Judge Dismisses Jury in Hockey Sexual Assault Trial

Content warning: This story includes allegations of sexual assault.

LONDON, Ont. — The jury in the trial of five former NHL players facing sexual assault charges was dismissed on Friday, transitioning the proceedings to a judge-only trial.

Superior Court Justice Maria Carroccia thanked the jury for their service before discharging them. Evidence presented since the trial began on April 28 will not need to be repeated, and witnesses who have already testified will not be called again.

The dismissal followed a note submitted to the judge by a juror on Thursday. The note indicated that some jury members felt lawyers representing Alex Formenton were mocking their appearance as they entered the courtroom, describing the behaviour as “unprofessional and unacceptable.”

Representatives for Formenton, Daniel Brown and Hilary Dudding, issued a statement via email to the media covering the trial, stating, “In short, a juror came to somehow believe that our courtroom demeanour was disrespectful of her… 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 statement added, “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, citing a “chilling” effect from the accusation and the risk of prejudice if further actions were misinterpreted by the jury.

Assistant Crown attorney Meaghan Cunningham countered that the Crown`s preference was for the jury to receive instructions to disregard the incident and judge the case solely on the evidence. Alternatively, she suggested an inquiry into the jury members to ensure impartiality, potentially allowing the trial to continue with a minimum of 10 jurors.

Selecting a new jury was another option, but this would likely require restarting the trial entirely. It would also necessitate the complainant testifying for a second time; her initial testimony earlier in the trial lasted nine days.

This marks the second time a jury has been dismissed in this case. Publication bans on most aspects of the previous two attempts at trial have been lifted, except for the identity of the complainant, who is still referred to as “E.M.”

Previously, a mistrial was declared on the first day of the trial, April 24, after a court officer informed the judge that Dudding had reportedly spoken to a juror at a nearby market during a lunch break. The juror shared the interaction with another juror, leading to a discussion among the jury about whether the actions were “inappropriate.” Rules prohibit lawyers and jurors from communicating during trials.

Dudding denied any misconduct, characterizing the interaction as an innocent misunderstanding. Justice Carroccia ruled it a mistrial and discharged the first jury. Jury selection for the second attempt began the following day from a pool of 200 citizens.

Following the dismissal of the second jury on Friday, testimony resumed with former Canadian World Juniors player Tyler Steenbergen.

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 provided this testimony during cross-examination by Anna Zhang, co-counsel for Michael McLeod with David Humphrey. Steenbergen appeared for the second day of his testimony via video call from Sylvan Lake, Alberta.

Steenbergen stated that the woman did not appear upset when she exited the hotel room washroom without clothing. He testified that she went to a bedsheet on the floor on her own. Shortly after, according to Steenbergen, she asked the men in the room for sex, using an expletive.

Steenbergen, who was sitting in a desk chair and talking to teammate Jake Bean at the time, said the woman`s comment caught his attention because “I had never heard that before.”

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

Michael McLeod faces two counts of sexual assault, including one related to aiding in the offense. Dillon Dube, Cal Foote, Alex Formenton, and Carter Hart are each charged with one count of sexual assault. All five have pleaded not guilty to their respective charges.

The Ontario Superior Court of Justice trial, anticipated to last eight weeks, is scheduled to continue in its fifth week on Tuesday with further testimony from Steenbergen.