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More Canada Hockey Problems.
- Thread starter Yoda
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It’s been brewing for awhile apparently. Have a friend who’s been talking about it for last couple years. Always made comments when one of the possible accused gets drafted at our hockey draft.
This will be really interesting from a legal perspective. London police cleared them, and then Hockey Canada tries to compel them to cooperate with an investigation. Can't imagine anything out of that is voluntary / admissible, but that doesn't mean the Crown won't try to use it.
The other thing that's interesting is that there is apparently video from before and after the incident, as well as text messages between the complainant and one of the accused individuals. Ever since the Ghomeshi case, the federal government has been drafting legislation to stack the deck against accused individuals trying to use this type of evidence in their defense. In the case of the text messages, at best the accused will have to turn them over to the Crown in advance of the trial (or perhaps during), which gives the complainant the opportunity to consider how to best explain away what might otherwise be compellingly exculpatory evidence.
Reverse disclosure runs contrary to core principles of fairness in a criminal trial, but for now this is the environment in which these players will have to mount their defenses...
The other thing that's interesting is that there is apparently video from before and after the incident, as well as text messages between the complainant and one of the accused individuals. Ever since the Ghomeshi case, the federal government has been drafting legislation to stack the deck against accused individuals trying to use this type of evidence in their defense. In the case of the text messages, at best the accused will have to turn them over to the Crown in advance of the trial (or perhaps during), which gives the complainant the opportunity to consider how to best explain away what might otherwise be compellingly exculpatory evidence.
Reverse disclosure runs contrary to core principles of fairness in a criminal trial, but for now this is the environment in which these players will have to mount their defenses...
Carter Hart, Dillon Dube, Michael McLeod and Cal Foote all just took "indefinite leave of absences"... an inference could be drawn... but since there are "Apparently Five"...
5th one no longer in the NHL
Canucks4Ever
Well-Known Member
Alex Formenton on leave from Swiss team to "return to Canada"...
CBC Fifth Estate has previously done a couple of pieces on this and shared some of the text messages that have been previously disclosed publicly.
Feels like this case will be appointment viewing in Canada.
Interesting from a legal perspective. Although with Ghomeshi the real clincher was there were multiple complainants, as opposed to just one in this proceeding, and evidence that the complainants had all be talking and sharing details about the case during the investigation and leading up to the trial.
Another comparable would be the Virtananen case here in Vancouver where he was acquitted.
Gotta wonder in this one if one or more of the five are ready to spill their guts to pin it on the others in the hope of saving their own career(s).
the media is reporting on all sorts of court applications and evidence that usually would remain sealed until any criminal proceedings are concluded... add it to a long list of issues you can expect well-funded defense counsel to raise...
Ghomeshi also had at least one of the complainants saying in direct evidence that she was terrified of him and didnt want to see him again... except that he had kept messages from her wherein she effectively said she couldn't wait for him to be even rougher next time....
The Ghomeshi complainants are lucky they didn't get charged with perjury... like it's beyond any doubt whatsoever that they committed that crime.
the problem with forcing the accused to cough up those messages in advance of cross examination is that it gives the complainant an opportunity to concoct an explanation that then itself has to be impugned... and, if that evidence is coughed up in advance of the trial, the complainant is put on notice and now doesn't say that as part of her direct evidence.
bottom line, the amendments forcing "reverse disclosure" are clearly intended to result in more convictions, and impair the right to full answer and defense. that our top Court hasn't struck them down as an obvious affront to natural justice is, to me, shocking...
The Ghomeshi complainants are lucky they didn't get charged with perjury... like it's beyond any doubt whatsoever that they committed that crime.
the problem with forcing the accused to cough up those messages in advance of cross examination is that it gives the complainant an opportunity to concoct an explanation that then itself has to be impugned... and, if that evidence is coughed up in advance of the trial, the complainant is put on notice and now doesn't say that as part of her direct evidence.
bottom line, the amendments forcing "reverse disclosure" are clearly intended to result in more convictions, and impair the right to full answer and defense. that our top Court hasn't struck them down as an obvious affront to natural justice is, to me, shocking...
