The Court of Public Opinion: Consequences of a Sexual Assault Allegation

The NHL Five: In the Courts

Introduction

The NHL Five, Michael McLeod, Dillon Dube, Cal Foote, Alex Formenton and Carter Hart, were accused of sexual assault on June 19, 2018. This case has gained wide-spread international recognition. The step-father of the victim and Complainant, only known as E.M., contacted human resources for Hockey Canada to report the alleged assaults. 

In the written decision of this case, R v. McLeod, et al., 2025 ONSC 4319,  the Honourable Justice Maria V. Carroccia outlined the facts of the alleged assaults as: 

[1] On June 18, 2018, members of the 2018 Championship Canadian World Junior Hockey Team (“the team”) were gathered in London, Ontario to celebrate their victory in the World Junior Hockey Tournament earlier that year. What occurred during the early morning hours of June 19, 2018, between the accused and the complainant, E.M., forms the subject matter of the charges of sexual assault before the court.

[2] The team was staying together at the Delta Armouries Hotel (“the Delta Hotel” or “the hotel”) located at 325 Dundas Street in London, Ontario. The formal events began on June 18, 2018, with a “ring ceremony” where each member of the team received their championship ring, which was followed by a Gala Dinner and a golf tournament scheduled for the following day.

[3] Following the ring ceremony at the Delta Hotel, the team photograph filed as Exhibit #17 was taken. Later in the evening a Gala Dinner was held where alcohol was served both before and during the dinner.

[4] After dinner, members of the team including Michael McLeod, Carter Hart, Alexander Formenton, Dillon Dubé and Callan Foote returned to the Delta Hotel, changed from their suits into casual clothes and attended at Jack’s Bar on Richmond Row in downtown London. The team arrived at the bar between 11:20 and 11:40 p.m. It was at Jack’s Bar that the complainant, E.M., met the accused and other members of the Canadian World Junior Hockey Team. E.M. eventually left Jack’s Bar with Michael McLeod and returned to his room, room 209 at the Delta Hotel, where they engaged in consensual sexual activity.

[5] E.M. alleges that after the consensual sexual activity concluded she was sexually assaulted by each of the accused. The complainant testified that she did not consent to the sexual activity that took place and she felt that she did not have a choice about whether to engage in the group sexual activity due to intoxication or fear or a combination of both. The defence maintains that E.M. was an active and willing participant in the sexual activity that occurred with each of the accused in room 209, and in fact initiated much of it.

The initial investigation by the London Police Service found that the evidence first provided in 2019 was insufficient to bring charges against the players. In May of 2022, Hockey Canada settled with E.M. for an undisclosed amount of money in relation to her allegations. In February, 2024, the LPS met with media and stated that they had received new evidence that prompted them to open up a new investigation. The NHL then banned the players and stated that they were ineligible to play in the league until the findings of the trial. 

The Trial & Findings of the Court

The central issues of the trial were: 

1. 1. Did the Crown prove its case against each player for sexual assault? and, 

   2. Did E.M. consent to the sexual acts? 

At paragraph 444 and 445, Justice Carroccia outlines the essential elements that the Crown must prove for the offence of sexual assault:

In order to prove the charge of sexual assault, the Crown must prove the actus reus, that is the physical act and the mens rea, the intent required to commit the offence beyond a reasonable doubt. To prove the actus reus of the offence, the Crown must establish the following three elements:

i)         a touching of the complainant by each of the accused,

ii)        that the touching was of a sexual nature, and

iii)     the absence of consent to the sexual touching.

She then stated that the first two elements are objective and the third element, consent, is subjective. Justice Carroccia found that point i) and ii) were objectively true in this case, but that the Crown failed to prove the subjective element of lack of consent by E.M. beyond a reasonable doubt on all counts. 

Consent is defined in s. 273.1(1) of the Criminal Code for the purpose of an offence under s. 271 (sexual assault) of the Code as “the voluntary agreement of the complainant to engage in the sexual activity in question”. Section 273.1(1.1) requires the consent to be present at the time that the sexual activity in question takes place.

Justice Carriccia then went into a discussion of what consent must entail: 

[450] Since consent requires the “voluntary agreement” of the complainant, the complainant must be capable of understanding that they have a choice of whether or not to engage in the sexual activity in question: see R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 56.

[451] The capacity to consent requires that the complainant be capable of understanding what is required for subjective consent – no more, no less: see G.F., at para. 45.

[452] No consent is obtained if the complainant expresses by words or conduct, a lack of agreement to engage in the activity (s. 273.1(2)(d) of the Code) or if the complainant having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity (s. 273.1(2)(e) of the Code).

[453] Intoxication is a factor to be considered in assessing the capacity of a complainant to consent to sexual activity. In G.F., at para. 84, the Court said: “Obviously, equating any degree of intoxication with incapacity would be wrong in law.”

