Judge discharges jury at London hockey trial

LONDON, ONT. – Justice Maria Carroccia has discharged the jury in the trial of five former members of Canada’s 2018 world junior hockey team after a juror complained that defence lawyers were acting unprofessionally, three weeks after a juror complaint about one of the same lawyers led to a mistrial.

Carroccia thanked the 14 jurors and dismissed them on Friday morning. The judge did not provide the jurors with a reason for their dismissal. The trial will now continue by judge alone.

Michael McLeod, Alex Formenton, Dillon Dube, Callan Foote, and Carter Hart are charged with sexually assaulting a woman identified in court documents as E.M. in June 2018 at a London hotel following a Hockey Canada golf and gala event. McLeod faces a second sexual assault charge as a party to the offence. The defendants have pleaded not guilty.

If the Crown had opposed the defence motion to move forward as judge alone trial, it would have raised the prospect of a new trial in which E.M. would have had to testify publicly for a second time. A new trial would also have meant the defence could cross examine E.M. on her testimony in this trial, in addition to the previous statements she has provided to London police and Hockey Canada investigators.

The development came a day after Carroccia was handed a note from a juror after the morning recess. In the absence of the jury, the judge read the note aloud.

"Multiple jury members feel we are being judged and made fun of by lawyers [Daniel] Brown and Hilary Dudding,” the note said. “Every day when we enter the courtroom they observe us, whisper to each other and turn to each other and laugh as if they are discussing our appearance. This is unprofessional and unacceptable."

Brown and Dudding immediately turned to look at each other, and Dudding mouthed “what?”

Carroccia announced a recess for the legal teams to decide what they thought should happen next. When they came back, Crown attorney Meaghan Cunningham said an inquiry should take place, one in which each juror was individually brought into the court and questioned about whether they believed they could still move forward and decide the case impartially.

“Certainly, the note raises issues of impartiality,” Cunningham said. “But in my submission, the court can’t jump straight from this note to a mistrial… The appropriate next step would be to conduct an inquiry and see how many impartial jurors we are with. Then we need to see where we are at that point.”

The defence took a different view.

“We take a very serious view of the note,” Carter Hart’s lawyer, Megan Savard, said. “This is a worse case of jury tainting than the last time around.”

Savard was referencing the first mistrial in the case, which occurred on April 24. That mistrial was also tied to alleged improper conduct by one of Formenton’s defence lawyers.

Savard said that the defence would file a motion for a mistrial and would agree to move forward with a trial by judge alone.

Cunningham said that she had prepared for the case and led evidence in the case based on a trial by jury. Cunningham said the Crown would not consent to a re-election by judge alone.

Court was adjourned for the afternoon as the judge considered her decision.

On Friday morning, after Carroccia said she would grant the defence motion for a mistrial, Cunningham said that the Crown would agree to move forward with the case as a trial by judge.

“I agree with the defence that it would be difficult to ask the jury to set aside their perceptions when those perceptions are in relation to themselves, although I recognize that jurors are presumed to be impartial and are presumed to follow the directions of the trial judges,” Carroccia said.

“It is with reluctance that I have determined that the fairness of his trial has been compromised. In the circumstances I must discharge the jury to protect trial fairness. Having said that, I will permit counsel to reconsider whether there are any other options, including the consenting to a re-election by the accused to permit this matter to continue. If there is not no remedy short of a declaration of a mistrial would adequately address the impact on a fairness of the trial and the motion for a mistrial would be granted. Those are my reasons.”

In a joint statement sent to the media as soon as Carroccia announced she was discharging the jury, Brown and Dudding wrote that “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. While it is true that co-counsel will speak with one another from time to time during a trial, this is commonplace. The very idea of counsel making light of a juror is illogical and runs directly counter to our purpose and function.”

When asked if they would elaborate on their statement, both Brown and Dudding declined to comment.

“We’re just trying to stay focused,” Dudding said.

On April 24, the second day of the initial trial, Carroccia announced she had been handed a note from a juror. Only a day earlier, a jury of 11 women and three men had been selected to judge the case. On the morning of April 24, assistant Crown attorney Heather Donkers had addressed the jury and delivered her opening statement.

Carroccia revealed after lunch to the court that the juror who had written the note had alleged that one of the lawyers involved in the case had approached her during the lunch hour. Carroccia asked the lawyers to meet privately and then tell her what had happened.

When court resumed, Brown stood and addressed the judge, explaining that there was a misunderstanding at London’s Covent Garden Market. Brown explained that his colleague, Dudding, had stood next to one of the jurors while they were both ordering lunch from the same vendor. Dudding made an innocuous comment to fill a moment of awkward silence, Brown explained.

The juror was then brought into the courtroom and explained that the lawyer who spoke to her had said, “that’s a lot of head nodding.” After being asked by Carroccia if she saw the person in the room who had made the comment, the juror stood up and scanned the room before pointing her finger at Dudding.

The juror shared that she had spoken about the incident with another juror on their way back to the downtown London courthouse. And after they made their way to the jury room, the entire jury had been apprised of what had happened.

After the juror left the courtroom, the debate continued. Brown insisted that Dudding’s actions were no more than a reflexive nod between two people in a public place. Nevertheless, he argued that the truth didn’t matter because the jury has been prejudiced.

“At least one of us has been deemed a rule breaker before we even get up and address them,” Brown told the court.

Defence lawyers argued that since the trial was only on its third day, it would not be a huge inconvenience to convene a new jury, especially because a jury pool of 100 new potential jurors could be available to immediately select a new jury.

Cunningham insisted that mistrial was not warranted and that the jury could simply be given an instruction that nothing inappropriate had happened.

“A mistrial should be a last resort,” Cunningham said. “All these jurors have already taken time out and committed themselves to this civic duty… This trial should not be taken out of their hands”

“My concern is circumstances may harbour negative feelings about defence council,” Carroccia said. “It’s clear they are all aware… Jurys must be kept free from the taint of outside influence. Further inquiry won’t serve purpose. Fairness to the accused requires to declare a mistrial.”

Dudding then asked to address the court and said how “acutely painful” the experience had been and how the incident served as a reminder of how vigilant lawyers need to be.