Analyzing the Hockey Canada trial [4]

Canadian True Crime is a completely independent production, funded mainly through advertising. The podcast often has disturbing content and course language. It's not for everyone. An additional content warning, you'll hear graphic details of sexual acts. Please take care when listening. Earlier in this series, we played a clip from the Steve Dangle podcast, a big name in Canadian hockey commentary, sent to me by survivors Kelly Fevere and JB who are both huge hockey fans themselves. I liked his discussion about the hockey Canada trial. There were two, I don't know if these are what the technical term for them, but the judge was like, this isn't a thing, this doesn't count. One of them was there's a group chat, which you're reading an exchange of half a dozen, a dozen, whatever it is, young men, trying to get their story straight and then the judge goes, you didn't read that. And I couldn't wrap my head around that. The other one that blew my mind the most and this is how I knew like this, this trial is going to be impossible for everyone to understand thoroughly because it just took place over such a long period of time and there was so much to take in. The Bret Howden stuff melted my face. The Bret Howden stuff is coming up, in this the final part of the series. We'll take you through the rest of what happened in room 209, including the alleged slap and the splits incident. We'll look at why the court zeroed in on EM's level of intoxication, who supposed motive to lie and why the judge ultimately decided her evidence was not credible or reliable, while rejecting the idea that a slogan like "believed the victim" has any place in a criminal trial. And why, despite saying rate myths and stereotypes would be avoided, the judge's written decision reads like the opposite. Why in a high profile sexual assault case, there is only one instance of the word trauma in the entire 90-page document and why there's so much speculation about why this case went to trial. And at the end, I'll share my personal opinion about what likely happened in that hotel room and why, even then, the verdict still would have been not guilty. The difference is in how the judge got there and the harm caused by framing EM's evidence the way she did, because the damage doesn't just stop with this one case, and it's not only that survivors will be more afraid to report. The real danger is that young men will take the message the other way, that it's fine to treat women terribly and look away from every red flag that says they are not consenting. This final part was so long they had to separate it into two files. The second file will be coming shortly within 24 hours. And again, thank you so much for your patience and understanding with this series taking so long to produce. I never intended for this to be taking us through the summer and into October or to get so into the weeds. But if you're still listening, you'll know how one thread led to another and another, and for someone like me, there is no way past it but through. This is the hardest case I've ever covered and translated into audio and I'm glad to finally be on the other side of it. Speaking of which, thanks to everyone who has sent in positive feedback, I'll try and respond to it all when this is finished. And to the other sexual assault survivors we've been hearing from, it means everything to hear your experiences have been validated through this series. The concept of forning, complying or appeasing someone who holds power over us is a common experience, especially for women. But it's one that our society and the court needs to get up to speed on. I'd love to hear your forning stories. If you'd like to share, please message us via canadiantruecrime.ca or Facebook or Instagram. Voice messages are welcome too. It'll all be confidential unless we get your consent to include it maybe in a follow up. Before we continue, a quick reminder of our position and why we're covering this trial. Justice Maria Carassia found all five accused hockey players not guilty of all charges. This series does not dispute those verdicts or the Crown's decision not to appeal. I'm not a lawyer. I'm just an ordinary canadian citizen looking at this case through the lens of the open court principle and trying to make sense of the outcome. That's why my brain is fried right now. Regardless of verdicts, our position is that the way the evidence was presented in the judge's written decision appears to be unbalanced, unfair to EM and unnecessary. The players are effectively given a pat on the back and told nothing wrong happened in that hotel room while EM is left to absorb the full force of credibility attacks. And we'll continue to show that if the spotlight had been turned on the accused players in the same way, it should have raised the same doubts about their credibility. But somehow, it didn't. I've based all of this on the judge's 90 page written decision and daily trial reporting cross checked from multiple media outlets including TSN, the Globe and Mail, the Toronto Star and CBC News. See the show notes for the full list of sources. And please note, I can't cover every detail, angle or thread in this series. It would be incredibly grueling for us all and it's already taken enough time. But if you do notice anything else, please feel free to send us a message. It might be good for a follow up. So with that said, where we left off, we were deep in the confusing timeline of the two-hour incident in room 209. Despite trying to get on the same page about telling the truth, none of these guys can get their stories straight. Even players who entered the room at the same time gave accounts that were wildly different. But there's some solid timestamps to anchor the incident too. So to recap, at 1.48am, Michael McLeod and EM arrived at the Delta Hotel and had consensual sex in room 209. At 2.10am, McLeod texted the group chat inviting his teammates for a three-way and Carter Hart replied, "I'm in." Five minutes later, McLeod texted witness Taylor Raddish saying, "Come to my room if you want to gomma." About seven minutes after that, at 2.23am, the first players entered the room, witnesses Raddish and Boris Kachuk. They were gone before the next players entered at 2.42am. Witness Brett Houdin, followed by Carter Hart and Alex Fomenten minutes later with some additional players. About 10 minutes after that, McLeod picked up the food delivery from the lobby. At some point, Hart received oral sex. Fomenten went into the bathroom with EM and had vaginal sex followed by oral sex. At 3.13am, Dylan DuBay entered room 209 with witness Tyler Steenburgen, and some additional players. DuBay received oral sex. And now we get to 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 to hit her as hard as they could. It started to hurt and she told them to stop it. Carter Hart was the only one of the accused players who testified at trial and he said he did not see anyone slap EM. But the slap was witnessed by others in the room and attributed to Dylan DuBay. Witness Brett Houdin's evidence was that this slap was what caused him to nope out of room 209. A week after the incident, Brett Houdin sent a message to fellow witness Taylor Raddish. Houdin wrote, That same year 2018, Houdin told Hockey Canada investigator Daniel Robotai that as he was leaving room 209, he heard EM crying or weeping, though he said he didn't actually see it. He did not mention anything about a slap. But curiously, Houdin told Robotai that a few days after the incident, two players called him and asked him not to mention them to her. One of them was Dylan DuBay, who asked Houdin not to mention details and to leave his name out of it. In 2022, Houdin told Robotai he witnessed Dylan DuBay slap EM. He called