof that you were never credible to begin with. So survivors, we don't just survive the assault. We survive the justice system too. We then have to deal with those who blame us, those who don't believe us, and then accept that we'll never get justice.

• 24:07Speaker 03

  It's just, it's crazy to me that like after all of these years, my trial was now three years ago. It's the exact same thing. And Kelly, your trial was how many years ago?

• 24:18Speaker 02

  2016. So yeah, we're rounding nine years.

• 24:21Speaker 03

  Nine years, yeah. And nothing has changed. It's the exact same. The words that they use. I mean, obviously, one of the defense lawyers was the same. Ms. Savard used the exact same language, which is funny because I, I had no idea that she was the defense lawyer. And I'm reading like live tweeting, which is the same thing they did during my trial. And I was reading it and I was like, this is so similar. And then I realized it was her. And that's when it hit me that it was so similar and that nothing has changed in three years.

• 24:53Speaker 01

  It seems like things are actually getting worse.

• 24:57Speaker 02

  They're, they're, they're not headed in the right direction. That's for sure. It's, it's a very, it's a very emotional trial, I think, for a lot of people. And I think it's an emotional trial for a lot of really wrong reasons. And I think those reasons tie into, because we are Canadian, we do see hockey as our, as our game. And our boys can never do anything wrong. And, you know, our boys are on the top of the world. And this is kind of like shaking all of us to our, to our core. When we found out about the rainy day rape fund, as I like to call it, that Hockey Canada had, that set a lot of people off. It cost federal money that was going towards Hockey Canada was gone.

• 25:39Speaker 02

  Sponsorships were gone. Like, I think they pissed off Tim Hortons enough to make them lose their sponsorship. Like, you know how bad you gotta be to piss off Tim Hortons? But because they ended up losing so much and they were in the public eye for so long, it's forced everybody to take a really hard look at this.

• 26:02Speaker 01

  So let's do that right now, starting with why the London police initially closed the case without charges. The trial revealed that the detective assigned to investigate the case after E M came forward focused almost solely on whether she had the capacity to consent to what has been described as group sex. In other words, was she too intoxicated to consent that night? But Michael McLeod showed the police two short videos that he said were proof that E M consented. More on those later. The detective used those videos to form a conclusion that not only was E M not intoxicated,

• 26:44Speaker 01

  but that she was displaying a, quote, "certain level of consent" simply by participating in the acts that were occurring in the room without resisting. The detective concluded the sexual acts were all consensual, despite legal definitions that require consent to be clear, specific, and present at the time of each act. There's no such thing as after-the-fact consent. In an interview months later, the detective did have one question for Michael McLeod. What was the reason all those professional hockey players suddenly flocked to his hotel room? Here's a clip from that interview, released as part of the trial.

• 27:25Speaker 06

  Do you get the sense that guys are coming because, you know, there's a naked girl in the room who's doing sexual favors for people?

• 27:37Speaker 06

  I mean, like, I don't know how guys kept showing up, because I don't remember, like... Well, I know everybody has phones and devices and this thing. She's like, probably come, like, come over, like, this... Mm-hmm. It was like, oh, I'm... You think that was going on?

• 27:54Speaker 06

  Uh, probably, to be honest, yes. Okay. You kept sending her those messages? Oh, no, like, I, I just... I just told the guys I was getting food and this girl, that's all I said to a few girls.

• 28:09Speaker 01

  It all seemed cut and dry to the London police. But later, messages would surface from a group chat between the hockey teammates from that night, revealing that McLeod was not telling the truth about why his teammates came to the hotel room. Just forty minutes after E M and McLeod left the bar to go to his hotel room for casual sex, he messaged the team group chat, saying, quote, "Who wants to be in a three-way, quick, 209, Mikey?" A fellow player, Carter Hart, replied, "I'm in." E M said that she only consented to sex with Michael McLeod.

• 28:51Speaker 01

  The fact that he invited his teammates for sexual activity afterwards was something she said she didn't know about and never consented to. And that would be the crux of the issue.

• 29:04Speaker 02

  McLeod's whole thing was, I don't know how people kept showing up, just people just kept showing up.

• 29:09Speaker 03

  He said he doesn't know how they showed up there, they just magically knew that he had pizza. You can smell it from seven floors away. Like, oh, I know that he has chicken wings in his room. It's laughable.

• 29:21Speaker 02

  Yeah, I've never been so excited for matzah sticks my whole life. Like, it doesn't make any sense. Um, and McLeod's playing it off like, I have no idea why people are here, it's a complete mystery to me. Um, I, and then was asked, like, were you sending any of those messages? McLeod's like, no, I just sent a message to a few people saying that there was food. I did mention that there was a girl, but that was all, come on, man.

• 29:47Speaker 03

  And then they showed the text that says, "Who's down for a threesome or something?", and then, "Room 209." The truth was, he texted the whole group chat and asked them to come.

• 29:59Speaker 01

  So at trial, the Crown's case pivoted on this evidence that showed Michael MacLeod invited his teammates to his hotel room, offering for them to engage in sexual activity with EM, quote, "without any belief that she was interested in that and knowing that she had not asked for that." We also learned that five minutes after he messaged the team group chat, MacLeod sent a direct message to one of his teammates, inviting him to, quote, "come to my room if you want a gummer," which apparently means oral sex. The defence argued it was all EM's idea, although there's no actual evidence of that.

• 30:41Speaker 01

  MacLeod didn't testify in his own defence, but his lawyer had an answer for the group chat messages where he appeared to offer a threesome on EM's behalf. The response was that MacLeod only sent that message because EM asked him to. So in her written decision, the justice notes that Michael MacLeod did not disclose that he sent the three-way text message, and she says that failing to mention it specifically does cause her concern about his evidence. However, quote, "it does not cause me to disbelieve his evidence in its entirety."

• 31:23Speaker 01

  So Michael MacLeod was charged with two offences. Count two, which was party to the offence. The judge said that EM had almost no memory of what she might have said while she was in room 209. Then she turns to Michael MacLeod and says, "I am not satisfied that Mr MacLeod invited men into room 209 without the knowledge of EM for the purpose of committing a sexual assault." Not guilty on that charge as well.