[454] In R. v. S.B., 2023 ONCA 784, at para. 49, the Court of Appeal said:

Proof of intoxication or of a complainant’s lack of memory are not enough to establish lack of capacity, although evidence of both is relevant: see G.F. at para. 86.

[455] The provisions of s. 265(3) of the Code are incorporated into the definition of consent by virtue of s. 273.1(1). That section states that no consent is obtained where the complainant submits or does not resist by reason of threats or fear of the application of force to the complainant (s. 265(3(b)).

When a Court finds that a person did consent to the sexual act, the accuser can rely on section 265(3)(b) to state that they only consented to the act because they were threatened or fearful that the alleged assaulter would use force against them. 

When a Justice is analyzing the evidence of witness testimony, they rely on the witness’ credibility and reliability. Credibility refers to the truthfulness of a witness’s evidence, and reliability refers to the accuracy of the witness testimony. 

Justice Caroccia, in her written decision, found that the Crown failed to prove it’s case of sexual assault against all five accused players. She found that there were several credibility and reliability issues with E.M.’s testimonial evidence, which directly resulted in the acquittal of the charges against the players. She wrote that she was not convinced that E.M. did not consent based on the media evidence, as well as the witness testimony. Further, the Crown failed to prove that if she did consent, it was out of fear. 

As a result, all of the accused were acquitted of the charges. 

The NHL Five: the Court of Public Opinion

The five hockey players were found to not be guilty in a Court of Law, and received no criminal convictions. However, with the push for women’s empowerment sparked heavily by the #MeToo movement, the allegations against the players have had drastic consequences for many, except the accuser. 

The players have been “ineligible” to play in the NHL since the second investigation was made public in 2024, which has resulted in a loss of income, and inability to work in their profession which their entire life has been focused on. In addition, after the decision was released and the verdicts of not guilty were announced, the NHL has stated that the players continue to be “ineligible” to participate in the league, pending their own “review”. 

An NHL article, The Athletic has stated that the NHL will conduct its own internal process on the players ineligibility, and when (if ever) they can return. In a statement provided to The Athletic, a source stated that: 

“The allegations made in this case, even if not determined to have been criminal, were very disturbing and the behavior at issue was unacceptable,” the league said in a statement Thursday. 

“We will be reviewing and considering the judge’s findings. While we conduct that analysis and determine next steps, the players charged in this case are ineligible to play in the league.”

As such, even with a finding of not guilty, the acquitted players are unable to return to work and are facing real consequences as a result of the allegations. Their names, faces, and entire backgrounds of who they are were presented to the public for scrutiny. The accuser however, was only ever referred to as E.M. to protect her identity during these proceedings. As such, she has not had to face the same level of public scrutiny and the same possibility of job loss as the players have had to. In addition, while the players have now been labelled as sexual assaulters, attackers, and rapists by many people on an international level, she has not had to face any potential repercussions for the possibility of a false accusation. 

Additionally, E.M. and Hockey Canada settled a civil lawsuit for an undisclosed amount where E.M. received a monetary amount to settle the dispute. This lends itself to a potential motive to fabricate, where E.M. received, likely, a substantial amount of money for her allegations. In contrast, the players were suspended from the NHL, and continue to be suspended, while being subjected to public scrutiny. It is clear that the NHL is not re-instating these players (as of yet, if at all), to avoid public backlash from sympathizers of the #MeToo movement. ESPN has reported that in June 2022, several high-profile sponsors, including Scotiabank, Canadian Tire, Tim Hortons, and Esso began distancing themselves from Hockey Canada, likely resulting in loss of funds by the NHL. ESPN also reports that the new CEO of Hockey Canada, Scott Smith who rose to the position on July 1, 2022, was “forced out” as CEO in 2022, followed by the entire board of directors resigning. These are all clear indications that no person or organization wants to even be associated with people accused of sexual assault, even before they have had their day in court. 

There have been many drastic consequences faced by many parties because of E.M.’s allegations. However, E.M. has been able to keep her identity hidden, while also receiving a monetary settlement in the process. It is clear that all other parties’ consequences were disproportionate compared to E.M’s, due in large part to the Court of Public Opinion.  

Conclusion

Sexual assault can be described as a gendered plague within society, and it is a drastically under-reported offence due to its nature. However, the consequences of casting allegations against someone for sexual assault can, and does result many times, in disproportionate consequences for the accused. In addition, if the accused is found not guilty in a Court of Law, they still have to face very real and substantial consequences imposed on them by the Court of Public Opinion. A person accused of sexual assault can have their entire life destroyed. With the rise of technology and the ease by which anyone can access information, an accused person now has to face real and practical consequences in their immediate social circle and professional life, but now any and all online users who choose to accost the person from behind a keyboard.