it a smack and it drew a line for him. That was the moment he decided to leave the room. The following year, Houdin confirmed to police that he witnessed the slap. He said it sounded like it was skin to skin. It didn't sound like EM had any clothes on at the time. Houdin told the police he didn't remember EM saying anything when she was [BLANK_AUDIO] allegedly slapped, but quote, "I know she didn't ask for that." He said the slap was basically the thing that pushed him out the door. At trial, Brett Houten was of course subpoenaed by the crown to testify about what he saw and heard in that hotel room, including the alleged slap which he was clearly present for. One reporter in the courtroom noted, "When Houten speaks, I sense anger radiating from the gallery, particularly from the Maclouds, that he has already broken some sort of code, but on the witness stand, he is uncooperative." That's Ariela Garmaze in a piece for the walrus. It appears the crown anticipated that Houten's testimony would align with his previous statements. Instead, it became a point of tension in the courtroom and effectively made Brett Houten the butt of everyone's jokes. Houten testified that he heard a slap but never saw it. He also testified that he remembered Dillon Dubais spanking E.M. On cross-examination, he said he couldn't remember any of the details. The crown asked him if he remembered where in the room it happened. He said he didn't remember. Was E.M. clothed or unclothed? Don't remember. What was she doing? Don't remember. Was there a sound? Yes, but that's all I remember. Do you recall if she reacted? Don't remember. Brett Houten couldn't even remember how he felt when Dubais allegedly slapped E.M. He testified he only remembered wanting to leave and get out of there because the whole situation was awkward and made him feel uncomfortable. The crown was frustrated after this and argued that Houten was faking his memory loss, pointing out that he remembered some details, but when it came to anything that could hurt his friends or teammates, he conveniently didn't remember. It's clear that Houten's testimony diverged sharply from what the crown likely expected, so Prosecutor Megan Cunningham took the unusual step of asking to cross-examine their own witness, something Justice Carassia allowed on a limited basis. Houten was asked about his 2023 police statement, where he said he saw E.M. being slapped. It sounded like skin to skin and was basically the thing that pushed him out the door. In the witness box, Houten said he no longer remembered the slap, but believed his earlier statement was true. And as for it being the last straw, he testified he felt uncomfortable with the situation, but also because E.M. was asking the men to do things which was awkward. As for the phone call with Dylan DuBay in the days after the incident, Houten testified he had no memory of it now, except being asked to leave DuBay's name out of things. He said that it was difficult to do at the time. "I'm an honest person. I didn't lie. I just didn't bring his name up." And about his past statements that he heard E.M. crying or weeping, Houten told the court he no longer remembered that either. Houten testified remotely from Las Vegas, where he plays for the Vegas Golden Knights. The press noted he was seen on-screen wearing an olive-colored hoodie with dishevelled hair. He broke down at one point when he spoke about his family and how hard it was to tell his father about what happened. The defense argued that Brett Houten's memory issues were not famed or fake as the crown suggested. He was nervous, seven years had gone by, and he suffered a concussion in recent years. A number of memorable comments came from Carter Hart's lawyer Megan Savard, who formally represented disgraced musician Jacob Hogard. Of Brett Houten, she announced, "This witness is clearly unsophisticated. He didn't come to court, dressed for court. He's in articulate, careless with words. He's prone to overstatement." "Then retractions." If Houten was faining his memory loss," Savard said, "it would have been clear from his testimony that he was trying to help the defense. His former teammates." But quote, "If anything, we may all say at the end of the day this witness is generally useless, but certainly not helpful to the defense." Crown prosecutor Megan Cunningham pushed back, pointing out that Houten may have suffered a concussion in 2022, but in 23, he still remembered details in his police interview that were consistent with his original statements, including details he testified he now had no memory of. Justice Carassia acknowledged that Houten's memory had faded, but did not find it unreasonable given the passage of time. She rejected the Crown's argument that Houten was faining memory loss, and she emphasized that Houten was effectively adopting or agreeing with his prior statements, even if he couldn't recall the details independently. The judge charitably recognized Houten's inconsistencies and memory gaps without attributing them to deception or bad faith. But one piece of evidence was treated differently. The text message Houten sent to fellow-witness radish a week after the incident. "Dude, I'm so happy I left when all the shit went down. Ha-ha, man, when I was leaving, Dubber was smacking this girl's ass so hard, like it looked like it hurt so bad." The Crown described it as "crucial corroboration of EM's testimony, but when Houten was questioned, he was vague, sometimes saying he couldn't be sure that what he wrote was accurate, other times insisting he had no reason to lie, he just didn't remember." The defense argued this text message should not be admitted as evidence, as it amounted to hearsay, words on a screen that couldn't be tested since he no longer remembered it. Justice Carassia agreed, saying that although Houten testified he wasn't trying to lie when he sent that message, he did not testify that the message was true. He was uncertain and inconsistent. The judge noted that Houten was under stress, talking about events that occurred when he was drunk, and was worried about himself when he learned that hockey Canada was investigating the alleged incident. For those reasons, Justice Carassia concluded this was a casual message Houten sent to a friend, it was an statement made under oath, and the court shouldn't have to speculate about its reliability. This text message evidence was ultimately ruled "in admissible." During my interviews with survivors Cali, Favreau and J.B. about this trial, they mentioned a few moments that really stood out to them. This is one of them. So in lieu of Brett Houten's own opinion about the text message he sent, Cali is willing to share hers. The court might not have had to speculate about its reliability, but we absolutely can. He is Cali. He sends a text bragging about how hard EM is being slapped that night, like genuinely bragging, not concern, not remorse, not confusion. He writes it like it's a highlight of the evening for him. He's not really talking about a person. He's describing a thing that's being used and hurt and passed around. And there's zero recognition for what happened that could have been considered non-consensual. And that kind of language shows just how deeply normalized and celebrated abusive behavior is in some circles, and specifically pro-athletes ones. So this is essentially like locker room banter that's been turned into evidence at a sexual assault trial, and we're still being told, "Eh, boys will be boys." Let's circle back to hockey commentator Steve Dangle via his STPN YouTube channel. Somehow he and his co-hosts have managed to be fans of the game of hockey without turning into sicker fan-tick, unpaid hype-men for players accused of legal or moral wrongdoing. This is what they mean by