• 31:54Speaker 02

  It blows my mind. What did the judge miss? So many contradicting statements from these guys. Between 2018 and 2022, and EM was held to an impossible standard, man. She had to be perfect. These guys, they just had to show up to an entry and like make it look pretty for Hockey Canada. That's it.

• 32:16Speaker 01

  And the headlines and the media articles would have us believe that E M told McLeod that she was up for a wild night. But that did not come from her. It was only a suggestion made by a defence lawyer, and that's not evidence.

• 32:32Speaker 02

  For me, it was the vibe that the defence was pushing. Like, they leaned so hard into the narrative that, um, like, E M was the sexual aggressor and looking for a wild night. And they kind of painted it like the players were just sort of going along with it. So the message was, these poor hockey players were a bit drunk and a little confused and swept up in the moment by a woman who was super duper into it, that they didn't want to miss their chance. And it was very subtle, but it was very deliberate. It was very, it was an interesting defence tactic to watch all these defence lawyers come together and very much frame that narrative. And the framing is dangerous because it plays on rape myths and gender stereotypes,

• 33:13Speaker 02

  like the idea that men can't be responsible if a woman is perceived as willing, or that a sexually assertive woman can't be harmed. So it completely ignores the power imbalance in that hotel room and the intimidation that comes along with being surrounded by large athletes. And when you look at the actual evidence, so the texts, the so-called consent videos, E M's description of fear and pressure, that passive player narrative doesn't hold up. They weren't confused or reluctant, they were very much in control, but the courts, for whatever reason, kept falling for this script where men are only accountable when it's convenient. So we need to stop letting defence strategies rely on turning survivors into the aggressors

• 33:58Speaker 02

  just to protect their reputations.

• 34:01Speaker 03

  I think, for me, a big part of this is... There was, there's five defense teams saying the exact same thing. And when enough people say the same thing, people believe it. And unfortunately for women, we never have the benefit of the doubt. We are always lying and then we have to prove that we're telling the truth. Whereas when a man says he didn't do something, people just take their word for it. That is the world that we unfortunately live in.

• 34:28Speaker 02

  But I mean, it's funny when that comes up because I mean, we look at other trials where you have five women saying the same thing against one man. And they're still getting away with not guilty verdicts. I mean, there's, we saw this with Gomashie as well. Um, where multiple women come forward, they all have the same experience or similar experiences, sorry. And

• 34:50Speaker 01

  And then they're accused of colluding with each other to get their story straight.

• 34:55Speaker 02

  But these guys get to collude in a hundred and seventeen missing text messages. Like it just, it blows my mind. It, nothing really should surprise me anymore, but man, oh man, just always something seems to come up at some point.

• 35:08Speaker 03

  The most obvious thing for me, um, is that she was on trial. The, the men were not on trial. She was on trial. The entire judge's verdict was talking about EM. There was nothing about any evidence that the Crown brought forward. And that's what needs to change. Who, who in their right mind would agree to take part in the legal process? Uh, when it comes to sexual assault, when this is the outcome and this is what you see.

• 35:37Speaker 02

  Yeah. It's, it's not just like high profile trials as well. Um, and it, it, it happens at every trial. Um, JB, you had a high profile trial. I had a trial that nobody knew about until I got my publication ban off. Um, this is something that, like, it's a playbook. There, like, there's no other way for it. Like, you are on that stand. You are dissected. You are not necessarily mocked, but man, you feel like you're being mocked. And, you know, you're, they try to shame you into, into thinking that, oh, man, maybe, maybe I was the wrong one here. And that's so seldom the case. But you know, with the survivors that I've interacted with since the verdict has come

• 36:20Speaker 02

  out, that haven't either made it to trial or who have had cases that have gone to trial, they've all said the same thing. Never again. We're not doing this. Like this, this can't happen again. And what they're talking about there is reporting. And that's a really, really awful thing. Because I mean, sexual assault is on the rise in Canada. It's the only crime that is increasing year after year instead of decreasing. But I mean, if nobody's going to report it because they know what's going to happen, I don't blame them. But I mean, at the same time, reporting is also a very personal choice. And there's a lot that goes into thinking about reasons why one would or wouldn't report.

• 37:03Speaker 01

  Next, JB shares her experience testifying at the first trial of Jacob Hogard and her cross-examination by one of the same defence lawyers who was part of the Hockey Canada trial.

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• 39:12Speaker 01

  So in a second, we'll be going through some of the key moments from the Hockey Canada trial that really stood out to both of you. But first, I wanted to turn to you, JB, because you have faced the same defense lawyer now representing one of the hockey players. And you've described your cross-examination as one of the most traumatizing experiences of your life, which includes the actual sexual assault that Jacob Hogard was found guilty of, which is a shocking thought.

• 39:46Speaker 03

  For me, I don't say his name, ever. I don't say his name out loud. I don't type his name.

• 39:54Speaker 03

  And it's the same for her. Because I felt like I was assaulted in the courtroom in a different way. And it's difficult because I understand this is someone's job. But the way that she specifically attacked me as a person with a smile on her face was so horrible. And there's also something so insulting about another woman defending a rapist and another woman not believing you. For me, it's still, I'm still dealing with it a lot. It's very, very, very difficult to think about the trial. The trial for me is all I think about now. I don't even think about the assault anymore. The trial was the worst part, which is crazy.

• 40:36Speaker 03

  When I have nightmares, it's I see his defense lawyer's face. And I hear her voice and how...

• 40:44Speaker 03

  Cruel she was to me. And then I see her saying the same things in this trial. And I see EM speaking up for herself, which is amazing. She's a badass. Um, I understand that everyone deserves a defense. And the crown tries to explain that to you before you start, before you go to trial. They're, they try to explain like, oh, this person isn't mean. They're not trying to hurt your feelings. But that is not, that's not the truth, in my opinion.

