First police investigation of junior hockey players in sex assault case 'cursory at best,' expert says
Western University law professor who is a sex assault expert reviews police court file
WARNING: This article contains graphic content and may affect those who have experienced sexual violence or know someone affected by it.
When police in London, Ont., carried out two separate investigations into the 2018 sexual assault allegations that have rocked Hockey Canada, they examined the same series of events, but came to different conclusions.
The first investigation into allegations that members of the 2018 Canadian world junior team participated in a group sexual assault at a downtown hotel concluded in February 2019 that there weren't "reasonable grounds to believe sexual assault occurred."
Three years later, after the allegations became public, London police reopened their investigation.
According to documents filed in court, police now say they have reasonable grounds to believe five junior hockey players sexually assaulted a 20-year-old woman at the hotel.
- WATCH "Anatomy of a Scandal 2" on The Fifth Estate on CBC-TV on Thursday at 9 p.m. or stream on CBC Gem.
Melanie Randall, a law professor at Western University in London and a legal expert on sexual assaults, says this about-face shows the original investigation was "cursory at best."
"Some of the things [the police are] looking into now clearly should have been looked into in 2018 and 2019," Randall told The Fifth Estate.
London police Chief Stephen Williams, who initiated the review of the first investigation, declined to comment.
"This remains an open and active investigation, therefore it is not appropriate for Chief Williams to speak to it at this time," a media representative for London police told The Fifth Estate.
Understanding consent
The fallout of what is alleged to have happened in that hotel room five years ago still echoes across Canada.
Since the first news reports about the alleged sexual assault came out in May 2022, the board of directors and several managers of Hockey Canada have resigned. The organization's finances and policies have come under scrutiny.
Questions are now also being raised about how London police handled the allegations.
"It may have been the case that the investigating officer made some assumptions about what happened to assume that there were no reasonable or probable grounds that a criminal event took place," Randall told The Fifth Estate.
After a Hockey Canada Foundation gala in London in June 2018, some members of the junior hockey team went to Jack's, a local pub.
According to a statement of claim filed by the alleged victim, E.M., they met her at Jack's. The 20-year-old London native had come into the pub with friends. It was Monday, a $1 beer night in Jack's.
In her statement of claim, E.M. alleges that junior hockey players got her drunk, buying her drinks and shots. She says she became intoxicated, with "glassy eyes, slurred speech, stumbling and loss of balance."
She left Jack's bar with one of the players and went to his room at the Delta Armouries hotel in London, where they had consensual sex, she said in the claim.
After that, the player invited his teammates to the room, and that's when, according to E.M., the sexual assault happened.
The initial police investigation concluded in February 2019 without any charges being laid. There was no public awareness of the case until May 2022 when TSN reported that Hockey Canada had settled the civil lawsuit out of court.
London police reopened the case after a public outcry.
Randall reviewed London police's Information to Obtain (ITO), an affidavit submitted as part of the police's application to the court for a search warrant.
The document lays out their findings as of October 2022, and the reasons why they believe an offence may have been committed.
- Junior hockey players investigated by police in at least 15 group sexual assault cases in Canada since 1989
- Players from Canada's 2018 world junior hockey team respond to investigation of alleged sexual assault
The Globe and Mail first published details of the document in December 2022.
"It's the first time we've got a sense of what happened that night from the players' perspective," Robyn Doolittle, an investigative reporter for The Globe and Mail, told The Fifth Estate.
The document shows the woman and the players agree, in general, on what happened, but disagree on one key point: her consent.
E.M. said she agreed to go to the hotel room with one player, but did not agree on other players coming into the room. Players who were interviewed by police see it differently.
WATCH | Anatomy of a Scandal on The Fifth Estate:
"Passivity does not equal consent. Silence does not equal consent," Randall said after reviewing the ITO.
According to the court document, during the initial investigation, E.M. told police one of the players never spoke to her before having sex with her.
"How did you ascertain that E.M. was consenting if you did not speak to her?" Doolittle told The Fifth Estate. "That's a question that [the player] may have to answer at some point."
A big concern for Randall is the fact that the first investigation showed that London police might have not understood legally what consent should be.
"The affirmative consent standard requires active communicated consent to the sexual activity in question that is contemporaneous. It can't be given in advance. It can't be given after the fact," Randall said.
Not fully understanding what consent means may have contributed to the decision not to pursue the case in 2019, the expert believes.
Police diligence questioned
According to Randall, the police didn't do sufficient due diligence in pursuing all the investigative avenues that should have been followed.
"The police should have interviewed far more of the players," Randall said. "That was nowhere near the thoroughness that it should have been."
One of the witnesses police didn't interview during the first investigation was M.M. "an older gentleman," as E.M. described him, who was at Jack's with the group of junior players.
M.M. could be seen in the photos that were posted on Jack's Facebook page after that night. Those pictures were removed after they were included in a broadcast by The Fifth Estate in September 2022.
"Apparently, he said to the young woman to take care of the player," Randall said. "One can only be left to interpret what that means."
WATCH | Law professor assesses documents filed in court:
Neither police nor E.M. suggest M.M. was involved with the alleged sexual assault.
M.M. declined to comment after The Fifth Estate contacted him.
According to the court document, initially police were not aware of a group chat between junior hockey players who had been in London.
After police reopened the investigation, lawyers for four players contacted investigators and provided conversations from the original 2018 hockey team group chat that were saved on three thumb drives.
One of those players was in the room with E.M. but, according to the court document, is not suspected of being involved in the alleged sexual assault.
"I think there are really important questions to be asked here about why [the group chat] was not uncovered the first time around, I mean this is pretty basic stuff," Doolittle told The Fifth Estate.
Redacted reasoning
The three thumb drives are still in a police locker. Police have applied for a court authorization in order to view them.
Randall finds the fact that the first investigation didn't obtain the group chat "unconscionable."
That is "why I said the investigation appears to have been superficial," Randall said. "It may have been the case that the investigating officer ... assumed that there were no reasonable or probable grounds that a criminal event took place."
- Documents reveal Hockey Canada received $14M in federal funds over the past 2 years
- Hockey Canada members elect new board of directors
The initial investigation concluded in February 2019 without any charges being laid. The reasoning behind that decision was redacted from the affidavit police submitted to court in December.
"Police are not well known as an institution for taking responsibility and being accountable and saying: 'We screwed up,'" Randall said.
"We can only speculate because there's an inadequate amount of information."
If you have tips on this story, please email fifthtips@cbc.ca.
If you or someone you know has been affected by sexual assault, help is available through: Endingviolencecanada.org. Free and confidential one-on-one mental health support from professionals is available 24/7 from Wellness Together Canada by calling 1-866-585-0445 or texting WELLNESS to 686868 for youth and 741741 for adults. If you are in immediate danger or fear for your safety, call 911.