positive role models and sports. If only we'd seen some of that in Room 209 that day. He is Steve Dangle, clip-edited for brevity. Loudon's recollection was so poor that Cunningham accused him of feigning memory loss to protect his former teammates. The defense jumped in, bringing up the multiple head injuries, Loudon has suffered in his hockey career as a plausible reason why he wouldn't be able to even recall the text message. He sent describing Dubé slapping EM's buttocks. And then that text of him telling a friend, "Here is what I saw was ruled to be inadmissible." And also his appearance in court in terms of what he was. "This showed up in a hoodie on video call." I don't know if this is a proper way to say this, but there were like, "You know, this guy's just too dumb." Like, it's how they frame- "That is paraphrasing, but-" That was co-host Adam Wilde there at the end. And it is paraphrasing, but it's not far off the words defense lawyer Megan Savard actually did use to describe Brett Howden. Was Howden aware he'd be painted this way? Who knows? But it's almost as though the defence was walking a careful line of noise. not outright calling Howden a liar because that would have perjury implications, but instead portraying him as sloppy and unreliable enough in the hope it might make the evidence disappear. Another clever legal strategy, although it did feel unnecessarily mean spirited and overshoot to the point of seeming a little performative, but it worked. Though survived, insisting that Howden was generally useless and not helpful to the defense, ended up being quite helpful to the defense. Howden's memory gap was enough to get a text message thrown out as hearsay, evidence that could have corroborated EM's testimony. The judge explained away Howden's memory gaps as the product of stress and toxication in the concussion and the passage of time, but when EM had memory gaps, there was no such grace. Here's Callie Favreau again with a few thoughts about the double standards inherent at sexual assault trials. Please note that when she uses the term "survivor," she's not referring to EM specifically, but to sexual assault victim complainants in general who testify at trial. The justice acknowledges his memory issues and rules that there's no evidence that he was lying or intentionally being forgetful. But the court doesn't hold him accountable or press him further. The court gives him a pass. Meanwhile, the survivor has to defend every single word, every single pause, every single reaction under a microscope. And the same leniency is never given to survivors because again, we are not seen as victims. We are witnesses to our own crimes, and yet somehow our voice as a witness doesn't hold as much weight as the others who take the stand as witnesses. So yeah, there's a double standard. And it's not subtle, it's structural. And until we stop treating survivors like unreliable narratives of their own trauma and stop metting men casually contradict themselves without consequences, these trials are never going to be about justice. They're going to be about reserving the reputations of men who brag about hurting women. Brett Hardham was not the only hockey player who recounted a slap and being asked not to tell anyone about it. We'll be back in a moment. As an indie podcast, our sponsors make it possible for us to continue producing responsible and thoughtful true crime storytelling and give back to those facing injustice. We appreciate your support by listening. Back to the slap. Witness Tyler Steenberg testified that he was trying to have a conversation with Jake Bean, but he remembered observing Dillon Dubay slapping EM's buttocks. He described it as a small slap, not hard, but not soft either, and he did not hear any reaction from EM. Steenberg and also testified that the slap didn't happen while EM was performing oral sex as she testified, but in between two instances of oral sex. On cross examination, he agreed that the slap looked like four-play. It was not abusive and the mood was playful at the time. Steenberg and also testified he had a phone call later with Dillon Dubay, who asked him not to tell anyone what he did, because he was going to explain it himself when he met with hockey Canada. Steenberg and said he assumed Dubay's comment could only have been about the slap, because that's all he saw in relation to Dubay. He says he did not see the oral sex. As for Dubay, he didn't testify at trial and he didn't mention anything about a slap in his 2018 police interview. He only mentioned oral sex. When hockey Canada compelled him to be interviewed by investigate a robotai, Dillon Dubay did admit that he slapped EM on the bum once or twice, but that statement was not admitted into evidence. The same with Alex for Menton's interview with robotai. He told her he didn't see anyone slap EM, but four days later he had a second interview where he admitted that Dillon Dubay had asked him to lie about the incident. According to robotai's notes, Alex for Menton said that Dillon Dubay "walked up and tapped EM on the butt and walked away. It was a tap but loud enough to hear." Again, this wasn't admitted into evidence. The defense pointed out that it would make no sense for Dillon Dubay to have admitted to the police that he received oral sex, but left out a more minor contact like a slap. The crown asked why then would Dillon Dubay ask Halden and Steenbergen to lie about it? There's of course was the only evidence of a slap the crown could refer to, because the other evidence was inadmissible, including Halden's text message about Dubay smacking EM's butt so hard. Justice Carassia concluded that while she accepted the slap took place, she did not accept that Dillon Dubay was one of several men who took turns slapping EM as hard as they could, as she performed oral sex on one of them. The judge referred to Steenbergen's evidence that the slap was light and playful and didn't occur at the same time as EM was performing oral sex. And she also referred to Halden's testimony that he couldn't remember the slap or the sequence of events, and that he ultimately left room 209 because he was uncomfortable, as well as his earlier statement that he couldn't remember if EM was clothed. The judge pointed out that the issue was not that each of the acts happened, but rather proof of lack of consent. He described it as this one discrete slap that caused no bodily harm, and concluded that it would be wrong of her to single the slap out from her overall conclusion that Dubay's participation was consensual. Writing in the Globe and Mail, journalist Robin Doolittle noted cryptically that this was a surprising conclusion for many. Others like Kelly Favreau and J.B. also found it surprising, but deeply upsetting. EM testified about something that happened to her, that hurt her, and that she told whoever it was to stop. And let's be clear, these were 6'200" elite athletes. Young men often seen high-fiving each other with crushing force and slapping each other on the butt to celebrate goals. How could anyone judge the impact of that same gesture on a 5'4" slim woman and conclude it was harmless that it caused no bodily harm? Legal definitions of consent under Canadian law require it to be clear, specific, and present at the time of each act. There is no evidence whatsoever that EM ever asked to be slapped, knew she was going to be slapped, or consented to it. And what makes the judges' conclusion even more unbelievable is what's left out of her analysis entirely, that howden told the police he heard EM crying or weeping that it sounded like skin to skin, and that EM didn't ask for that. This was admissible evidence that went directly to the impact of the slap and to the lack of consent, yet it's absent from the judges' analysis. The