The jury in the high profile trial of five former Hockey Canada players accused of a 2018 sexual assault was dismissed by the judge Friday morning after a complaint was filed by multiple jurors regarding the behaviour of two defence lawyers.
Ontario Superior Court Justice Maria Carroccia concluded that she believed the trial’s fairness had been compromised and the jury had to be dismissed. On Thursday a juror had sent a note to Carroccia which indicated that some members of the jury felt two of the defence lawyers for one of the accused players were laughing at them as they came into court each day.
One juror wrote to Carroccia that Daniel Brown and Hillary Dudding, the lawyers for one of the accused players Alex Formenten, would turn to each and whisper and laugh as the jury entered court everyday. Brown and Dudding denied they did such a thing, and Carroccia said she had not noticed anything of the like.
In the absence of the Jury, Carroccia stated that she was concerned there was a possibility several members of the jury could harbour negative feelings towards members of the defence counsel, which could affect their ability to fairly decide the case.
"It is reasonable to conclude that in this situation, negative feelings about counsel and how they conduct themselves might impact the jury's perception of the accused,” Carroccia said on Friday. “This would obviously compromise the fairness of the trial.”
Instead of declaring a mistrial, which would force the proceedings back to square one and make the complainant, referred to as E.M. in court proceedings as her identity is protected under a court publication ban, to testify again. Carroccia decided the proceedings would continue as a judge-alone trial.
The complainant, E.M., had just finished testifying before the court for nine days, and a mistrial would have her testify again, along with police investigators and other players called to testify in the trial.
Going forward for the remainder of the trial Carroccia will continue to hear cases by the crown and the five defence teams and will decide whether the accused are guilty or not.
This is the second time the jury has been dismissed in this case. The first, which occurred in April during the first week of the trial, happened after Dudding, one of Formenton’s lawyers, had interacted with a juror while in line for lunch.
At the time, Carroccia found that she did not need to determine what words were spoken during the encounter between Dudding and the juror to conclude that a mistrial was necessary.
It’s enough that the jury has heard allegations that someone related to the trial spoke to a juror during the lunch break in violation of the court’s instructions, the judge said.
"My concern is that the circumstances of this case give rise to the possibility that one or more members of the jury may harbour negative feelings about defence counsel that could potentially impact on their ability to fairly decide the case," she told the court without the jury present.
The five accused former World Junior players, Dillon Dube, Alex Formenton, Cal Foote, Carter Hart, and Michael McLeod have all pleaded not guilty to sexually assaulting a then 20-year-old woman after a Hockey Canada gala in London, Ontario in June 2018. McLeod also faces an additional charge of being party to the offence of sexual assault.
--With files from The Canadian Press.
