The next stage in the case against five members of Canada's 2018 world junior team accused of sexual assault will take place Wednesday in London, Ont.
In late January, Alex Formenton, Carter Hart, Dillon Dube, Michael McLeod, and Cal Foote were charged with sexual assault in connection with an alleged 2018 incident.
At the end of February, lawyers for the five players confirmed that their clients had jointly agreed to a trial by jury. A preliminary judicial hearing will be held in London on Wednesday, but the trial will be held behind closed doors, with no access to the public or media.
The Athletic This week, we reached out to four Ontario-based lawyers to answer important questions about what typically happens during judicial pretrial conferences.
Nicholas Last is an Ottawa-based criminal defense attorney who represents clients in sexual assault cases. Rakin Afolabi is a criminal defense attorney in London, Ontario who specializes in sexual assault and domestic assault cases.
Sam Goldstein is a Toronto-based criminal defense lawyer who has tried several sexual assault cases in court. He began his career as a prosecutor and has worked in all levels of the court system in Ontario. Sean Robichaud is also a Toronto-based criminal defense lawyer with experience litigating sexual assault cases in Ontario.
Rust, Afolabi, Goldstein and Robichaud are aware of the details of the case that have been made public. No one is involved in this incident in any way. all four spoke The Athletic Regarding this matter in general terms.
What is the purpose of a pre-trial interview?
In Ontario, pretrial conferences typically serve two purposes. The first is to bring all parties together to see if there is a way to resolve the issue without using the court system. In most cases, the judge will try to see if there is common ground for a settlement before starting a trial.
But legal experts say: The Athletic Cases involving sexual assault have a very low chance of being resolved.
“In a case like this, it's very unlikely that a preliminary hearing will lead to a resolution,” Robichaud said. “These are all-or-nothing type of cases.”
“These types of judicial trials are not necessarily about resolution,” Goldstein said. “Rather, it's important to determine how much trial time is required.”
So Wednesday's session is likely to move on to the second purpose of the pretrial hearing: determining how much court time is needed to hear the case in its entirety.
During pre-trial meetings, the judge tries to understand the arguments of both sides. The Crown will reveal the list of witnesses it plans to call, but the defense can submit a rough number of witnesses it plans to call to testify.
“The Crown will say, 'We need six hours on the stand with this witness,' and the defense will say, 'Okay, we need about 10 hours for cross-examination,'” Rust said. “And you do that for all the witnesses that the Crown calls. And that's how the judge knows how long this trial is going to take.”
Both sides can also use Wednesday's time to establish certain elements of the case that will be considered factual, eliminating the need to spend court time proving what all parties have already agreed to.
“They might agree that there was sexual contact, so when the trial starts they know that's not something they need to prove or prove.” Afolabi said. “This narrows down the amount of evidence needed.”
“If the trial is going to be long, this is just a matter of scrutiny to make sure it's done as efficiently as possible,” Last said. “And the pretrial is the last filter before setting up the trial.”
On Wednesday, the judge plans to use a pretrial meeting to resolve any issues that may arise in court. For example, the Crown could use Wednesday's pretrial conference to exercise the right of complainants to testify at trial by video teleconference instead of appearing in person. This ensures that all parties are on the same page regarding the framework of the trial.
“The judge will have a checklist and will go through it with everyone,” Goldstein said. “It's almost like a pilot doing a pre-inspection before boarding a plane.”
Who will attend this pre-trial meeting?
A judge will preside over the pre-trial conference, and Crown representatives (those prosecuting the case) will also be present, as will legal representatives for each of the five accused players.
Based on court documents, the players have secured the following representatives: Luis Strezos (Dillon Dube), Juliana Greenspan (Cal Foote), Danielle Brown (Alex Formenton), and Megan Savard ( Carter Hart), David Humphrey (Mike McLeod).
Neither the defendant nor the complainant participates in the pretrial assembly.
“This is an opportunity to discuss this case frankly and openly,” Goldstein said. “You can’t always do that when you have customers.”
Given the nature of the conversations that inevitably occur, these meetings are held in private, often in the judge's chambers, and the proceedings are shrouded in strict silence. These are treated as “in-camera” meetings that are not open to the public or the media.
As a result of the frank and open dialogue that will take place, the judge presiding over this pretrial session will not be the trial judge in the future when this case comes before the court. Wednesday will discuss issues that may not be admissible at trial or conversations that could sway the judge in a certain direction.
“You don't want to bias the judge before the trial,” Robichaud said. “Before the trial, things may be discussed that are not allowed to be said in court.''
As a result, a different judge will be selected for the trial itself, and the judge will approach the court with a blank slate without knowing the details of the case.
What motions can the defense present?
On Wednesday, defense attorneys could indicate what motions they plan to file in a potential lawsuit.
All four lawyers were interviewed. The Athletic It is considered highly likely that the defense will bring forward motions relating to sections 276 and 278 of the Criminal Code of Canada.
Article 276 of the Penal Code limits the use of evidence regarding the complainant's sexual history. If a defense attorney wishes to use evidence along these lines, he or she must apply in advance to be granted permission. Defense attorneys must then clearly demonstrate why the evidence they are trying to include at trial is relevant to the specific issues relevant to their client.
Section 278 of the Penal Code prohibits defense attorneys from using certain records of a plaintiff, such as medical records, counseling records, and social welfare records, unless authorized by a judge.
“Articles 276 and 278 are often invoked by the defense in these types of cases,” Robichaud said. “Any sexual history must be scrutinized. In the case of text messages or private messages, the complainant has a reasonable expectation of privacy.”
One of the most high-profile trials in recent Canadian history could impact court proceedings for the five defendants in the case. In March 2016, famous Canadian broadcaster Jian Ghomeshi was found not guilty on five charges, including four counts of sexual assault.
In his verdict, Judge William Hawkins said: “The number of serious deficiencies in the evidence leaves the court with reasonable doubts.”
Ghomeshi's lawyer, Marie Enine, successfully brought to court an email that directly contradicted testimony from one of the accusers. However, since the Ghomeshi decision, Canada's Criminal Code has been amended to prohibit defense lawyers from introducing “surprising” evidence in court. Section 278 of the Criminal Code has been updated to require defense attorneys to inform both the Crown and the Crown's witnesses of the records they intend to present in court.
If defense attorneys plan to introduce communications where the plaintiff has a reasonable expectation of privacy, including text messages, they will likely need to file a pretrial motion to request permission.
“If the text messages involve the complainant, an application should be filed to bring them forward,” Afolabi said.
What happens next in this case?
The pretrial conference judge will gather all the information from Wednesday's trial and estimate how long the trial should last. They consider how many witnesses will testify, what type of evidence will be presented, and determine the amount of court time required.
“The judge might say, 'This trial will take 15 days and there will be three or four pretrial motions,'” Rust said. “Or if the judge estimates this trial will last two months, that means there is a large amount of evidence.”
A trial scheduling meeting (tentatively scheduled for April 9th) will be held to finalize the exact date of the trial. Crown attorneys and defense attorneys will attend virtual meetings with the Office of the Trial Coordinator to find a point of contact that is convenient for everyone involved in the case.
Legal experts still believe the case is likely to reach court until 2025 due to the current backlog of cases clogging the system, but at least one legal expert believes the case will likely reach court until 2024. We believe it is unlikely that the case will be heard at some point in 2020.
“Here in London, we are moving faster on this case than on other cases,” Afolabi said. “They are moving mountains to make this justice happen.”
(Photo: Andy Devlin/Getty Images)
