Three of the five hockey players accused of sexually assaulting a woman in a London, Ont., hotel room in 2018 spoke about the events of that night with an investigator hired by Hockey Canada, but those statements are not part of their criminal trial.
Prosecutors wanted to use the interviews to cross-examine Michael McLeod, Dillon Dube and Alex Formenton if they chose to testify, but an Ontario judge last year excluded the statements from trial because they were obtained by the investigator, Danielle Robitaille, under threat of penalties that could affect their hockey careers.
The details can now be reported as the trial moves ahead with a judge alone, following the jury's dismissal on Friday morning.
"These statements by these defendants … in my view, were achieved through such significant unfairness in a process that was an absolute no-win for them – whether you call it compelled or coerced, they effectively were left with a choice, I suppose, but really no choice at all," Ontario Superior Court Justice Bruce Thomas said at a pretrial hearing on the issue last November.
"The fashion in which Ms. Robitaille chose to obtain these statements … leads me to the conclusion that it would render the trial process unfair if they were admitted."
Thomas, who oversaw the early stages of the case but could not preside over the trial due to a scheduling conflict, acknowledged his ruling could leave the Crown "potentially in a difficult position" if the three took the stand.
But the judge stressed that could not override the fundamental issue of trial fairness.
McLeod, Dube, Formenton and two other players, Carter Hart and Callan Foote, have pleaded not guilty to sexual assault in relation to an encounter that took place in the early hours of June 19, 2018. McLeod has also pleaded not guilty to being a party to the offence of sexual assault.
The Crown alleges McLeod, Hart and Dube obtained oral sex from the woman without her consent, and Dube slapped her buttocks while she was engaged in a sexual act with someone else.
Foote allegedly did the splits over her face and "grazed" his genitals on it without her consent. Formenton is alleged to have had vaginal sex with the complainant without her consent inside the bathroom.
Crown prosecutors argued during pretrial motions that the players were given a choice to participate in the Hockey Canada investigation – one they may not have liked, but that was still a choice.
Excluding the statements, which were contained in handwritten notes, would deprive the Crown and jurors of a "significant tool" to assess the credibility and reliability of the three players, they further argued.
In the end, Thomas accepted the "vast majority" of the defence's arguments for excluding the statements on trial fairness grounds, including that the interviews were compelled, he said in a written ruling.
In a jury trial, the evidence, arguments and decisions that emerge in pretrial hearings can’t be publicly disclosed until jurors are sequestered.
That restriction was lifted Friday after the judge overseeing the trial, Ontario Superior Court Justice Maria Carroccia, ruled to dismiss the jury and continue the trial by judge alone, citing concerns that jurors had developed a negative view of the defence that could compromise trial fairness.
The issue arose Thursday after one of the jurors submitted a note indicating that several jury members felt they were being judged and laughed at by lawyers representing one of the accused as they came into the courtroom every day. The lawyers, Daniel Brown and Hilary Dudding, denied doing anything of the like and Carroccia said she had not seen any behaviour that would cause her concern, but the judge found that the jury's negative impression could not be remedied.
The trial, which began in late April, is still hearing evidence from the prosecution. The accused could choose to testify as part of the defence's case but are not required to do so.
The five accused were members of Canada’s 2018 world junior hockey team and were in London in June 2018 for a Hockey Canada celebration of their gold-medal win at that year’s tournament.
The events that took place after the gala are at the heart of the trial.
The complainant, who cannot be identified due to a publication ban, testified she met McLeod and some of his friends at a downtown bar and pieced together that they were hockey players. She was there drinking with coworkers and had at least eight shots, a beer and a vodka soda at the bar, on top of two coolers at home, she said.
She left with McLeod and they had sex in his hotel room, an encounter that is not part of the trial. Afterward, she saw McLeod on his phone, and was surprised to see several men come into the room, she said.
She was naked, drunk and felt she had to go along with what the men wanted her to do, she testified. While no one physically forced her, and she didn't say no, the woman said she didn't feel she had a choice.
Lawyers for the players, however, have presented a drastically different narrative of the night, suggesting the woman actively participated in or initiated sexual activity. She asked McLeod to invite his friends over because she wanted a "wild night" and then taunted the men to have sex with her, the defence suggested.
The woman said she had no memory of saying those things, and the phrases didn't sound like something she would say. It's possible she asked the men to have sex with her due to her level of intoxication, she said, but the men should have been able to see she wasn't in her right mind.
Police launched a criminal investigation into the allegations in the days that followed the encounter but closed it without charges in 2019.
Hockey Canada, meanwhile, ordered a parallel investigation to determine whether any players had breached its code of conduct, but discontinued it in 2020 after prolonged efforts to get the complainant to participate, court heard in November.
The case first came to the public’s attention in the spring of 2022 when TSN broke the news that Hockey Canada had settled a lawsuit filed by the complainant against the organization, the Canadian Hockey League and eight unnamed players.
Until that moment, none of the eight had been aware of the lawsuit or that it had been settled on their behalf, court heard.
News of the settlement set off a wave of outrage and sparked national discussions on how sports organizations handle allegations of sexual misconduct, with Hockey Canada at the centre.
That July, the House of Commons heritage committee held a hearing on the matter, calling on Hockey Canada representatives to testify. The committee also brought in Robitaille, who had reopened her investigation that same month, as had London police.
Also that month, Hockey Canada issued an open letter apologizing for not doing enough to address the "actions of some members" of the national junior team, adding that what happened in London was "completely unacceptable."
The letter noted that all players would be required to participate in its investigation – or face penalties.
The organization had changed its code of conduct, allowing it to bypass established safeguards that guaranteed players the right to a hearing before being disciplined, Thomas wrote in his ruling on the issue.
"As part of the refreshed Hockey Canada investigation, and unlike the 2018 version, this time the players were threatened with an automatic lifetime ban from Hockey Canada and public disclosure of their identities if they declined to participate in an interview," the judge wrote.
The interviews were to be confidential, but Hockey Canada made it clear that would no longer be the case if the organization was served with a court order to turn over its materials, he wrote.
Getting a hold of Hockey Canada's files was, in fact, one of the "fresh investigative avenues" police were considering, the judge wrote.
Even before Robitaille interviewed any of the players, Hockey Canada's lawyer offered to hand over the statements and the rest of her investigative file to police, without the need for a court order, court heard.
Police turned down the offer, but let both Robitaille and Hockey Canada know that they had reasonable grounds to believe several players had sexually assaulted the complainant and were seeking a production order for the file.
Robitaille did not disclose that to the players before interviewing them, court heard.
Counsel for the players repeatedly objected to the interviews, calling them coerced, court heard.
"Ms. Robitaille refused to stand down as she had done in 2018 and rather chose to remind the players of the consequences of a lifetime ban for non-co-operation," Thomas wrote.
"The evidence disclosed that such a sanction would prohibit these applicants from ever participating in the World Championships, the Olympics or of ever coaching hockey, even at a minor level, even if it was coaching their own child’s team."
Robitaille did four interviews with three players in October – one each with McLeod and Dube, and two with Formenton.
When the production order landed later that month, Robitaille cancelled her scheduled interviews with Hart and Foote, court heard.
Police announced the criminal charges in early 2024, saying they were able to proceed after collecting new evidence. They declined to provide details, citing the court case.
This report by The Canadian Press was first published May 16, 2025.
Paola Loriggio, The Canadian Press