• 41:12Speaker 02

  Just listening to what you were saying, like, just, it just took me right back. And I'm, I'm, I don't, I don't know if thankful is the right word, but like, I guess, I guess I'm lucky. I didn't have a high profile trial and I, I certainly hope that doesn't sound insensitive. But like, I don't, I don't think I would have been able to handle that. I mean, nobody should go through sexual assault, but to have to go through somebody who is now on record in court record as being called a rock star while you're just nameless. What a fucking trip. Like that's, and I'm so sorry if you have to bleep me, Chrissy, but god damn.

• 41:48Speaker 03

  No, I won't, I won't, I won't.

• 41:49Speaker 02

  Sorry. But I mean, what the defense did to you and their tactics um is cruel. You know, the trial being the worst part, you're not wrong. And when you were saying that you have nightmares of the trial, like I, like I had just like a, like a physical reaction to that. Because I also remember having more nightmares about the trial than I did ever about being assaulted. And even just thinking back at it now, the, the nightmares that I had, I never saw my perpetrator's face. I, I remember just seeing the wood in the courtroom. And that's, that's all I remember from my nightmares is just the wood in the courtroom.

• 42:30Speaker 02

  What the defense actually did in EM's trial, you know, because the headlines are so focused on like texts and timelines and group chats. But like, what was happening in, in the courtroom is something that survivors know all too well. And like you, you just completely explained what we go through. But like, the defense leans so heavily on rape myths and character assassination. And they didn't just challenge the facts with EM. They went after her credibility, her memory, her intentions and her everything. And then they focused on her shoes for like 20 minutes. And it like, it's just those little mind fucks in there that really do mess with you when you're on the stand.

• 43:11Speaker 02

  And one of the most reported lines in court was, well, she's not a reliable witness. And the defense lawyers said it over and over and over again. So she didn't remember certain details. She had inconsistencies in her stories and she supposedly had reasons to lie. And you know what? Like that's standard practice in sexual assault trials. It's not new. It's not unique because it is the playbook. But what makes this case different is that it unfolded in national spotlight. And millions of people were watching it. It was millions of hockey fans that were watching and hockey in Canada is huge. This trial was absolutely massive. And what they saw, whether they realized it or not, was a crash course in how the legal system systemically breaks us down.

• 43:59Speaker 01

  At trial, EM testified that when the men started showing up to Michael McLeod's hotel room, she was shocked to see them. She was still naked. She testified the men were making sexual suggestions, telling her what they wanted her to do. She says they told her to get down on the floor and touch herself. She said no, giving the excuse that it was dirty. So they put a bed sheet on the floor. The Crown's case was that this was an example of the passive ways that EM used to try and resist, ways that many women would easily recognize. EM would testify that she felt she had no choice but to lie naked on that sheet on the hotel room floor,

• 44:44Speaker 01

  surrounded by up to 10 elite athletes on a winning streak, and she found herself over her head. She testified she did not know the men and did not know how they would react if she said no or tried to leave. Fearing for her safety, she says she complied and performed sexual acts she did not consent to.

• 45:06Speaker 01

  The Crown's case was that three players obtained oral sex from E M without her consent. Michael MacLeod, Carter Hart and Dylan Dubay. The court also heard that Dubay slapped E M on the butt while she was engaged in a sexual act with someone else. Cal Foot was accused of doing the splits over E M's face without her consent. The Crown and defence did not agree about whether he had pants on. And Alex Formenton and Michael MacLeod had vaginal sex with E M later in the bathroom, separately and allegedly without her consent. The players do not deny that the sexual acts took place.

• 45:51Speaker 01

  Their defence was that it was all consensual, in fact, driven by E M. In his police statement, Michael MacLeod said that E M was taunting them, saying, "No one is going to have sex with me, you guys are pussies." He said he thought this was pretty weird, but went along with it. E M testified she couldn't remember much of what she said, and at some points conceded that she may have said things like that. She testified that it felt like the players were trying to recreate a porn scene, so she adopted the persona of a porn star to cope with being there. She said she was not in control of her body

• 46:34Speaker 01

  and did not make an affirmative choice to engage in that sexual activity. She felt she was doing what was expected of her and she was scared for her safety. E M testified it felt like her mind separated from her body and she did what she thought she needed to do to get through it.

• 46:55Speaker 01

  So Kelly and J B, I think one of the main things that the general public just can't seem to get their heads around is if we talk about fight, flight or freeze. E M didn't fight or resist. She didn't try and leave the room when it appears there were multiple opportunities to do that. In fact, she appeared to do exactly the opposite of that. And obviously, people fail to mention the power dynamics at play here as well. But I know that you have a lot of thoughts about this public discourse. And J B, I know you were in a similar situation in a hotel room, which is where your assault occurred.

• 47:34Speaker 03

  It's the same old song and dance for every sexual assault trial. I'm sure that Kelly heard the same thing. Um, I was constantly ridiculed. Why didn't you, why didn't you just leave? Why did you go there in the first place? Well, if he ordered room service, why didn't you scream? Like, you don't know how you're gonna act in a terrifying situation until you're in it. And I'm a freezing type of person. Um, but there's so many different trauma responses and it's very clear in E M's case that at some point she was fawning, um, which is common when

• 48:14Speaker 03

  you, you just wanna survive. All your, your survival instincts kick, kick in and your logic goes out the window. When I was asked, why didn't you leave? Like, I, I'm pretty sure my exact words were, I wish I did. Every day I wish I did, but I didn't. Because I wasn't thinking clearly. And you don't understand that until you go through something like that.

• 48:39Speaker 01

  When we talk about trauma responses, most people are familiar with fight or flight, instinctive reactions to danger. Some people are familiar with a third response, to freeze up. But J B mentioned a fourth response that I didn't know about, fawn. Fawning is the instinct to appease, perform, or comply in the face of a perceived threat. It's a survival strategy and it's rooted in fear. Unlike fighting back or running away, fawning can look like consent on the surface and even cooperation. But it's not about desire or willingness. It's a nervous system response designed to avoid escalation, keep the peace,

• 49:22Speaker 01

  and do whatever it takes to make it out of the situation with the least harm. And importantly, fawning is based on the survivor's perception of danger, not whether others think the situation was threatening enough. And that's where that viral meme about the man versus bear hits a nerve. When women were asked who they'd rather be alone in the woods with, a bear or a man they don't know, most chose the bear. And it's not because they think a bear is safe. It's because they know what it means to navigate fear around men, especially men they don't know. So fawning makes total sense in that context.