evidence that Dylan DuBay asked howden and Steen Bergen to lie about the slap, which suggests a level of awareness that there was something there that needed to be covered up, was at least acknowledged, but the judge never returned to the point or commented about it. Because she had already decided that EM was sexually forward, the aggressor, the logic seemed to follow that EM had no grounds to complain. If EM was the one driving things, then the slap just became part of the scene. And this brings us to one of the starkest imbalances in sexual assault trials. The way evidence has handled. In this case, some of the most powerful evidence that could have supported EM was ruled inadmissible. Things like messages, corroborating accounts, and evidence of multiple inconsistencies and contradictions on the part of the accused and their teammates. That's because the rules of evidence are designed to protect the right of the accused to a fair trial, but sometimes that means crucial context is slipped away with it, as we've seen with the alleged slap. And while the accused has defense lawyers fighting to keep that evidence out, the victim complainant is nothing more than a crown witness. Even if EM paid for her own lawyer to represent her interests, which she did, there is no actual place for that lawyer in the trial. That lawyer cannot object on EM's behalf or argue for evidence to be admitted or not admitted. I think so many people have the misunderstanding that the crown does that. and that the crown will stand up and say, "Objection, that's my homework. That's what works on TV." That survivor J.B. from the Jacob Hogard trial again, and she has some thoughts about the reality of what sexual assault complainants face during trial. The fact that they can't talk to anyone about their evidence creates a very lonely experience. "Yeah, it's not like what you see on TV where you have someone advocating for you. The crown is there only to present their case. Like, it's the defendant versus the crown. It's not the defendant versus the victim. Even if she hired her own lawyer and they were using tactics that weren't allowed, they can't help you during cross-examination, and that's the hardest part of the trial. She wouldn't have been allowed to talk to her lawyer. You're not allowed to talk to anyone about your evidence. In my case, I couldn't speak to anyone who was testifying, which were all of my friends. You can't speak to the crown. You can't speak to a detective. Even your victim support person will not speak to you about evidence." Not only that, when you're in court and the defendant is sitting next to their lawyer, they whisper things back and forth all day. The whole trial and you're sitting there thinking, "What are they saying about me?" Like, I wish I had someone that I could whisper to you and I could ask, "Can I say this or are they allowed to do that?" But we're not awarded the same protection that the defendants are awarded. But then at the same time, we're held to an impossible standard that they're not held to. And I don't know how to fix it, to be honest. I mean, it works how it was supposed to work. Yeah, it's not broken. This is how it was built. Other imbalances even more fundamental. The accused has the right to silence, but the complainant has no such choice. As a crown witness, EM was required to take the stand and endure seven days of aggressive cross-examination. Her past statements picked apart for inconsistencies against her testimony at trial. The result is a process where her credibility is scrutinized under a microscope, while the accused can sit silently, shielded by legal protections. And that's the way it's supposed to be. There's a high burden of proof for a reason. But there's no denying that it's just another aspect of a sexual assault trial that is blatantly unfair to the victim complainant. And we've seen that go even further with this trial. Even when the evidence is admitted, that doesn't mean it will be taken into consideration by a judge in a judge alone trial. We've pointed out many examples where the judge acknowledged evidence but did not appear to consider it as part of her analysis. And in some cases, admissible evidence that was highly relevant to the matter at hand was entirely absent from the written decision. Of course, a trial of this size involves a huge amount of evidence to sort through. But it's telling that the relevant, admissible evidence that seemed to slip through the cracks of the judge's analysis was also evidence that would have benefited EM. At 3.25am, Michael McLeod filmed the first consent video, the one that showed EM wiping her eye. As you recall, she testified this was likely after she had been crying, which was corroborated by Brett Houdin's evidence that he heard her crying or weeping as he left. But because EM couldn't remember the video being filmed, the judge dismissed any hint of distress as speculation and took EM smile in the video as reliable evidence of her demeanor that she was being sexually forward. When Carter Hart testified, he agreed he could be heard on that video saying, "I'll get fabs," meaning a player called Don Teo Fabro. Two minutes later, Hart sent Fabro a text message telling him to "get to 2009." He testified that he knew Fabro was single. Fabro never showed up, but the so-called Junior Hockey Bible literally glorified this exact scenario. It awarded points for helping a teammate get laid as if women existed only to be passed around. Again, there's no evidence that the hockey player's new or were aware of that toxic playbook. But what we see in Room 209 lines up almost word for word with it. There's no evidence at any point that any of them stopped to ask EM if she was okay with more men being invited. Many of them said they didn't even speak to her. Her consent was not part of the conversation. They just took Maclaude's word that she was willing to offer the more sexual favors. Her compliance and lack of resistance was an opportunity to see how much further they could push it, how much more they could try to get out of her. Michael Maclaude's version of events came from his police statement and he mentions nothing about EM being naked on the floor or anything about a bedsheet at any time, nor does he mention any slap. He is another clip from his police interview. And remember, consent under Canadian law must be specific. She looked like she was kind of leading the way and kind of asking for it. I can't ask for it. What did you see that brought you about? She just seemed like excited and she wanted to do stuff with guys and what was she saying? She just said stuff like this. I want to do this. This is what I want tonight. Stuff like that. And then she got on the bed, naked and said, "Okay, who's going to have such a view?" According to Maclaude's police statement, EM called them "pussies" and was upset that no one would have sex with her. He said he had to calm her down by telling her it was only because no one wanted to have sex in front of nine other guys. He said she felt better after that. Maclaude told the police that EM eventually offered oral sex, which he received along with Carter Hart and possibly Dylan Dubay. He called the whole situation weird and unexpected. One of EM's testimony included an incident related to golf clubs and golf balls. The hockey players were of course in London, Ontario for a weekend of hockey Canada events to celebrate their World Junior Championship win. And one of those events was a golf tournament. There were golf clubs and balls in the hotel room. EM testified that during the two-hour incident, some of the players were joking and wondering out loud if they could put a golf ball inside her or even a whole golf club into her vagina. Dylan Dubay told the police that at one