Analyzing Justice Maria Carroccia’s Hockey Canada verdict

Open this photo in gallery:

A judge who found the complainant in the Hockey Canada trial to be untruthful in a ruling that acquitted five former junior players of sexual assault has come under strong criticism, after a judgment starkly at odds with a growing public emphasis on believing women.

But Ontario Superior Court Justice Maria Carroccia is also being praised as brave for calling it as she saw it in her 91-page written decision on Thursday, despite a potentially hostile public reception.

The gap between the criticism – which focuses not so much on the acquittals as on the judge’s finding that the complainant was not worthy of belief – and the praise reflects a sharp divide in the legal community itself, and the broader public, about sexual assault proceedings in general and the trial of the five players in particular.

“The blaming of a victim in the way it was done here is a setback, especially since it is in such a high profile case,” said Daphne Gilbert, a law professor at the University of Ottawa.

But Peter Sankoff, who teaches law at the University of Alberta, and is a criminal-defence lawyer, found much to admire in the judge’s direct approach.

“Most judges and lawyers walk on eggshells because they know they can get called out,” he said. “Justice Carroccia’s decision is very brave, and I say that without expressing an opinion of whether it is a ‘good’ or ‘bad’ decision. It’s brave because she is smart enough to know that the public and many advocates will be coming for her.”

The key legal issues at the heart of the Hockey Canada verdict

Five former members of the Canadian world junior team – Michael McLeod, Carter Hart, Alex Formenton, Dillon Dubé and Cal Foote – were each acquitted in a trial that unfolded under a unique national spotlight. The allegations shook the hockey world when they came to light several years ago, and have since raised questions about how the police, the courts and institutions such as Hockey Canada respond to claims of sexual misconduct.

The case unfolded at a time when several high-profile sexual assault cases, including in the United States, and the #MeToo movement has shifted how many talk about issues related to sexual assault, consent and how they should be handled.

Justice Carroccia’s ruling set off a heated debate about her assessment of the complainant in the case, known publicly as E.M., and the judge’s explanation for why she found the woman not credible.

Efrayim Moldofsky, a criminal-defence lawyer in Calgary, said judges today are under strong public pressure to render convictions in sexual-assault cases, whether justified or not. The Supreme Court has added to the pressure, he said. It decided more than 40 cases in a row over a five-year period against defendants, a streak that ended early last year.

“The #MeToo moment has added significant pressure on our justice system to convict those accused – rightly or otherwise – of sexual crimes and to ensure the process is as painless as possible for complainants,” Mr. Moldofsky said.

“Justice Carroccia has bravely resisted this public pressure and issued the appropriate verdict on the evidence.”

The events at the heart of the trial happened after a Hockey Canada gala in 2018. The complainant met Mr. McLeod at a bar, went back to his hotel room and engaged in consensual sex, according to her testimony. Mr. McLeod then texted his teammates inviting them to partake in sexual activity, and several arrived at the hotel room.

The complainant said she was afraid to show she was not consenting when the others arrived and engaged in sexual activity with her. The players said she was aggressively demanding sex. In her ruling, the judge did not believe E.M. was afraid but had instead given her express consent, in words and actions.

Much of the controversy related to the judgment relates to 30 paragraphs in which Justice Carroccia explained why she considered E.M. to have been not merely inaccurate in some of her testimony but simply not credible – that is, not telling the truth.

Among her reasons: That E.M. used the term “my truth,” rather than “the truth,” several times; that she did not answer directly when a defence lawyer asked her to explain a mistake she made about her weight; that she was at times vague when challenged in cross-examination; that she filled in gaps with assumptions; and that her testimony had inconsistencies.

To some observers, those findings were unnecessary, harmful and disrespectful. Simply finding that the prosecution had not proven a lack of consent beyond a reasonable doubt would have been enough, some critics say.

“This was not a complainant who was in any sense scamming the court,” said Constance Backhouse, a law professor at the University of Ottawa and author of a book on the history of sexual assault law.

“It is true that judges must weigh evidence carefully, and make a judgment call about whether the offence has been proven. But a wiser decision would have left it at that – simply making the point that the Crown did not prove the case beyond a reasonable doubt.”

She added: “This judgment is, in my view, disrespectful to the complainant. That was unnecessary. I fear it will only add fuel to the fire that the legal system is incapable of handling sexual assault crimes.”