• 50:03Speaker 01

  And especially in cases like this that involve an unbalanced power dynamic.

• 50:09Speaker 02

  This again ties into, you know, harmful rape myths. Um, we are lying opportunists. We are, uh, we were into it. Um, you know, we wore a short skirt or we shaved our legs that day or something ridiculous. Um, JB, you, you said something, um, why didn't you just leave? And, you know, you were saying, well, I wanted to, and I wish I did. I wish I left. So EM consistently testified that she tried to leave the hotel room, um, but was coaxed back in by players. So she described multiple attempts to leave and she said that she was crying. And another player placed an arm around her shoulder and physically guided her back to the room. And another reportedly said, oh, she's crying. Don't let her go.

• 50:53Speaker 02

  So while nobody physically restrained her, she felt intimidated when she was walked back. Um, she ultimately decided that like she had no real option of safety. So in, in short, the coercion wasn't violent, but it was definitely pressure. And she was told either explicitly or implicitly to stay. And that dynamic is critical for understanding how coercion can take shape without physical force. And why survivors might actually feel trapped when they're not physically restrained. Um, again, going back to fawning, I think at some point we have all fawned. If we were walking down the street and it's like, maybe if I smile at this guy, he won't talk to me. May he'll go away.

• 51:38Speaker 02

  Maybe if I just kind of wave, but I mean, a smile is not consent. A wave is not consent. And I think that until women are able to reclaim their own sexuality, um.

• 51:51Speaker 02

  And have that confidence to walk down the street wearing whatever they want, or putting headphones in, or wearing their hair a certain way, or wearing high heels. Until we have that ability to walk down the street without being harassed, we're, it's not a level playing field, right? And it never will be. And it never will be. There was a phrase I learned today, and what is called is sexual terrorism. And Natalie Portman does this really cool speech, and I have no idea where she was, but it got flagged to me today before we recorded. And sexual terrorism is kind of what I just described, where, you know, you can't walk down the street showing cleavage, or you can't walk down the street with a face full

• 52:35Speaker 02

  of makeup, because you are subject to being judged, and you're subject to comments. And at some points, your life is actually legitimately in danger.

• 52:44Speaker 01

  Here's an edited clip of Natalie Portman's speech, given at the Los Angeles leg of the Women's March in 2018.

• 52:53Speaker 08

  I turned 12 on the set of my first film, The Professional. I was so excited at 13 when the film was released, and my work and my art would have a human response. I excitedly opened my first fan mail to read a rape fantasy that a man had written me. A countdown was started on my local radio show to my 18th birthday, euphemistically the date that I would be legal to sleep with. Movie reviewers talked about my budding breasts in reviews. I understood very quickly, even as a 13-year-old, that if I were to express myself sexually, I would feel unsafe, and that men would feel entitled to discuss and objectify my body to my great discomfort.

• 53:34Speaker 08

  The response to my expression, from small comments about my body to more threatening deliberate statements, served to control my behavior through an environment of sexual terrorism.

• 53:44Speaker 02

  Good effing lord. We are not here for your entertainment, sir. Leave us the fuck alone.

• 53:58Speaker 01

  So let's continue. The Hockey Canada trial hinged almost entirely on the testimony of EM. There were other players in the room that night who weren't accused, and they testified for the Crown. But only one of the five accused took to the witness box, Carter Hart, the first one who replied to Michael McLeod's offer of a three-way by saying, "I'm in." Hart testified that the first time he saw EM, she was naked and masturbating on a bed sheet on the hotel room floor, appearing to enjoy herself. He claimed that she said, "Can somebody come fuck me?", which made him feel excited.

• 54:39Speaker 01

  According to Hart, most of the men had girlfriends, so no one wanted to. But because he was single, he asked EM, "Can I get a blowie?" He testified that she replied, "Yeah," or "Sure", and then performed oral sex on him for about 30 to 60 seconds. He said he didn't become fully erect, found it weird, and stopped. Carter Hart testified that EM then sat against the bed and seemed annoyed, saying something like, "What's wrong with you guys? If no one is going to come fuck me, then I'm going to leave." He recalled seeing EM take Alex Formenton by the hand

• 55:21Speaker 01

  and lead him to the bathroom, where he later heard the shower running. At 3:27 a.m., just after the first consent video was filmed, Hart texted another player to get to the room. He testified that he did that because EM seemed to want more men to have sex with her, and he knew the player he invited was single. Hart admitted his memory of the sequence of events was unclear, but he testified he recalled seeing Cal Foot perform the splits over top of EM later in the night. He testified that she was laughing. The five separate defence teams accused EM of lying and manipulating the truth,

• 56:05Speaker 01

  that she was the one who initiated the group encounter. They questioned her clothing, drinking and sexual history, implying that she had asked for it. It should be noted that legal definitions of consent require it to be clear, specific and present at the time of each act. The defence claimed that EM's statement that she was too drunk to consent did not match the security footage from the bar they were drinking at beforehand, or the so-called consent videos, which they argued showed she was not visibly intoxicated. The defence also highlighted inconsistencies in EM's story, like the fact that her civil lawsuit mentioned feeling terror and fear,

• 56:50Speaker 01

  which wasn't reflected in her earlier police statements. EM said she was still processing at the time. They argued her testimony was rehearsed, speculative and filled in gaps with assumptions rather than facts. The defence also suggested that EM had motive to invent a story that explained why she chose to leave her friends at the bar to have group sex with a group of hockey players who were not her boyfriend. She was accused of lying to protect her relationship and to justify herself to her mother, framing herself as a victim instead of a willing participant. The defence also pointed to the fact that EM later said she was mostly upset

• 57:34Speaker 01

  because McLeod treated her poorly afterwards, asking if she had STDs and telling her to leave the hotel room.

• 57:50Speaker 01

  One of the most talked about pieces of evidence in this case are these two so-called consent videos. Carter Hart had testified that it was common among professional athletes to record such videos.

