How a judge-alone trial may impact the Hockey Canada sexual assault case
Justice Maria Carroccia to decide fate of 5 ex-world junior players in London, Ont., trial
Superior Court Justice Maria Carroccia's decision to discharge the jurors in the case against five former world junior hockey players charged with sexually assaulting a woman in a London, Ont., hotel room in 2018 has raised legal questions about the future of the trial.
On Friday, Carroccia told a packed courtroom that the trial, which began on April 25 with jury selection, would proceed with just a judge hearing the case, meaning she alone will determine the legal fate of the defendants. Dillon Dubé, Cal Foote, Alex Formenton, Carter Hart and Michael McLeod — who all had NHL careers but are no longer in the league — have pleaded not guilty.
The sudden change to a judge-alone trial came after a juror sent a note to the judge. It outlined concerns that two of the defence lawyers appeared to be whispering to each other and laughing at some of the jurors while they were entering the courtroom. Lawyers Dan Brown and Hilary Dudding, who represent Formenton, have denied the accusations.
Still, Carroccia determined the jury could no longer be impartial in rendering a verdict and released them.
This is the second time the jury has been dismissed in this case, which centres on events that allegedly occurred after Canada's world junior team attended a Hockey Canada gala in London to celebrate their gold-medal win. Last month, a mistrial was called, again as a result of a jury-lawyer issue, setting the stage for the current trial that began last late month and resumes Tuesday morning.
CBC News spoke Monday to legal experts not associated with the world junior case to get their views on the latest turn of events and what this may mean going forward.
Should the judge have discharged the jury?
Cassandra DeMelo, president of the London Criminal Lawyers' Association, said she believes Carroccia made the right call in deciding to proceed before the judge only, as the jury was showing clear disdain or lack of respect for the defence counsel.
"I don't see how you could have continued with a jury after a comment like that about their alleged behaviour," DeMelo said.
The Crown had initially proposed either a mistrial with a whole new jury or an inquiry of the jury. During an inquiry, the jurors would have been individually interviewed to determine whether they held any biases.
But Toronto-based criminal defence lawyer Laura Metcalfe suggested it may not have even mattered whether those jurors could have set aside their strong resentment toward the lawyers in question.
"I don't see how at the end of the day, if the verdict is unfavourable ... how they [the accused men] and their family members can feel like they had a fair trial," she said.
Eventually, the Crown reluctantly agreed for a judge to hear the remainder of the trial alone. In part, the decision was made to avoid having to retry the case and submit the complainant — E.M., whose identity is protected under a standard publication ban — to another round of testimony that may "further traumatize" her.
Could lawyers who denied ridiculing jurors be disciplined?
The Law Society of Ontario regulates lawyers and paralegals in the province. Any member of the public has the right to file a complaint with the society about a legal professional's behaviour.
DeMelo said that in the world junior hockey case, any complaint would likely have to be made by someone with direct knowledge of the alleged incident — otherwise, it likely wouldn't get very far.
"Someone with direct knowledge who was in the room — either a spectator, a juror, Crown counsel, the judge themselves — can make law society complaints. Lots of different people could make law society complaints who were in that room."
Metcalfe, however, said she doesn't believe the lawyers will face any action.
"Would I be shocked if what occurred here was ever something that should be the subject of discipline? Yes, because I strongly believe that two senior counsel who are officers of the court, who have their reputation on the line are not going to mislead the court when they say [snickering at the jury] is not our intention."
Will the Crown or defence change strategy?
DeMelo said both the Crown and defence counsel will now likely be more to the point.
"With juries, you really have to spell it out," she said. "With judges, you don't necessarily. It's going to benefit all the parties in that they get to just get to the point and maybe not belabour things so much to really drive it home."
Because of that, the defence lawyers may also reconsider whether they still need to call certain witnesses, DeMelo added.
"I could see theoretically one of these hockey players that were a colleague that weren't charged but were nearby — maybe they don't need to call them anymore. Maybe their evidence seems less important."
Metcalfe added that from the defence lawyers' perspective, their closing arguments could possibly be shortened.
"There will be a difference in how you communicate why there is reasonable doubt."
They also would not need to take time to explain to the judge the presumption of innocence or the different rules assessing the evidence of complainants in a sexual assault trial, Metcalfe noted.
Will the change to a judge-alone trial affect its length?
There are various ways a judge-alone trial may save court time, thus shortening how long it takes to complete the trial.
In a jury trial, jurors are often sent out of the courtroom for a time if Crown or defence lawyers need to argue a particular point of law that they don't believe jurors should be present to hear. In the hockey case, that is no longer a concern.
DeMelo said the trial will likely end up being shorter in other significant ways.
For one, without a jury, there's less potential for delays in the proceedings because a juror may be sick or unable to attend on a particular day.
Most substantively, DeMelo said, time could be saved at the end of the trial, when legal counsel and the judge normally address the members of the jury before they head out for deliberations.
In the case of the judge, Carroccia won't have to detail instructions to jurors.
Time may also be saved when it comes to the lawyers giving their closing submissions, DeMelo said, as they would be directed only at the judge.
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With files from Kate Dubinksi