point he had a golf club in his hands and it was "beside her not really." He said EM asked him something like, "Are you going to play golf or fuck me?" When the detective asked Dubay whether anyone suggested putting the golf club in EM's vagina, he said, "No, not at all." He also said he never felt at any point that EM did not want to be there or that she wanted to leave. He said it felt like she wanted to be there more than the guys. This statement was admitted into evidence. But in Dubay's statement to hockey Canada independent investigator Robert Hie two years later, which was not admitted into evidence for reasons we've explained, Dubay said that not only did he slap EM on the bum once or twice, but at one point he said he was standing over the top of EM with a golf club in his hand. He conceded he "maybe" touched her buttocks with the golf club. This was corroborated by Alex Fomenton, who told Robert Hie that he saw Dubay with a golf club when EM was on all fours on the ground, according to Robert Hie's notes about what Fomenton said. "I did not see contact with EM plus club, but saw Dubay hold golf club in right hand and make putting practice motions and swing towards her butt." Neither of these statements were admitted into evidence. The judge notes that Fomenton told the police he did not hear any comments about golf clubs and neither did McCloud. EM testified that the comments were threatening and made her feel scared and fearful because she didn't know these men. On cross examination, the defense pointed out that her testimony was inconsistent with her original police statement. EM only mentioned the men joking about inserting golf balls or clubs into her vagina. She didn't say anything about feeling intimidated or frightened because of those comments until a few years later when she launched her civil claim. EM responded by saying it took a couple of years to process her her fear. The defense suggested this wasn't reflective of her honest memory and spun it as though EM thought everything was fine and jokey at the time and only later reframed it as something that caused her to be fearful. That argument leans directly on a rape myth that if the complainant doesn't immediately name it as a rape and articulate their fear, then it must not have been real and they're lying. And as we discuss last episode, decades of trauma research shows that when the brain's defense circuitry activates during perceived threat or trauma, everything changes, thinking, memory, attention, even how the body responds. The fact that EM says it took a while to process her fear fits squarely within this pattern. This is one of many reasons why sexual assault remains the most underreported crime in Canada. This phenomenon of minimizing is so common it has a name, un-ignolaged rape. Multiple studies show that women and girls who have experienced something that legally counts as rape don't always label it that way, especially at first. Complainants might instead think of it as bad sex, a mistake or a miscommunication, something they must have done to bring it on. They might feel their experience wasn't violent enough to qualify as rape and they might not want to cause trouble for the perpetrator because he didn't fit the traditional label of a rapist, you know, the stranger who attacks in the dark. The complainant might even put a positive spin on it as a learning opportunity in an effort to avoid the pressure of having to report it or tell loved ones. Even if the hockey players were only talking about inserting golf balls or clubs into EM's vagina as though it was a joke, those are objectively callous and incredibly insensitive comments made it around the same time that EM was crying. EM testified that this contributed to her ongoing compliance and attempts to appease them so she could leave. But this golf club situation was not part of any of the charges related to sexual assault. Justice Carassia examined it in the context of whether EM was so fearful that she wasn't able to consent. In legal language, was her consent "vitiated" by fear? The judge concluded, "I do not accept EM's evidence that these comments caused her to be fearful. That evidence is inconsistent with the way she described it in the first statement to police. Other than the sexual touching described by EM, there was no other physical force applied to her by anyone in the room to cause her to remain there. And certainly no violence or threats of violence." And now we get to the splits involving the fifth accused player, Kellen Foot. He did not participate in any explicit sexual acts the same way that his fellow accused did. The judge estimates that Foot entered room 209 at about 3.30am, just after the slap and the first consent video was filmed. He performed the act that resulted in him being charged with sexual assault and then left. EM testified that as she lay on the bedsheet on the ground, the player identified as Kellen Foot did the splits right over her face and was not wearing any pants or underwear. She said he "put his penis right on my face." And the other men in the room were laughing and making fun of her. It was gross and degrading, she said. Alex Formentan had backed up EM's testimony. He remembered Kellen Foot taking his pants off and doing the splits over EM's upper body. He said that she was okay with it. But that was Alex Formentan's statement to hockey Canada investigator Robert Tye, which was inadmissible at trial. Dylan DuBay also told Robert Tye he saw Kellen Foot do the splits over EM's face, although he didn't mention clothing or not. These interviews led Robert Tye to alleged that Foot teabagged EM or placed his testicles in her face without her consent, according to reporting by Jacques Galant for the Toronto Star. Carter Hart was the only one of the accused to testify. He said that Foot was fully clothed. It was only a three-quarter splits, not a full splits. He didn't touch EM and it was only brief. Foot did not view it as sexual and described EM as laughing along with them. Witness Tyler Steenbergen wasn't as firm. He testified he only had a partial view of Kellen Foot doing the splits, and he couldn't see whether he was clothed or whether Foot made contact with EM. All he could say was that he didn't see Foot remove his clothing. Steenbergen also testified to receiving a phone call from Kellen Foot afterwards, similar to the one he received from Dylan DuBay, but he could no longer remember anything that was said in that call. Brett Houten also testified to receiving a phone call from Kellen Foot, who told him to "leave his name out of it." But Houten's testimony included nothing about actually witnessing the splits. Kellen Foot's defense lawyer, Giuliana Greenspan, daughter of Edward Greenspan, argued Houten was unreliable, and there were other possibilities for Foot's call to Steenbergen other than a guilty mind. Greenspan argued that the splits was his party trick, that he was fully clothed. It was done and jest. The act was not threatening and not sexual and he did not touch EM. And as for EM, Greenspan pointed out that she never told the police that a penis grays to her face, and the trial was the first time she mentioned that. Therefore she must have been lying now to bolster her claim. EM testified, "I think I can clearly remember having a penis in my face. It would not have been a shocking in my mind if he had shorts or pants on." She explained that she found it awkward to tell the police because she'd never heard of anything like that happening before. The judge in her analysis reduced EM's explanation to five words. It was difficult to say that, which was then dismissed as not making sense because EM clearly had no trouble describing other men with their penises exposed. But that doesn't seem to be the point