• 58:04Speaker 01

  So the timeline is that EM and McLeod left the bar at 1:30 and had consensual sex. At about 2:10 a.m., McLeod started messaging his teammates to come to his room. The first so-called consent video was filmed at 3:25 a.m. It was only six seconds long, and these descriptions are from the judge's written decision. EM is asked by a male voice, "Hey, you're okay with this, though, right?" She responds, "Yes, yeah." The male asks again, "You're okay with this?" She responds while wiping her eye with the back of her hand, "Yeah, I'm okay with this."

• 58:49Speaker 01

  Almost exactly an hour later, at 4:26 a.m., McLeod recorded another video. This one was 12 seconds. EM is standing while holding a white towel in front of her body, but otherwise appears to be unclothed. A male voice identified as Michael McLeod can be heard saying, "Say it." EM, who was smiling and looking at the camera, says, "Okay, it was all consensual. Are you recording me?" Michael McLeod said, "Yes." EM, "Okay, good. It was all consensual." McLeod said, "What else?"

• 59:29Speaker 01

  EM, "Would you? You are so paranoid. Holy, I enjoyed it. It was fine. It was all consensual. I am so sober. That's why I can't do this right now."

• 59:41Speaker 01

  Here's a slightly edited clip of Michael McLeod telling the detective about the consent videos.

• 59:48Speaker 06

  Kind of took a picture, a video, that's from the first video. And I made sure I didn't get any of her naked or anything. I just tried to get her face in it and just said, "Are you okay with this?" And she said, "Yes." And so I just kind of threw it to the mess, trying to make sure she was okay with this because it was like a weird situation that, you know, like I wasn't expecting was gonna happen. That's all, you know, all the guys coming in and, you know, I kind of was kind of worried something like this would happen. So I took that first video, just made sure she was okay with it, and she said, "Yes."

• 1:00:27Speaker 01

  Em testified that she didn't remember the videos being filmed, but explained that she would have only been saying what she thought the men would want to hear. She maintained she was intoxicated and frightened. The defence argued these videos were proof of consent, and much of the public conversation around these videos has been agreement that they must be proof that Em had gone along with it. The Crown argued the videos were evidence that MacLeod knew that Em was not consenting, that's why he made them. The judge did not accept this argument. While Justice Karasir didn't take the consent videos as proof of consent,

• 1:01:11Speaker 01

  she used Em's appearance in those two short videos to assess her demeanor and level of intoxication, and found they did not show that Em was in a fearful state.

• 1:01:24Speaker 03

  I don't know if you've seen online, Kelly, there's someone asking how, if you've slept with a hockey player, have they asked you to take a consent video? And there's hundreds of girls, hundreds. So this is something they teach them?

• 1:01:39Speaker 02

  Yeah, I was just gonna say, like, this has to be part of their, like, mandatory two-hour, because it's not, it's not a consent training, it's not.

• 1:01:45Speaker 03

  No, it's just how, how to cover your tracks. And it works, apparently.

• 1:01:51Speaker 02

  Right? Like, I wouldn't be jumping up and down, saying like, "Yep, that was totally consensual, woo-hoo! You should automatically know that something is consensual." If you have to record a consent video, you might have done fucked up. You might have done something wrong. Consent isn't proven by a video taken at 4 a.m. of a naked woman in a towel, surrounded by men who are significantly bigger and physically intimidating. So that's not considered enthusiastic or ongoing or voluntary participation. That's, that's just the camera capturing a really big power imbalance. And a video like that doesn't prove anything other than she was there. And being there doesn't mean that she was safe or that she said yes. Consent is not retroactive.

• 1:02:35Speaker 02

  Consent has to be in the moment, and anything less than that is not consent. It's coercion. And you can hear him coaching her. "Go ahead, say it." "Okay, what else?" If somebody is consenting to eight guys in the room, you know, rock on, do your thing. Definitely not judging, but you don't need a consent video after. You really don't.

• 1:02:56Speaker 03

  Yeah, it it really just shows the manipulation and the calculation behind sexual assault. Like, I keep talking about my case, but when I left the hotel, I got a text message saying, oh, I had a great day with you. Like, this is trying to change the narrative and spin the narrative. And it's the same thing, like the recorded phone call in my case. He was trying to get me to say what he wanted from me so that he could have it as a piece of evidence, which is just so strange to me. I don't think anyone's ever had a normal sexual encounter where someone wants to take a video or recording of them afterwards, asking them if they consented. It's so calculating.

• 1:03:35Speaker 02

  It's it's a way to control the narrative. That's exactly it. You have that power imbalance, right?

• 1:03:40Speaker 03

  Yeah, and there already was a power imbalance in the room. And then again, it's like, well, we have a video of you saying that you consented, so you can't go to the police.

• 1:03:49Speaker 01

  So let me ask you, okay, it's probably gonna be a pretty stupid question, but if you were in EM's possession in a hotel room surrounded by professional athletes and they asked you to take a consent video, what would you do?

• 1:04:04Speaker 02

  Learn Morse code and blink SOS with your eyes.

• 1:04:11Speaker 02

  Well, you know what I mean, though, right? I mean, like, what else were you supposed to say? Like, if you if you touch your right shoulder, like that, like, honest to God, imagine for a second what would have happened if she had said the opposite. Like, no, it wasn't consensual. Would they have kept filming? Would they have stopped everything and taken her home? Or would that footage have conveniently disappeared? Because those videos weren't about confirming her autonomy. They were about covering their asses. And a forced smile on camera after being surrounded and intoxicated and overwhelmed is not consent. That's called damage control. And the Crown thankfully saw that for what it was, like a like a box checking exercise.

• 1:04:51Speaker 03

  Correct me if I'm wrong, did the judge not mention the fact that she was smiling in the video in her judgment?

• 1:04:58Speaker 01

  Yes, she did. Um, quoting from the written decision, EM was speaking normally. She was smiling and did not appear to be upset or in distress. She did not appear to be intoxicated.

