Judge dismisses jury in hockey sexual assault trial

Content warning: This story includes allegations of sexual assault.

LONDON, Ont. — The jury was dismissed Friday in the trial of five former NHLers accused of sexual assault, which will now be a judge-only trial.

Superior Court Justice Maria Carroccia thanked the jury for their service before discharging them. The jury first heard evidence on April 28. Evidence to this point will not need to be reheard, nor will witnesses who previously testified have to testify again.

Jurors were dismissed after one submitted a note to the judge on Thursday saying some members felt lawyers for Alex Formenton were making fun of their appearance when they were walking into the courtroom. The note called the behaviour "unprofessional and unacceptable."

“In short, a juror came to somehow believe that our courtroom demeanour was disrespectful of her,” Formenton’s representatives, Daniel Brown and Hilary Dudding, wrote in a statement emailed to media covering the trial. ”This was an unfortunate misinterpretation. No defence counsel would risk alienating a juror, and nothing could be further from the truth in this instance.

“The very idea of counsel making light of a juror is illogical and runs directly counter to our purpose and function.”

All five defence teams requested a mistrial because of the “chilling” effect this accusation had on them, with a danger of it leading to a “prejudice” by the jurors if further actions were misinterpreted by the jury.

Assistant Crown attorney Meaghan Cunningham countered that the Crown preferred the jury receive instructions to set aside the incident and judge the case before them based on evidence alone. Alternatively, she suggested an inquiry into the members of the jury to vet those who might not have been able to guarantee their impartiality in the trial. In that case, the trial could have continued with as few as 10 jurors.

Selecting a new jury was another option, but to do so likely would’ve meant starting the trial over again. It also would’ve required the complainant to testify again; her testimony earlier in the trial lasted nine days.

This is the second time a jury was been dismissed in this case. The publication ban on most aspects of the previous two trials has been lifted, save the identity of the complainant, who is still to be referred to as “E.M.”

Previously, a mistrial was declared after the first day of the trial, on April 24, when the judge was notified by a court officer who said a juror had been spoken to by Dudding at the nearby Covent Garden Market during a lunch break. The juror told another juror of the interaction and a discussion reportedly broke out among the jurors as to whether the actions were “inappropriate” or not. Lawyers and jurors are not to talk during trials.

Dudding denied any wrongdoing, saying the interaction was an innocent misunderstanding. Carroccia ruled a mistrial, discharging the first jury. Jury selection recommenced the next day from two pools totalling 200 citizens.

After the second jury was dismissed on Friday, testimony by former Canadian world juniors player Tyler Steenbergen resumed. 

Steenbergen, 27, told the court that the woman in Room 209 at the Delta Armouries hotel was asking the men in the room to have sex with her.

Steenbergen was responding to cross-examination by Anna Zhang, who is co-counsel with David Humphrey for Michael McLeod. Steenbergen appeared for the second day via video call from Sylvan Lake, Alta.

Steenbergen said the woman didn’t appear upset when she came out of the washroom of the hotel room without clothing. He said she went over to a bedsheet on the floor on her own. Shortly after, Steenbergen said she asked the men in the room for sex, using an expletive.

Steenbergen was sitting in a desk chair in the room and having a conversation with world juniors teammate Jake Bean, but that comment by the woman caught his attention because “I had never heard that before.”

Steenbergen, who is now out of hockey and working in the family business building starter homes, later told Riaz Sayani, co-counsel with Megan Savard for Carter Hart, that a slap to the woman’s buttocks by one of the men in the room was “playful” and not abusive. Steenbergen agreed with Sayani’s suggestion that the slap was not intended to hurt the woman.

McLeod has been charged with two counts of sexual assault, including one relating to aiding in the offence. Dillon Dube, Cal Foote, Formenton and Hart have each been charged with one count of sexual assault. All have pleaded not guilty to their charges.

The Ontario Superior Court of Justice trial, which is expected to take eight weeks, is scheduled to continue in its fifth week on Tuesday with further testimony by Steenbergen.