that EM was making at all. It's not that it was difficult to tell the police about another exposed penis. She's obviously saying it happened while the man was doing the splits over her face, which she said was awkward to describe since she'd never heard of such an act, what the defense referred to as a party trick, or as robot eye concluded, the act of tea bagging. And what makes the whole thing worse is that what EM actually said to the police was misrepresented. She said the player identified as "calon foot," quote, "just did the splits on my face, just to put it in my face kind of." What else could it have possibly meant? So because EM didn't use the precise language of exposed penis and her initial police statement, the defense was able to weaponize it into an accusation that she must be lying now that she uses it at trial. And the judge in her written decision rounds the whole thing out by flattening EM's nuanced explanation about awkwardness into a hollow sound bite. It was difficult to say that. Framing it like this distorted EM's words removed the context and left her looking unreliable. An EM continued to get it from Footh's defense lawyer Greenspan, who flipped the script and suggested EM tried to turn an innocent party trick into a sexual encounter by touching foot as he did the splits. EM pushed back. "I was lying down and my arms were at my side. He put his full penis and testicles on my face. It was all there. It was on my face." The defense suggested that EM was only upset because the men were having fun and laughing without her and she wanted attention. EM pushed back again. They were laughing at her expense. And of the party trick, she said, "This was not something I asked for. I got no notice before that happened to me. No." Justice Carassia concluded that the splits happened, but she was not satisfied foot had no pants on, or that he applied or threatened sexual force without EM's consent, which is the threshold for sexual assault. On that basis, she found him not guilty. The judge did not recognize the splits as part of a broader pattern of degrading and humiliating behaviour towards it. It's instead stripped of context and reduced to harmless horseplay, an isolated joke. Particularly troubling is how the judge represented Carter Hart's testimony. She wrote that Hart described the men laughing and joking, that "E.M. laughed too." And she then laid back so foot could do the splits. The inferences that "E.M. knew about it and allowed it to happen." But Hart's actual evidence did not go that far according to the same written decision. He did not say or even infer that "E.M. laid back to allow it" as the judges framing suggests. This was the pattern throughout. The evidence of the men's conduct was excused and downplayed, while E.M.'s testimony was cut apart, distorted and framed as unreliable. Next, the second consent video and what happened when E.M. left the hotel room. [Music] Michael McCloud told the police that everyone started leaving at around 3.30 to 4.00 a.m. and that E.M. got up and got dressed and undressed a couple of times and then undressed again. Much was made in court of the fact that E.M. agreed with the defences suggestion that she didn't think the men in Room 209 would have physically stopped her from leaving. But again, the actual details in her testimony paint a much more complex picture. E.M. testified that she was crying in the room twice, either because of the comments the men were making, or because she was being laughed at. She recalled moments where she tried to get up, put her clothes on and leave. In each time, someone would come over and convince her to stay. Kallenfoot's defense lawyer Greenspan made a big fuss about E.M. shoes, suggesting that she never actually put her shoes on all the time she said she was trying to leave. Therefore, she wasn't being serious about it. E.M. explained that she didn't think she got so far as to put her shoes back on because someone would talk her back to the bedsheet on the floor. At one point, she described someone putting their arms around her, guiding her back, trying to convince her they were all having fun. This is one of the reasons she felt she couldn't leave until they were all satisfied. And she testified that someone she couldn't identify who said, "Oh, she's crying. Don't let her go." In the written decision, the judge noted, quote, "E.M. agreed that this was the first time she told anyone that someone said those words to her." It certainly looks like E.M. introduced new details at trial, therefore she's once again unreliable. But the written decision makes no mention of E.M.'s initial statements to police, where she said she heard someone say, "Don't let her go or don't let her leave." It appears that the judge only honed in on the specific words of, "Oh, she's crying. Don't let her go." That evidence was discounted. E.M.'s claim was even backed up by Brett Houdin In his earlier hockey Canada interview, which was admitted as evidence, he said he heard teammates tell her, "Oh, no baby, don't leave." We know Houdin also described her crying or weeping, and in the same interview, he said that McCloud showed him the consent video the following day, which he said was taken after E.M. had her little episode. At trial, of course, Houdin said he no longer remembered what happened, but conceded his earlier statement reflected what he knew to be true at the time. But this information suggests that McCloud's reaction to seeing E.M. was crying was to get out his phone to record her saying she consented. McCloud even confirmed to the police that E.M. was upset, but said it was because no one would have sex with her, so he tried to calm her down. He explained he decided to film a second consent video to get her consent and to confirm that E.M. was not drunk. The second consent video was filmed at 4.26 a.m. That's the 12-second video where E.M. is seen standing, holding a white towel in front of her body. McCloud tells her to say it. The judge noted that E.M. was smiling and looking at the camera and didn't appear drunk when she replied, "Okay, it was all consensual. Are you recording me?" McCloud said yes, and she repeated that it was consensual. McCloud presses her again. "What else?" She said, "Would you. you are so paranoid. Holy. I enjoyed it. It was fine. It was all consensual. I am so sorry, but that's why I can't do this right now." McCloud told the police that E.M. mentioned being paranoid because he asked her at least five times if she was okay with the whole night. E.M. testified that she was saying what he wanted her to say. She still felt like she was on autopilot at that time. McCloud told the police that after he filmed that video, he hopped in the shower and then E.M. came in with him and they had sex. In cross-examination, E.M. agreed that McCloud got into the shower alone at first and asked her to join him. When it was suggested that she made a choice to join him, she said she still felt like she did not have a choice. She felt like it was the final thing she needed to do before she could leave. Brett Howden appears around here as well, which is strange since he said he no-bout after the slap. It's very hard to pin down what happened and what order and who was there. But for what it's worth, Howden testified that he saw E.M. come out of the bathroom fully clothed and she called Mikey by the wrong name. Howden said that McCloud told her that was not his name and asked why you even hear. According to Howden, E.M. also kept saying, "I'm too sober for this." He added, "You could tell she didn't want to leave. She made it look like she wanted to, but she didn't want to." There's no evidence that McCloud showed any genuine care for E.M.'s well-being. He didn't treat the fact that she cried during the incident