• 1:05:11Speaker 02

  You know what? I smile all the time and I usually smile because I have no idea what's going on. And I smile because it's a natural reaction to me, you know? And like even during this chat, we're, you know, we're having these serious conversations. We are having incredibly tough conversations about rape and rape myths and our legal system. And I'm still laughing through it because that's all I know how to do. Laughing is a fawning reaction as well, right? Laughing or brushing off something, brushing off a wrong comment. That's, that's something that all women have instinctively learned to do as, as well as the whole walking around the street with keys through your fingers, right?

• 1:05:52Speaker 02

  Real consent isn't just about what someone says. It is about whether they were free to say no. And in this case, you have a woman that's overwhelmed. She's alone in a hotel room with multiple men. All of them are large, trained, elite athletes. And these guys are part of Team Canada. They are national level players and these are guys who are used to taking up space. So she's not just outnumbered, she's outpowered. And that matters because when you're in a room like that, you don't always say no, even if you want to. You assess the risk, you read the room, you try to survive and you do what you need to do to get out of there safely. So this is what coercion looks like. It's not always somebody screaming or threatening violence.

• 1:06:38Speaker 02

  Sometimes it is the pressure of all eyes on you, the size difference, the tone in their voice, and the fear that if you resist, they won't stop or they're going to get angry or somehow things are going to get worse. And she may have said things like, "I enjoyed it" later on. But like, when you're surrounded by men like that, you're performing for safety. You say what you think they want to hear because maybe they'll leave you alone and then you can leave. And this is why we need to stop treating yes as the end of the story. We need to ask, was that yes given freely? Or was it shaped by fear, pressure and power? Because if we don't consider the imbalance in that room, we are not talking about real consent. And what we're talking about then is submission and submission is not consent.

• 1:07:22Speaker 02

  So until our justice system and our culture recognizes the role that power plays in these encounters, survivors will keep being blamed for the impossible choices they make just to stay alive.

• 1:07:34Speaker 03

  It's horrible. And like what you said, Kelly, like these men, they wanna call them boys. They like to call them boys because they like to downplay their threat level. They have been told their entire life that they are amazing, that everything they do is wonderful. So for them, like, they've only ever been told, yes, you're amazing, you are great, and that's what they think. Like, and that's the hardest part of sexual assault is a lot of the times the perpetrator does not think that what they did was sexual assault. They are, in their head, they did nothing wrong, and they genuinely believe that. It's difficult to um to go up against that, because this person genuinely believes that they did nothing wrong.

• 1:08:16Speaker 03

  So for me, like, the videos were the hardest part, um, because something so similar happened to me. Where like after the fact, the perpetrator is trying to gather evidence to make you look like you're crazy or you're lying, like the phone call that was played in my trial. I don't remember it happening, to be honest.

• 1:08:37Speaker 01

  JB is about to bring up a point in her trial, or should I say Jacob Hoggard's trial, in two thousand twenty-two that I need to explain before she continues. His defense team chose not to follow the proper procedure set out by a rape shield law and ambushed JB on the stand with a phone call that Hoggard had secretly recorded without her knowledge. The defense argued that it didn't fall under the rape shield law, and the judge said she fell backed into a corner and allowed it. So JB was forced to listen to a distressing phone call she'd long since forgotten about, with the jury watching as she trembled and sobbed.

• 1:09:19Speaker 01

  And lawyer Megan Savard told the jury the reason JB reacted that way was because she'd been caught in a lie. We'll talk about the ambush on the stand thing later, but for now, back to JB to talk about how Hoggard's recording of that phone call appears to be similar to these consent videos that the men accused in the Hockey Canada trial presented.

• 1:09:44Speaker 03

  Like the phone call that was played in my trial, I didn't know, I don't remember it happening, to be honest, I was a little drunk. Um, but it was like two days later and I was devastated. And I was with my friends and they were like, call him and tell him. And I was like, you know what, I'm going to. Um. And and he was in a recording studio, so he recorded it and then played it later. And it's it's so similar, the tactics are so similar. You know, you did something wrong, like wrong isn't even the right term. You did something horrible to someone, but after the fact, you're trying to do everything you can to cover it up. And I'm sure she doesn't even remember those videos being taken. I don't remember the phone call that happened. You you block out things like that.

• 1:10:28Speaker 03

  Um, and people that are gathering evidence are trying to defend themselves. And I'm sure they thought that these videos were going to prove that it was all consensual and that everything was fine. But I can't even imagine for her what it was like for them to play them in court just to once again publicly humiliate her.

• 1:10:50Speaker 02

  And that's what it is. It's about humiliation and it's about controlling her and making it so shitty for her that she doesn't want to continue on with this. And as though she has a choice, because when you get subpoenaed, you don't have a choice. And if you don't show up, like they're going to arrest you and chances are you're going to get a worse sentence than the guys that actually hurt you. Because that's just how our system works.

• 1:11:10Speaker 03

  I tried to back out, like in the middle of my trial. I was like, I'm done, like I can't do it anymore. I tried to back out multiple times, uh, and they just kept telling me like, if you don't do this, it's going to ruin the other complainant's case. And like you're there to like back up what she's saying, um, and putting it on me. But that's like, that's their tactic. They want you to break to the point where you are done and you want to quit. And you're so humiliated.

• 1:11:39Speaker 02

  Yeah.

• 1:11:39Speaker 03

  And it's so infuriating to me that it's still happening to people.

• 1:11:49Speaker 01

  Next, JB recounts the most stressful moments from her cross examination at the Jacob Hoggard trial. Back in a moment.

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• 1:13:55Speaker 01

  Before we move forward, I want to stress that this isn't about one individual lawyer. JB can only speak to her experience with one lawyer at the Jacob Hogard trial, a lawyer who happens to be part of the Hockey Canada trial now and was cross-examining EM when she broke down on the stand. And we're not trying to take someone down, even if it were possible and we had the power, because it's more than just one lawyer. The behaviours and the tactics we often see by defence lawyers towards sexual assault complainants in particular is representative of a broader legal culture that actively rewards cruelty in the courtroom.

• 1:14:37Speaker 01

  And we just want this behaviour to change because it is possible to challenge testimony while respecting both the victim complainant's dignity and the rights of the accused. So JB, how did it feel to be on the receiving end?

