What's next for the NHL players charged with sexual assault? Lawyers weigh in
Last Monday, lawyers for five members of Canada’s 2018 world juniors team made their first appearance in a London, Ont., courtroom to hear the sexual assault charges against their clients stemming from a June 2018 incident.
The next court hearing isn’t scheduled until April 30, leaving a 12-week gap between appearances. The Athletic reached out to four Ontario-based lawyers this week to answer some key questions about what happens next in the proceedings. The lawyers were also asked to weigh in on comments made by the London Police Service, which held a news conference this week to make their first public statement on the case.
Sam Goldstein is a Toronto-based criminal defense attorney who has handled several sexual assault cases in court. He began his career working as a prosecutor and worked in all levels of the court system in Ontario.
Lakin Afolabi and Isaac Heo are criminal defense lawyers in London, Ont., who focus on sexual assault and domestic assault cases.
Nikolas Lust is an Ottawa-based criminal defense attorney who has represented clients in sexual assault cases.
Goldstein, Afolabi, Heo and Lust are aware of the details of the case that have been made public; none is affiliated with the case in any manner. All four spoke to The Athletic about this case on a general basis.
Defense lawyers reviewing the evidence
During a brief first court appearance last Monday, Crown attorney Heather Donkers told the court they were sending “substantial” paper and audio evidence to the five defense lawyers representing the players in this case.
This is known as the “disclosure phase,” in which the Crown and London police have to turn over all of the evidence they have in the case so the defense lawyers can review it.
“As the accused person, you have the right to collect all of the evidence against you. And the Crown has to provide it,” said Heo.
Goldstein said the next step for the defense would be a meeting with the client where you run through every piece of evidence with them.
“When you get all the disclosure, it’s normal that you go through everything with your client,” said Goldstein. “And you let your client know what defenses are available to them.”
Afolabi explained that when a defense lawyer is scouring the information they are looking for inconsistencies or mistakes that could exonerate their client.
“From the get-go, you’re looking at ways to defend your client,” said Afolabi.
The Crown would have sent evidence including interview recordings and transcripts with the alleged victim and witnesses. There would be notes from the original officers who investigated the incident, as well as any search warrants that were issued during the past six years.
Because the next hearing isn’t scheduled until April, Lust said this suggests there is a lot of evidence.
“A 12-week adjournment suggests to me this is very complex,” said Lust. “It tells me there is an absurd amount of evidence. In large cases I work, from the date of the first appearance, I’m usually looking at a six-week adjournment to allow the defense to go through the evidence.”
One complicating factor that could explain the gap between hearings is the fact there are five defendants in this case, which the lawyers interviewed for this story agreed is atypical. There is a need to coordinate the schedules of all five lawyers to ensure potential court appearances and dates work for all the parties involved.
Whether or not there is cooperation or collaboration among the five lawyers in the weeks ahead remains to be seen. Would one lawyer reach out to another to check notes on the disclosure evidence they reviewed? Would they collaborate on a strategy that could be mutually beneficial for multiple parties?
“Some lawyers are lone wolves. They’ll say, ‘I’m just here to protect my client,’” said Afolabi. “Other lawyers are very collaborative and will take whichever persona serves their client the best.”
“None of these lawyers have any obligation to any of the other clients. You only have an obligation to your own client,” said Heo. “So your decision to talk to other lawyers can only be based on: ‘Is this going to help or hurt my client?’”
Police chief’s apology to the alleged victim
In the department’s first remarks about this case last Monday, London Police Service chief Thai Truong issued an apology to the alleged victim.
“I want to extend, on behalf of the London Police Service, my sincerest apology to the victim, to her family, for the amount of time that it has taken to reach this point,” Truong said.
Goldstein said that issuing that public apology opens the door for the defense lawyers representing the five players to question how this case has been handled by the police.
“I think the chief of police’s apology certainly undermines the credibility of the investigation,” said Goldstein. “And it lays the ground for the defense argument.”
Lust said if he were a defense lawyer on this case, he would be “licking his chops” because he would see an avenue for a strong defense. Lust said he believes there is an argument to be made that the London police’s delayed approach infringed upon the rights of the five men accused.
“The police better have a good explanation as to why this took six years to lay charges. Because if they don’t, each defense lawyer in this case should be walking into court and filing a motion pursuant to section seven of the charter for abuse of process,” said Lust. “The remedy to that is for the case (to be) dropped. And that would be an earthquake for the London police.”
Goldstein also raised the possibility of Truong’s comments having an impact on a criminal trial being held in London.
“It opens up the door to the defense for the case to be moved to another jurisdiction,” said Goldstein. “When you have a chief of police apologizing, you’ve tainted the jury pool in the city of London.”
Goldstein pointed to a recent case that was moved out of London, involving Nathaniel Veltman, who was found guilty of four counts of first-degree murder in a truck attack that killed four members of a Muslim family in 2021. In that case, a judge ruled in August 2022 that the trial needed to be moved from London to Windsor, Ont., because of the intense media coverage of the incident, including comments from the prime minister, Ontario premier and London mayor, who condemned the attack.
How the Jian Ghomeshi trial could impact this case
One of the most high-profile trials in recent Canadian history could have an impact on the court proceedings for the five defendants in this case. In March 2016, well-known Canadian broadcaster Jian Ghomeshi was acquitted of five charges, including four counts of sexual assault.
In his verdict, Judge William Horkins stated, “the volume of serious deficiencies in the evidence leaves the court with a reasonable doubt.”
Ghomeshi’s lawyer, Marie Henein, successfully introduced emails into the court that directly contradicted the testimony from one of the complainants. But since the Ghomeshi verdict, the Canadian Criminal Code has been amended to prevent defense lawyers from presenting “surprise” evidence inside the courtroom. Section 278 of the Criminal Code has now been updated to compel defense lawyers to inform both the Crown and any Crown witnesses about records the defense intends to show in court.
“Now, if you have text messages that you’re going to surprise them with at trial, you have to file for an application and ask for the court’s permission to use those messages,” said Afolabi. “So the Crown gets tipped off that you’re going to ambush them and they have time to craft their response. Previously, the defense had an element of surprise. That’s no longer the case.”
In this case, the Crown has three attorneys — Heather Donkers, Kristina Mildred and Meaghan Cunningham — seeking to convict the five hockey players.
Cunningham has been brought into this case from outside of her jurisdiction; she normally works in Ottawa and eastern Ontario. But her expertise is sought in this matter because of her experience as a litigator and the fact that she sits as the chair of the sexual violence advisory board for the province of Ontario.
Lust — who has been pitted against Cunningham in the same courtroom — believes the Crown is bringing her in because this is a high-profile case they cannot afford to lose.
“Marie Heinen walked all over the Crown in the Ghomeshi case. And I think the Crown wants to avoid that this time around,” said Lust. “I can tell you from personal experience, nobody is walking over Meaghan Cunningham. Where she shines most is her ability to conduct a trial. She argues with a conviction and passion you rarely see in a courtroom. And she is a force to be reckoned with.”
(Illustration: John Bradford / The Athletic; Photos: Jana Chytilova / Freestyle Photography, Ethan Miller, Leah Hennel, Michael Reaves, Kevin Sousa / Getty Images)