as a glaring red flag that she was not consenting. And neither did the judge. Justice Carassia pointed out E.M.'s initial statements to the police, where she said she did not think that the men would have physically stopped her from leaving. Before, quote, "There is no evidence that anyone applied force or threatened to apply force to the complainant to cause her to remain in the room naked." E.M. recalled that McCloud and his roommate Alex Fomenton wanted to know if she was leaving soon because they had a golf tournament early the next day. She agreed that at this point she began to think that McCloud was a jerk. She also got upset with him when he asked her if she was sure she didn't have any STDs. She felt he was being rude. He got into bed to go to sleep. He did not walk her to the door or call her a cab or an Uber. Defensoria Greenspan also made a fuss about the fact that after E.M. left the hotel room, she came back, saying she'd left a ring behind and she wanted to look for it. More proof that she didn't want to leave, apparently. E.M. testified the men seemed annoyed to see her again. They helped her look for the ring but couldn't find it. She felt silly, burst into tears and left. The defense argued that this is why she was upset when she left the hotel room. Hotel surveillance shows E.M. leaving the hotel at 4.46 a.m. She testified she called herself an Uber, then called her friend because she didn't want to be alone. She was crying uncontrollably. When she got home, she turned on the shower and continued crying. Justice Carassia concluded that in all charges, the crown was not able to prove beyond a reasonable doubt that E.M. did not consent. There was no analysis of whether the accused hockey players took any reasonable steps to ensure consent was clear, specific and present at the time of each act, consistent with Canadian law. In this case, informed consent would have only been possible if Michael McLeod had explicitly asked E.M. whether she wanted to engage in group sex, before he messaged his teammates to invite them, and there's no evidence that he asked. The only evidence that it was E.M.'s idea came from McLeod himself three years later. The judges gave her a chance to talk to her about the crime. conclusion that EM consented to everything appears to be only based on EM's evidence. But to be thorough about it, an examination was needed of whether EM's consent may have been caused by something else. One of those factors was fear. In other words, if she only consented because she was scared not to. As you recall from earlier in this series, EM had testified that after McLeod's teammates began entering the hotel room without her knowledge or consent and told her to get on the bed sheet on the floor then put their penises on her face and told her to spit on it and suck on it. She felt unsafe and went into autopilot, complying with their requests to survive and get out of the room safely. She testified that as she was performing oral sex she felt someone spitting on her back, multiple people took turns slapping her, hitting her as hard as they could. It hurt and she told them to stop. She cried at several points during the incident. There's no inconsistencies between her testimony about this and any of her other statements. And although EM acknowledged she might have looked like she was enjoying it, she testified she felt confused after feeling intimidated and bullied into compliance. And she felt like she was quote, "watching my body doing this and acting like I'm liking it and doing what they're wanting to see from me and it was confusing to know if I was liking the attention or not." And then there's the players joking about inserting golf clubs and golf balls into her vagina. The only inconsistency there is that she didn't mention it made her scared until later. Another aspect of EM's evidence that the judge referred to in assessing whether her consent was "vitiated by fear" was related to that 15-minute window theory we went through last episode. You'll recall the first players into the room were Kachuk and Radish, and Kachuk testified that EM asked him flirtatiously for a bite of his pizza and he ignored her, and McLeod was darting in and out of the hotel room on a recruitment mission. The defense's theory was that after Kachuk and Radish left, there was a 15-minute window where EM was alone with McLeod, and the fact that she didn't leave suggested she was waiting for more players to enter the room. We went over how this is not only a rape myth, but it relies entirely on Kachuk's own problematic estimate of the time he and Radish left the hotel room, and it's not corroborated by any other evidence. Mrs. Carassia referred to it again, noting that because EM didn't leave during this 15-minute window, she can't have been scared or fearful. Quoting from the written decision If I accept EM's evidence that she did not know that the men would be entering room 209, and if she was honestly fearful once Kachuk and Radish entered the room, there is an interval of about 15 minutes after they left and before the other men entered the room. During that time, EM went to the bathroom where her clothes were located and according to her evidence, she emerged naked. She did not accept that there was any passage of time between when the first two men left the room and others entered. That's a bit of a distortion of what EM actually said. It wasn't that she denied any passage of time, and even if she did, why should she be held against a 15-minute window that amounted to nothing but speculation? The thing that EM disagreed with was that she was alone with MacLeod for a period of time before the other men entered the room. It was her testimony that while Radish and Kachuk were still in the room, she got up naked, went to the bathroom, and when she came out, still naked, there were more men in the room. That was a wrong move too, apparently. Reframed as another strike against her credibility, quoting from the judge's written decision again, "At this point, EM chose to walk into a room full of men while naked. No one directed her to do this, nor did anyone prevent her from going back into the bathroom and putting her clothes on. No one had threatened her or applied any force to her. EM made no effort to leave the room. Up until this point, there has been no sexual contact with anyone other than consensually with Mr. MacLeod. EM provided no satisfactory answer as to why she chose to do this." The implication is clear. A real victim wouldn't have done that unless she was forced to or threatened. But that's another discredited rate myth, just like the idea that she made no effort to leave the room, or that no one applied force or threats to her to cause her to remain in the room naked. In this rate myth, shifts the responsibility onto the woman to get herself out, rather than onto the men who put her in that position and tried to keep her there. Besides, even when EM did testify to a perception of threats, like later on when the players were joking about putting golf balls or a golf club inside her, that was dismissed. The judge concluded, "The inconsistencies in EM's evidence regarding her fear, along with the other evidence referred to, causes me to have reasonable doubt about whether an honestly held fear was the reason for her participation in the sexual activity." The judge concluded there was reasonable doubt that EM's consent was "vitiated by fear." She wasn't fearful, therefore that wasn't a reason for her consent. So as we asked in the last episode, why does it seem like the decades of scientific findings about the impact of trauma wasn't taken into consideration in this case even once? Well, that's because it literally wasn't. The crown submitted that it's well established in law that there's