Prof. Gilbert said Justice Carroccia made it clear she believed E.M. had lied in court.

“Given the grueling nine days on the stand, that is an incredibly damning indictment of E.M.,” she said.

But the judge’s reasons were faulty, in Prof. Gilbert’s view.

“It has been seven years [since the events in question]. To me E.M. was admitting, by using ‘my truth,’ that she has some fuzzy memories, and moreover, that she recognizes that the men had different ‘truths.’ I saw the use of ‘my’ as a concession on her part that she was doing the best she could to tell the story from her point of view. Rarely in human interaction is there such a thing as ‘THE TRUTH,’” she said in an e-mail.

As for Justice Carroccia’s finding that E.M.’s evasive response to a mistake she had made about her weight was “telling,” Prof. Gilbert called that “shaming a complainant because she underestimates her weight.”

Prof. Gilbert said she does not believe the complainant could be expected to know that an 18-pound difference would impact her level of intoxication, adding that it probably wouldn’t, anyway.

“I thought it petty argument at the time, designed to embarrass her,” she said. “That the judge actually invokes it really surprises me.”

She said the extent to which the judge relied on inconsistencies in E.M.’s testimony to make the case she lacked credibility reflects two problems with the system.

First, understandably, an accused does not need to testify in their own defence. In the trial of the hockey players, just one of the five accused took the stand.

But “this means that only the evidence of a complainant is put under the microscope,” Prof. Gilbert said.

A second problem: E.M. was asked to give multiple sworn statements over a period of years.

“She was expected in court to be exactly precise in her testimony to those statements. But they would only be as good as the person taking them – did they ask the right questions in the right way and in the same way as it is being put to the complainant at trial? And did she remember things after the statements that aren’t in them but she is now prepared to discuss?”

Lisa Helps, a criminal lawyer in Vancouver who has represented sexual-assault defendants at the Supreme Court of Canada, and has also served as an ad hoc Crown prosecutor in B.C., said the judge was just doing her job.

“What is perceived as harsh is actually the justice saying, ‘This is what I have to say, to say why I decided the way that I did.’”

There have been questions as to the message the verdict sends to other potential complainants. Ms. Helps said the Hockey Canada case was challenging because of the seven years that had passed.

“What I think it should say to potential complainants is every case is decided on its own merits,” said Ms. Helps.

The time since 2018, and all the other events, including a civil suit, made it a more difficult case for the prosecution.

“It’s not something that’s going to be helpful to a complainant,” said Ms. Helps, “because everybody’s memory fades with time, everybody’s description of events can change, everyone puts things into context in their own head.”

It’s a discouraging verdict for those who have experienced sexual assault or might consider going to police, said Anna Matas, a partner at St. Lawrence Barristers in Toronto who has worked with survivors of sexual violence.

“It’s a very difficult outcome, for the complainant and for many other people who work in sexual violence,” said Ms. Matas.

The judge would have written her decision knowing that it would be read not only by the parties – in this case, the Crown and the defendants – but also the complainant and the public, said Toronto criminal lawyer Chris Rudnicki. The Court of Appeal was likely another audience.

“In a case as contested and high profile as this, Justice Carroccia must have also been thinking of potential appellate review when drafting her reasons,” he said.

To him, the judge also appeared to write with the media in mind. For instance, she quoted from a 2017 ruling from her Superior Court colleague, Justice Anne Molloy, who said that the phrase “believe the victim” has no place in a criminal trial.

Mr. Rudnicki said he did not believe, given the way the evidence played out, that a different judge or a jury would have come to a different conclusion for most of the players.

“There were just too many problems with this case,” including the complainant’s inconsistent statements, he said.

“That being said, I think it is unlikely that another judge would have gone so far as to find actual consent, as this trial judge did.”

Hilla Kerner, a spokeswoman for the Vancouver Rape Relief & Women’s Shelter, said the acquittals of the hockey players reflect the broader issue in the system that convictions remain unlikely, even as reporting rates rise.

“No doubt that #WeBelieveWomen and the #MeToo movements have emboldened women victims of sexual assault to demand justice for themselves and accountability of their attackers. But that hasn’t been matched with a growing number of perpetrators being held accountable.”