As five former Canadian world junior hockey players await a ruling in their sexual assault trial, legal experts say videos shown in court of the complainant saying she was OK with what had happened highlight a broader misunderstanding of consent and sexual assault law in Canada.
Two cellphone videos in which the woman says she’s “OK with this” and that “it was all consensual” were presented as evidence during the trial of Michael McLeod, Carter Hart, Alex Formenton, Dillon Dube, and Callan Foote.
All five men have pleaded not guilty to sexual assault after an encounter in a London, Ont., hotel room in the early morning hours of June 19, 2018. McLeod has also pleaded not guilty to an additional charge of being a party to the offence of sexual assault.
Ontario Superior Court Justice Maria Carroccia is expected to deliver her ruling on Thursday in the case that saw consent emerge as a central issue.
Prosecutors have argued the complainant did not voluntarily agree to the sexual acts that took place, nor did the players take reasonable steps to confirm her consent. The Crown has dismissed the videos taken of the woman that night as “token lip service box checking,” arguing she felt she had no choice but to go along when a group of men she didn’t know started asking her to do things inside the hotel room.
Defence lawyers, meanwhile, repeatedly challenged the complainant’s credibility and reliability as a witness, arguing she was an active participant in the sexual activity and made up the allegations because she didn’t want to take responsibility for her choices that night.
Video statements such as the short clips shown in this trial aren’t necessarily evidence of consent, said University of Ottawa law professor Daphne Gilbert.
“Legally speaking, they have very little relevance because consent has to be ongoing and contemporaneous with the sexual activity and you have to be consenting to every single thing that is happening to you,” said Gilbert, who researches sexual violence and abuse in Canadian sports.
“There’s no such thing as advance consent. And there’s no thing as after-the-fact consent, either. So just because you say, ‘Yeah, it was all consensual’ doesn’t mean that makes it so.”
Lisa Dufraimont, a law professor at York University, said such videos could also be seen as hearsay because they don’t contain statements made under oath in court.
“If the complainant got on the stand at the trial and testified that they consented at the time, that would be evidence that they consented at the time,” said Dufraimont, whose research focuses on evidence issues in sexual assault cases.
But she said the videos could be used for other legal arguments, including those that may rely on a description of how a defendant or complainant was acting at the time.
“It may be that if the video is taken close in time to the alleged sexual assault, that the video shows something about the person’s level of intoxication or their emotional state, which may or may not be consistent with what they later reported their emotional state was at the time,” said Dufraimont.
During the trial, the Crown argued that the videos shown in court weren’t proof that the complainant voluntarily agreed to what had taken place.
“The recording of that video is not getting her consent to anything. Everything’s already happened,” prosecutor Meaghan Cunningham said about the video in which the woman said it was “all consensual,” adding that consent must be communicated for each specific act at the time it takes place.
Only one of the accused, Hart, took the stand in his own defence, and court heard or watched interviews three of the others — McLeod, Formenton and Dube — gave police in 2018. People accused of crimes are not required to testify, nor is the defence required to call any evidence, as it is up to the Crown to prove guilt beyond a reasonable doubt.
In McLeod’s 2018 interview with police, he told a detective that he recorded one of the videos because he was “just kind of worried something like this might happen.”
On the stand, Hart testified that consent videos aren’t unusual for professional athletes.
Gilbert, the University of Ottawa law professor, said Canada in general still has work to do in educating young people about consent, especially in sports. She’s involved in efforts to teach youth about consent through school programming, but said professional hockey in particular is behind on enacting policies to address the issue.
Consent should be “enthusiastic, affirmative, ongoing, coherent” — yes means yes, said Gilbert.
“I think people don’t understand that that’s actually what the law requires. And so if you know that, if you think about that as the way that we should approach consent, then I think it’s easier to understand why those videos don’t mean much.”
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