Content advisory: This article includes graphic language and details of alleged sexual assault

For seven straight days, E.M., the complainant in the sexual assault trial of five former members of Canada’s 2018 world junior hockey team, was cross-examined by defence lawyers who grilled her about inconsistencies and inaccuracies in the statements she gave about the alleged incident to London police and Hockey Canada.

If the players decide to take the stand in the high-profile case, they will not receive the same type of withering scrutiny about some of their past statements on what happened in a London hotel room on June 19, 2018, even though Crown attorney Meaghan Cunningham has argued statements from three of the charged players are riddled with inconsistencies.

Cunningham isn’t able to highlight those statements because notes from interviews Michael McLeod, Alex Formenton and Dillon Dube gave to a Hockey Canada investigator in 2022 were ruled inadmissible by Bruce Thomas, a judge who handled the pre-trial motions in the case.

Thomas ruled the handwritten notes were inadmissible because Hockey Canada in July of 2022 had threatened lifetime bans to anyone who refused to cooperate with Toronto lawyer Danielle Robitaille, hired by the organization in June 2018 to investigate the allegations. 

Robitaille initially closed her investigation in 2020, then reopened it in 2022 after the public learned Hockey Canada had settled a $3.55-million personal injury lawsuit filed by E.M.

(Players on the Canadian team faced no consequences in 2018 for refusing to cooperate with Robitaille; the lawyer only secured interviews with 10 of the team’s 19 players.)

Thomas ruled the players had been coerced to cooperate with Robitaille in 2022 and that their statements were not voluntary.

“These statements by three defendants were achieved through such significant unfairness in a process that was unfair to them,” Thomas said during a pre-trial hearing. “They were left with a choice but no choice at all… they were going to be exposed as a sexual predator [if they refused to cooperate with Hockey Canada]. And the effect of that cannot be disregarded by this court… I understand the probative value of the statements. The court fundamentally must protect trial fairness and the end cannot justify the means… They must be excluded and the Crown will not be able to use them for any purposes.”........

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