• 1:14:53Speaker 03

  Yeah, so in my opinion, it's it's a cruel torture. It seems like she's done the same things in this trial, just based on what's been reported. They can't report everything, obviously, but for me, there's multiple times she laughed at me after they played the phone call in court and I had like a meltdown like I'd never experienced before. I could I could hardly speak, I couldn't even breathe. And then the next day, we were in court and she asked me a question about the phone call. And I said, I don't remember what she was asking. And she like looked at me and she was like, do you want me to play it again? With the biggest smile on her face. And I just like melted into the chair at that point. I I couldn't even speak.

• 1:15:37Speaker 03

  I would have, anything she would have said to me, I would have disagreed with at that point because I couldn't take it anymore. And I felt bad, I just kept apologising to the whole court, saying, I'm so sorry, I feel like I'm traumatising everyone in this room.

• 1:15:50Speaker 03

  And the judge was, she asked me multiple times if I wanted to stop or leave or come back, but I didn't want to prolong it. It's it's a tactic, I think it's something that they do, they want to break you down to the point where you will accept everything that they say. And it's also hard to know that everything that you say and everything that she says is going to be reported. That's where I I understand where EM is coming from. Um, the one thing that I really want to emphasize, when I testified the day that they brought the phone call out, and then they played the video that they told me was me and it wasn't me.

• 1:16:21Speaker 01

  A quick explainer about the video. Before the trial, JB had given an interview to CBC's Judy Trin, where her identity was disguised. That's the background. Then, during cross-examination, Meghan Savard confronted JB with two CBC media clips that both showed a person with their identity disguised recounting details of an alleged incident of sexual misconduct by Jacob Hoggard. But the details given in one of those clips did not match the details JB had given in her earlier testimony. Ms. Savard repeatedly insisted that the person in that clip was JB, arguing it was proof that she had lied to the jury.

• 1:17:04Speaker 01

  JB protested that it wasn't her. She can't remember saying those things. But under intense pressure, she eventually broke down and conceded, "The defense must be right." JB had no idea that the clip was of someone who wasn't even part of the trial, until the defense's mistake was revealed by a CBC producer. JB was right all along, but the incident had left her extremely and visibly distressed. The defense did not apologize. Ms. Savard argued that the jury shouldn't even be told that the judge had apologized to JB, because it could lead her client, Jacob Hoggard, to be seen in a negative light.

• 1:17:48Speaker 01

  In this next part, JB tells us what happened after that incident in court.

• 1:17:54Speaker 03

  And then they played the video that they told me was me and it wasn't me. Um, I went upstairs, um, because you're not allowed to speak to the Crown. No one speaks to you. That's another thing. When you're in cross-examination, you're not allowed to speak to anyone. It's extremely lonely. It's devastating. The Crown won't look at you. The detectives won't look at you. Your victim, support person, can't speak to you about evidence. You are alone. And the longer it goes on, the longer you are by yourself. Um, and we went upstairs. None of us said a word, and I started crying. Um, and they were like, "Okay, we'll see you tomorrow." One of my Crowns. And all I was thinking in the back of my head was, "You will not see me tomorrow. I'm going to find some way to commit suicide." Um, because I, I can't do this another day.

• 1:18:40Speaker 03

  And I was like dead set on it. And I went back to my hotel room and all I was I like was talking to my parents. Like I have a very great support system with my parents and my friends. And all I kept thinking was like, I will feel so much better if I'm no longer alive and I don't have to do this tomorrow. Um, and I don't think people understand that that's the type of impact it has on you. Um, I genuinely thought that I would not have to suffer anymore. And that it would be better for me. And then people are talking about it online and all these lawyers are talking about this phone call that I had and it's I'm sure it's so similar to EM with these videos where

• 1:19:24Speaker 03

  people are making a judgment about you because of some sort of recording that someone took of you under duress that you don't even remember. But yeah, that's one thing I really like want to emphasize to people is that like the mental toll on you is so severe and I I take antidepressants, I go to therapy and I couldn't handle it. So if I didn't have the support system that I have, I would not be alive. And I would have thought that I was better for it because of the way that I was treated in that courtroom.

• 1:19:55Speaker 02

  I'm so glad you're here.

• 1:19:57Speaker 01

  Absolutely.

• 1:19:58Speaker 03

  You're sweet.

• 1:19:59Speaker 01

  That was really heavy and JB, thank you for sharing all of that. I know that it can't have been easy, but I think it's important to all of us that the public understands that this is the experience of a sexual assault survivor at trial, that it can destroy lives, you know? Um, it's another trauma.

• 1:20:19Speaker 03

  Um, trauma, trauma will kill you and stress will kill you. I mean, I have all these health issues now too. And being in fight or flight for that many years is so painful. On your, it's so hard on your body and you don't even realize it until it's too late. Um, like mentally, physically, it's just the whole, the whole thing is so, so horrible. And seeing it. Replay itself the exact same way is sad. It's it's sad that nothing has changed. Absolutely, nothing has changed.

• 1:20:53Speaker 01

  Well, what did change is that because the legal community celebrates these tactics, Ms. Avard was able to leverage her performance in your high profile trial to to get more high profile male clients who've been accused of sexual assault, to the point where we're discussing her now representing one of the accused in the very high profile Hockey Canada trial. And I understand she's also won several awards in relation to criminal defence. So the rewards for the defence side are numerous.

• 1:21:31Speaker 03

  I I hate to single someone out, but you know, but I'm gonna be honest, I she was so horrible to me. I I don't care. Um, she destroyed me. And I want and I would love for her to know that. I would love for her to see the other side of what she does, because she only talks to her clients, but she doesn't see the other side. Um, and I wish that more defence attorneys could understand that what you're doing to these people will ruin their entire lives. And that's the trial shaped everything for me. I, you know, I've I'm thirty. How old am I? I'm thirty two. Um, and like, all of my friends are married, they are having kids.

• 1:22:11Speaker 03

  Now, I this is what I did. This is my baby was going to court and now trying to survive the trial.

• 1:22:20Speaker 02

  I think that using the term survive the trial is probably something that doesn't get talked about enough. We we always talk about surviving the assault, but I mean, the stats are so pathetic and low that not all of us get to make it to trial. And, you know, it's almost celebrated now, like, whoa, you're going to trial. Like, the bar is so low just to make it to trial. It's it's unreal.