I think the difference between this one and the Ghomeshi case is that the videos from the 2018 incident are apparently well-known to the Crown, police, and various parties involved. I suspect that a lot of work has gone into backfilling the problems with that evidence. The delay to early February for further comment from the police is interesting. Each province is different. In BC the police recommend charges and the Crown either approves them or not. I believe it's similar in Ontario.
I wonder if there still work going on, like a further or amended Report to Crown Counsel. The request to the accused persons to surrender themselves suggests that work has been done. It's been a long time since I did this work on an ad hoc basis so I am not clear on the current process. The charge approval process is similar across Canada. Here's the current excerpt from Ontario's current Crown Counsel manual: https://www.ontario.ca/document/crown-prosecution-manual/d-3-charge-screening
The upshot is that there is a lot to consider when proceeding with a prosecution. Things must have changed since the first decision not to proceed. While it's fundamentally important to believe victims, I think it's also important to "trust but verify." That verification is very difficult in sexual assault cases. If the Crown is proceeding, it's because they feel they can meet the "substantial likelihood of conviction" charge standard. You need both that and it to be deemed "in the public interest." The last one might be easier to satisfy in this case.
I agree that the reverse disclosure revisions have the potential to be problematic. They will be challenged, eventually. Our system has evolved on the basic principle that it is better to let 99% of guilty people free than convict innocent people. Recent revisions risk that when we seek to secure more convictions and address other societal concerns. Not easy.
As for Ghomeshi, one of my old law school classmates was the prosecutor on that one. He was handed a crap sandwich and the assessment, internally, was that he did the best he could with witnesses and evidence that became unreliable. He was eventually appointed to a judicial position so the broader legal community agreed that he performed well.
These cases are really, really difficult.
We assume that the 5 are all getting charged. No one really knows. Perhaps there are one or more cooperating witnesses. There were originally rumours of 8 involved. Have some of them cooperated?
Meanwhile, Halifax PD are working on the 2003 World Junior case...
I wonder if there still work going on, like a further or amended Report to Crown Counsel. The request to the accused persons to surrender themselves suggests that work has been done. It's been a long time since I did this work on an ad hoc basis so I am not clear on the current process. The charge approval process is similar across Canada. Here's the current excerpt from Ontario's current Crown Counsel manual: https://www.ontario.ca/document/crown-prosecution-manual/d-3-charge-screening
The upshot is that there is a lot to consider when proceeding with a prosecution. Things must have changed since the first decision not to proceed. While it's fundamentally important to believe victims, I think it's also important to "trust but verify." That verification is very difficult in sexual assault cases. If the Crown is proceeding, it's because they feel they can meet the "substantial likelihood of conviction" charge standard. You need both that and it to be deemed "in the public interest." The last one might be easier to satisfy in this case.
I agree that the reverse disclosure revisions have the potential to be problematic. They will be challenged, eventually. Our system has evolved on the basic principle that it is better to let 99% of guilty people free than convict innocent people. Recent revisions risk that when we seek to secure more convictions and address other societal concerns. Not easy.
As for Ghomeshi, one of my old law school classmates was the prosecutor on that one. He was handed a crap sandwich and the assessment, internally, was that he did the best he could with witnesses and evidence that became unreliable. He was eventually appointed to a judicial position so the broader legal community agreed that he performed well.
These cases are really, really difficult.
We assume that the 5 are all getting charged. No one really knows. Perhaps there are one or more cooperating witnesses. There were originally rumours of 8 involved. Have some of them cooperated?
Meanwhile, Halifax PD are working on the 2003 World Junior case...
Canucks4Ever
Well-Known Member
I mean what has changed is society's overall view towards this type of behavior.
With this case, my understanding is that the complainant initially went to police and filed a complaint. Some investigative calls were made and, as a result, it appears the main player involved went back to the complainant (via text) and told her she needed to withdraw the complaint because allegations of this nature were going to be incredibly damaging to the careers of the players.
Obviously that's a very Coles Notes version of those exchanges, but essentially she is saying she was assaulted and then pressured to withdraw.
For London Police in 2018 that was case closed. The #MeToo movement was only just starting to reach full vigor at that time.
The suggestion is that all sorts of these types of "scenarios" were quietly handled for years by Hockey Canada with quiet phone calls and back room handshakes...