no usual way a person responds to sexual assault, saying, "Science tells us that when a person is exposed to a threatening situation that causes extreme fear, stress, or a feeling they cannot escape, the brain and body can flood with stress chemicals." In response, Justice Carosey had noted that no evidence was called in the Hockey Canada trial about what "science" says on this point. The word "science" is put in quotation marks. As for why no such evidence was called, the judge pointed to an appeal decision from the first Jacob Hogard trial, that's JB's trial. In that case, the Ontario Court of Appeal had found that the trial judged erred in admitting expert testimony on the effects of trauma. Now I'll be the first to say what I don't know about sighting case law could fill a warehouse. But when I read that appeal decision closely, I was troubled about the context that was left out. The error wasn't about the substance of the expert evidence at all. It was about the purpose for calling the expert in the first place. That expert Dr. Laurie Haskell explained the neurobiology of trauma, how there is no single way survivors of sexual assault might react and how courts often misinterpret those reactions as unreliability. The appeals court found that while her evidence was valid, the intent behind calling her was simply to help the jury with their reasoning. And it ruled that it would have been sufficient for the trial judge to deliver those courtions directly. And in fact, that's exactly what happened in the first hogar trial. The judge repeatedly instructed the jury not to rely on stereotypes or rape myths. So the appeals court found that having Dr. Haskell as an expert witness as well was essentially double handling. The issue was not that trauma science is irrelevant or inaccurate. It was that the trial judges instructions to the jury already covered the same ground. But in the hockey Canada trial, two separate juries were dismissed, resulting in a judgealone trial. And as the trial of fact, it was ultimately Justice Carosea's choice about whether to consider the impact of trauma in weighing the evidence and reaching her verdicts. It's worth noting that there is only one place in the entire 90 page written decision that any form of the word trauma appears. And that's the hogar reference I've just told you about. As you recall from earlier in this series, the Supreme Court of Canada has repeatedly emphasized the need to uphold equality and dignity in criminal law by addressing myths and stereotypes about complainance and sexual assault cases. In one recent decision known as RV Croc from 2024, the Supreme Court found that such myths quote, "Jepadise the court's truth-finding function imposed harsh and irrelevant burdens and undermine a fair trial, which must be fair not only to the accused, but also to the complainant and the public." The decision also recognized that measures can be implemented to avoid reliance on these myths without compromising the constitutional rights of the accused. Justice Carassia even acknowledged this in writing, quote, "The court cannot and will not engage in stereotypical reasoning." So why does it feel like the entire written decision for this case read like the very thing the judge said she would not do? And why? When noting there was no evidence called about the science of how people react to threatening situations, did the judge choose to put the word "science" in quotation marks? As a member of the public, I find this troubling coming from a judge acting as a "try of fact" in one of the most complex and high-profile sexual assault cases Canada has ever seen. Does it mean she doesn't believe in science? Or just that specific field of science, the neurobiology of trauma? There's no way to know, but either are troubling. And it defies logic to acknowledge that the court will not engage in stereotypical reasoning about complainance and sexual assault cases while simultaneously dismissing the science that explains why they commonly react to the way they do. In the following paragraph of the written decision, Justice Caracier cites other case law to effectively state that judges are already equipped to assess the credibility and reliability of witnesses based on their experience and common knowledge. This is the framework she used to assess the witnesses. But I find this troubling as well. No responses like freezing, dissociation, or appeasement and compliance end the science behind it and not part of most people's common knowledge or experience unless they've received specialized training or education. And there has been a strong push for this kind of education for judges in Canada to give them the tools to recognize patterns of normal trauma responses rather than interpret them as signs of unreliability based on stereotypical reasoning. But it hasn't happened yet. Sexual assault complainance are likely already aware of the treatment they'll get from the defense when they walk into a courtroom. But with no mandated judicial training, they might end up getting that from a judge as well. It's fair to say the hockey Canada trial was not trauma-informed. Once the science of trauma was dismissed, there was no framework to assist the court in understanding why sexual assault complainance often react in ways that might seem confusing, contradictory or even counterintuitive. Remember, enthusiastic consent is the goal. If they're crying on and off and seem to be getting angry and frustrated after being in an objectively humiliating position, that's not enthusiastic consent. And in a sexual assault trial, when a court discards the insights of established trauma research entirely, the end result can only be that the complainance behavior is judged against outdated notions of how a real victim would act. This is directly at odds with the Supreme Court of Canada's clear direction on court striving to eradicate myths and stereotypes from their decisions. And the conclusion can only be that her evidence is interpreted as unreliable. And while it might not be the court's role to educate the public about trauma, rape myths or the nuances of consent, every written decision has ripple effects far beyond the courtroom. Judges don't just decide cases, they shape how the public, the media and future courts understand sexual assault. That means they have an opportunity and arguably a responsibility to push back against harmful stereotypes and reflect the realities of trauma. This ruling did the exact opposite, erasing trauma altogether, taking away the context of EM's testimony and measuring it against those same rape myths and stereotypes that a woman who doesn't scream, fight or run away must be consenting, that smiling or nervous laughter equals willingness, that if she didn't use the word fear in her first police statement, she must not have been afraid. And that's why we see the onus clearly shifted to EM to prove she was scared enough or resisted enough, rather than the men not to exploit her. To be clear, even if justice caraccia didn't dismiss the science of trauma and instead chose to weigh EM's evidence through a trauma-informed lens, that doesn't mean the verdicts would have been any different. It wouldn't have lowered the high burden of proof required for conviction, but it would have raised the standard of justice and maintained public trust in the justice system's ability to uphold the rule of law, maintain order and ensure fairness. The judge could still have found all those hockey players not guilty while also respecting the humanity and dignity of the complainant. And for some reason, she chose not to. At this point, the file got too long, so I had to split it into two. The rest of it will be available shortly. Within 24 hours, thanks again for your patience. [BLANK_AUDIO]