• 1:22:44Speaker 03

  It's so.

• 1:22:44Speaker 02

  And then this happens and you're like, no wonder people don't want to report. Like, no wonder people don't want to come forward. What's the point, right? This shit has to end.

• 1:22:56Speaker 01

  Yeah, because survivors are being worn down by the system. It's as simple as that. And JB, you told me that you regret going to trial. In fact, you regret reporting your sexual assault altogether.

• 1:23:11Speaker 03

  It's true. I wouldn't have went if I knew, even now in hindsight, I wouldn't have done it. Um, but then they tell you, oh, well, even if he's found guilty, sentencing will take six months. The appeal will take years. And then when they, even if they go to jail, like anytime he tries to apply for bail, I have to give a statement. So it's a, it's such a long process and they don't tell you that because you wouldn't do it. If I knew what I was in for, and I'm sure Kelly thinks the exact same thing, I wouldn't do it. I wouldn't do it over again. I got the outcome that everyone wants. I had people telling me like, oh, wow, a five year sentence is amazing. And I was going to court for longer than five years.

• 1:23:51Speaker 03

  Like I'm right, I'm going on nine years since it happened. Um, and I'm still in court with him. Uh, he just went to jail last summer after two years of being found guilty. The process isn't explained to people and then it's almost worse when it's on a public platform. Because it's, it's honestly, it's embarrassing. It's, it's embarrassing to talk about regardless of who you are and regardless of who the defense is. But when it's on a public stage like that, it's so embarrassing and you just dread the headlines that are going to come out the next day. People were live tweeting my trial. And when I saw him testify, it's so infuriating.

• 1:24:32Speaker 03

  And but there's nothing you can do about it. You know someone's lying and you know they're saying the craziest thing. Um, it's like an out of body experience. It's not normal. Um, but it's, and I don't, I don't like to deter people. That's what I'm afraid of. I'm afraid to deter people from actually like reporting or going to court. But if I had a friend who came to me and said that they were going to their own sexual assault trial, I would try to tell them not to do it because that's how painful it is and that's how horrible it is. And just on a normal day, if it's someone who's famous like these, I wouldn't even call that. I don't even want to give them that. It's high profile is the word. It's just like magnified times a thousand because people love to have an opinion. And but it's so strange to have an opinion on sexual assault.

• 1:25:18Speaker 03

  That's, that's what I thought anyway. Every time I saw it, I was like, oh, that's, that's weird. There are certain things you shouldn't be a devil's advocate for. Um, and sexual assault is one of them, in my opinion. I see Kelly smiling.

• 1:25:31Speaker 02

  Yeah, no, I mean, you, you've touched on a couple of things, you know, I, when we're sexually assaulted, the thing that we have to keep in mind and keep telling ourselves, nobody cares that we are a victim. We are a witness to our own crime. And that's it. Like, we, we have to disassociate ourselves from that, from that victim mentality, from the survivor mentality, and say, this is what I, as a witness, witnessed to my own crime. And this is what my arm felt, and this is what my leg felt. And it's dehumanizing because they want you to be as human as possible. They want you to be as raw as possible and as real as possible. But if you don't do it the right way, if you're not performing, you're, you're lying.

• 1:26:14Speaker 03

  The EM trial, I see so many comments that are like, why did she wait all this time to press charges? We don't press charges.

• 1:26:20Speaker 02

  Yeah.

• 1:26:21Speaker 03

  The victim does not press charges. The crown attorney presses charges and all you are is a witness. You are no different than the other witnesses. That's all you are. It's not up to you if charges are pressed.

• 1:26:32Speaker 02

  Yeah. It doesn't matter when you report, you're still doing it wrong. If you report right away, you're doing it wrong. If you wait a year, you've done it wrong. Doesn't matter. You've done it wrong the whole time. And so when people are like, well, you know, charges weren't pressed until four years after. Why did it take her so long to come forward? Like, there's a real good chance that she might have gone forward on day one. And that there's only just been now enough of an investigation, enough as evidence, where there are grounds for charges X number of years later, but facts don't matter. Because everyone's already made up their mind before the trial starts. And you know what's exhausting about watching these kind of trials unfold, and especially this one, is the brutal double standard in how credibility

• 1:27:15Speaker 02

  is judged. So EM and yourself, JB, you, you guys were held to impossible standards on the stand, on social media, and EM did nine full days of tests. You did four, under pressure, under surveillance and under constant attack. And still every tiny slip or change in wording is treated as proof as though you're lying. So if you can't remember the exact sequence of events, you're lying and unreliable. If you didn't fight back, you were into it. If you felt triggered while recounting it, you're unstable. And if you're too calm, you're not traumatized enough. The bar for survivors is a perfect memory under pressure. But for guys on the other side, it's basically on the floor.

• 1:28:05Speaker 01

  That's where we'll leave it for part one. Thank you so much for listening and special thanks to JB and Kelly for joining us. In part two, we'll dig into the other key pieces of evidence, including a group chat that appeared to show the players coordinating their stories a week afterwards, and a disturbing text message that the judge ruled inadmissible. We'll unpack Justice Karasier's decision, why she didn't believe EM, and what was and wasn't scrutinized about the actions of the accused men. We'll also touch on why so many survivors are now reluctant to seek justice through the criminal justice system.

• 1:28:45Speaker 01

  Plus, a look at why trauma-informed training should be standard in every sexual assault case. JB will share what it's like to read online commentary about herself in the lead up to the Jacob Hoggard trial, and how those experiences mirror what she's seen in the Hockey Canada case. She and Kelly open up about being lifelong hockey fans, and we'll explain how watching this trial unfold became the catalyst for launching beyondtheverdict.ca. We'll be returning with part two soonish. It has been a very busy summer so far, what with this Hockey Canada stuff. So I'm going to take some leave to spend some time with my family, and we'll be back with part two in the next couple of weeks.

• 1:29:30Speaker 01

  Good thing you already know the spoilers. Thanks again for listening.

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