I agree with a lot of what you say. Yes, how society has treated these situations has evolved. What I meant, specifically, from the Crown's perspective, is that something has recently changed to potentially meet their charge approval standard. In 2018, the complainant, according to some media reports, withdrew her complaint (under pressure). Faced with a now not cooperating complainant, that made the police's and Crown's job very difficult to proceed.
What may have changed is that the complainant now feels supported and is ready to withstand the scrutiny of a criminal proceeding. It may also be that they have developed corroborating evidence that they didn't have before. The "what has changed" piece will be fascinating to watch.
It never fails to amaze and horrify me the depths of depravity humans sink. Do parents not have discussions with their boys about respecting girls? What possesses anyone in a situation like these privileged players to think this was remotely a good/fun idea? That goes for today, 2018, 2003, or +35 years ago when I was the age of those players. To think that these guys have specific terms (which I won't repeat) that describe this activity (I have heard different ones for 2003 and one for 2018) is beyond belief.
Canucks4Ever
Well-Known Member
My point was I don't think there was anything to take to Crown in 2018. The complaint was withdrawn. Back then that was enough for police to tie it off.
The complainant went public with her story - presumably from an altruistic basis and because she now felt supported and empowered.
I don't believe she went back to police and specifically asked for the case to be reopened. I think as the media circus ballooned and government review of CSA etc. loomed, it seems likely that London Police went "Maybe we should have another look at this?".
Obviously they would need a cooperating complainant to go forward in earnest. My point is, though, I don't believe anything has "changed" other than now there has been a fulsome investigation and it has reached the charge approval stage. Whereas in 2018 it's not like police felt they did not have enough to go to Crown with, it was simply that after a few phone calls and a withdrawal it was case closed.
Canucks4Ever
Well-Known Member
On this last point - this is where I do have some feelings (I think "sympathy" or "empathy" might be too strong a term but something of that ilk) for the players involved.
If they did what they are alleged to have done, it was not ok and they should face the consequences of their actions fully and completely.
My thoughts, though, turn to the culture that ostensibly set these kids up for failure. These were 19 and 20 year old kids that had been living most of the year with billet families is small Canadian towns from the time they were 15 years old.
They were the gods of those small towns, and got all sorts of attention from everyone - agents, fans, girls, sales reps, special treatment at school, etc.
So I very much doubt there was time for solid parenting advice on how to treat women and just generally be a good person. I would assume your "family" became the team you were on there have been no shortage of stories about the internal bullying of guys in that environment from hazing to abusive coaches, etc.
Add to that the fact that is appears Hockey Canada may have become rather well versed in sweeping these types of "situations" under the rug and one can start to see how maybe a room full of young guys might not be able to fully gasp the impact of their behaviour.
Again - In no way does it excuse the actions and it should not be a defense to them (though as defense counsel I might try it...).
Just saying I would be willing to bet the culture has been long overdue for consequences and changes and it seems that these 5 guys are going to bear the brunt of it while I am sure there are plenty of others thinking quietly to themselves there, but for the grace of God, go I...
Here’s a comprehensive summary of the history of the case with links to earlier detailed explanations. Terrible case.
apple.news
An alleged group sexual assault involving hockey players may be going to court. Here's what might happen next — CBC News
News that five players from Canada's 2018 World Junior team are expected to face sexual assault charges is raising questions about next steps in the high-profile case.
what's changed is that Robyn Doolittle came out with a complete hit-piece on the police in this country, everyone shite their pants, and then Ghomeshi got off and Sophie threw a tantrum to Justin and said "don't ever let this happen to another woman".
and no, I'm not going to share my sources on that, but I have them and I trust them as reliable.
charge approval is a bit different in Ontario - the police formally charge, and then the file goes to the Crown who decides how it does or doesn't move forward. It's a bit of a dodge for defense lawyers - the police often shamelessly overcharge - both quantitatively and qualitatively - and then my colleagues there get to come along and convince the Crown to either mostly or completely back off. All for a tidy fee, of course. Here, we sometimes have an ability to talk to the Crown and convince them not to lay charges in the first place - there is real benefit to that for people with no criminal history at all - but it's rare.
I thought the reverse disclosure provisions had been challenged, unsuccessfully. I could be wrong. I do know that 38 sex assault case appeals to the SCC in a row have gone the way of the Crown. I also know that there is precious little to no practical criminal law experience on the current Court - including the new Justice who was appointed merely for being Indigenous who, the Ontario Court of Appeal pointedly noted in overturning a decision of hers when she was in a trial court, apparently doesn't understand the difference establishing a lack of consent (Crown's obligation) and raising a reasonable doubt about consent (accused's "evidentiary burden").
The Ghomeshi Crown may well have deserved his appointment, but I wouldn't take the appointment as a comment on the topic. Crown handing high profile cases for the government often get appointed shortly after they bring such a case to a conclusion that doesnt end up in abject embarrassment for said government. The Meng (Huawei) prosecutor got that treatment here in BC, and there are other examples I know of anecdotally that I of course won't share on a public forum.
I'm not involved in the case and know nothing more than what I've read online. Assuming all of that to be accurate, two things jump out. First, there's a lot of behaviour from the guys that could well be interpreted as "consciousness of guilt". On the other hand, the complainant seems to be saying that she was kept in the room against her will... but also that she was free to go at any time. I mean both of those things can't be true, but that kind of recollection can happen when you're doing your best but your memory isn't that good. Or, as defense counsel will no doubt suggest, when you're lying through your teeth.
My biggest concern here is that someone who was paid 3 million dollars to go away has been backfilling since 2018 to have her cake and eat it too. I'm not saying that's the case - it probably isn't. But in terms of a nightmare scenario for fairness and justice - that would be it...
and no, I'm not going to share my sources on that, but I have them and I trust them as reliable.
charge approval is a bit different in Ontario - the police formally charge, and then the file goes to the Crown who decides how it does or doesn't move forward. It's a bit of a dodge for defense lawyers - the police often shamelessly overcharge - both quantitatively and qualitatively - and then my colleagues there get to come along and convince the Crown to either mostly or completely back off. All for a tidy fee, of course. Here, we sometimes have an ability to talk to the Crown and convince them not to lay charges in the first place - there is real benefit to that for people with no criminal history at all - but it's rare.
I thought the reverse disclosure provisions had been challenged, unsuccessfully. I could be wrong. I do know that 38 sex assault case appeals to the SCC in a row have gone the way of the Crown. I also know that there is precious little to no practical criminal law experience on the current Court - including the new Justice who was appointed merely for being Indigenous who, the Ontario Court of Appeal pointedly noted in overturning a decision of hers when she was in a trial court, apparently doesn't understand the difference establishing a lack of consent (Crown's obligation) and raising a reasonable doubt about consent (accused's "evidentiary burden").
The Ghomeshi Crown may well have deserved his appointment, but I wouldn't take the appointment as a comment on the topic. Crown handing high profile cases for the government often get appointed shortly after they bring such a case to a conclusion that doesnt end up in abject embarrassment for said government. The Meng (Huawei) prosecutor got that treatment here in BC, and there are other examples I know of anecdotally that I of course won't share on a public forum.
I'm not involved in the case and know nothing more than what I've read online. Assuming all of that to be accurate, two things jump out. First, there's a lot of behaviour from the guys that could well be interpreted as "consciousness of guilt". On the other hand, the complainant seems to be saying that she was kept in the room against her will... but also that she was free to go at any time. I mean both of those things can't be true, but that kind of recollection can happen when you're doing your best but your memory isn't that good. Or, as defense counsel will no doubt suggest, when you're lying through your teeth.
My biggest concern here is that someone who was paid 3 million dollars to go away has been backfilling since 2018 to have her cake and eat it too. I'm not saying that's the case - it probably isn't. But in terms of a nightmare scenario for fairness and justice - that would be it...
- Thread starter
- #18
Maybe it’s just me but I feel like if you have to take out your phone, and “make” them record something in order for you to feel like you have covered your ass should word get out about the incident, you, as a potential professional athlete, should know it’s probably a bad idea in the first place.
100% agree. That was my take. Say you are ok with it, tell the camera everything is ok. At what point does Vince McMahon enter the room and shite on her head.
Hockey players are idiots, always have been. I’ve been around athletes my whole life and I’m not blown away by much. But their locker room culture is bizarre. I’ve literally heard all but identical stories from many a hockey rookie party.
Hockey players are idiots, always have been. I’ve been around athletes my whole life and I’m not blown away by much. But their locker room culture is bizarre. I’ve literally heard all but identical stories from many a hockey rookie party.
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