Judge orders law firm to hand over records, evidence on alleged Hockey Canada assault

Content Warning: The following article contains references to sexual assault.

A Toronto law firm hired by Hockey Canada to investigate an alleged sexual assault in June 2018 involving World Juniors players and a woman identified in court records as E.M. has been ordered by a London, Ont., judge to turn over all of its findings on the incident, newly unsealed court documents indicate.

In a ruling issued Oct. 21, 2022, Ontario Court of Justice judge Joseph Carnegie wrote he was ordering Henein Hutchison lawyer Danielle Robitaille to turn over to police “the fruits of the independent investigation into the alleged sexual assault of E.M. that took place on or about June 19, 2018, by members of the 2018 Canadian World Junior Hockey Team. This shall include, but not be limited by, all interviews of the hockey team, the victim E.M., independent witnesses, and the coaches and staff. This shall also include any digital or forensic evidence, including, but not limited to, surveillance videos, text message conversations, or social media-based conversations.”

It's unclear whether Robitaille has complied with the judge’s order. She did not respond to an email requesting comment.

Carnegie wrote that after police receive the records from Henein Hutchison – which was hired in June 2018 by Hockey Canada to investigate the incident – they should remain sealed until he has the opportunity to review them.

“The court shall thereafter examine the sealed material and convene a hearing to receive submissions from the Crown and from affected parties who may have a privilege to assert,” Carnegie wrote. “The court will rule on any claims of [solicitor-client] privilege and decide whether or not any of the seized documents or data will be released to the police.”

The court records, which are redacted to protect the identity of the people involved in the case, include a 94-page summary of the case written by London Police Services sergeant David Younan and offer the most detailed account to date of the alleged sexual assault involving the Team Canada players. 

The records indicate London police believe they have reasonable grounds to charge five players with sexual assault. The allegations against the players have not been proven or tested in court.

The Globe and Mail, which first reported on the records on Sunday, learned of their existence and filed a motion in a London court requesting that they be unsealed, Crown Counsel Jason Miller wrote in an email to TSN.

After TSN reported in May that a woman referred to in court documents as E.M. had settled a $3.55 million lawsuit against Hockey Canada, the Canadian Hockey League and eight unnamed former CHL players, a parliamentary committee convened a series of hearings to demand more information from Hockey Canada about both the case and about how Hockey Canada has historically managed sexual assault allegations.

The scandal has led to the departure of Hockey Canada chief executive Scott Smith and the organization’s entire board. A new nine-member board was elected on Saturday. The new interim board will serve a one-year term and be responsible for hiring a new chief executive. 

The London court records also show that several players have been interviewed multiple times by London police, that other members of the 2018 World Juniors team could become suspects as the investigation proceeds, that police have obtained video from the Delta Armouries Hotel in London showing E.M. arriving at the hotel with one of the players, and that police are still searching for an Uber driver in London who drove E.M. home following the alleged sexual assault.

Following the alleged assault, “E.M. struggled to find her way out of the Delta Armouries hotel,” Younan wrote in a case summary. “She felt lost and was crying. At one point, she was in the dining area until she managed to locate the exit. E.M. ordered an Uber and cried on the ride home… the Uber driver, having observed E.M. in an upset state, attempted to console her until he dropped her off at home. The identity of this Uber driver is not known by police. His identity is important because police would like to interview him and determine what conversation occurred between him and E.M. This information could corroborate or discredit E.M.’s statement to police.”

Carnegie wrote that he would grant a request by London police for a production order to Uber Technologies to provide the driver’s identity.

Against a backdrop of building public pressure, London police in July reopened their investigation into the case after initially closing it without laying charges in February 2019.

“During the renewed investigation, police officers have conducted re-interviews of some of the persons involved and were also able to interview new individuals who were not previously spoken to,” Younan wrote.

Younan wrote police have obtained an additional written statement from E.M. about the events of June 19, 2018.

“During the renewed investigation, police were also able to discover the existence of a group chat between players that formed the world junior hockey team. Since then, investigators have obtained portable thumb drives from several players, through their lawyers, that contain text message conversations from the original 2018 hockey team group chat. These thumb drives have not been reviewed by police and are sealed in a locker pending judicial authorization.”

Even though police obtained the thumb drives from lawyers for the players this past August and September, Younan wrote that investigators would not review the contents of the drives without a warrant.

Younan wrote that five former Team Canada players are believed to have committed criminal offences. Others are witnesses, he wrote, adding that, “Others may or may not become suspects.”

Younan wrote that police are also seeking a warrant to enter the hotel room where the alleged assault took place so they can create a 3-D map of it. The Delta Armouries Hotel in London have refused police permission to do that without a warrant, he wrote.

The documents also recount E.M.’s version of events following a Hockey Canada gala event on June 18, 2018, in London.

After E.M. went with her friends to Jack’s Bar in downtown London, she met a number of Team Canada players and an older, well-dressed man who was with the players and at one point poured a shot into her mouth and told her to “take care” of the player she was with. She told police that after she arrived at the bar at about 11 p.m. and before she left with Player 1 between 1:30 to 2 a.m., she remembered having a vodka soda, a beer, and eight Jaegerbomb shots.

That man, who is referred to as M.M. in court records, has been interviewed by police and has said he does not recall much about the night of the alleged assault, the court records say.

The case summary also cites Player 1 saying he searched for E.M. on Instagram after hearing from Hockey Canada that a report had been filed with police about an alleged sexual assault. That player then contacted E.M. and asked her not to proceed with any criminal complaint.

Liberal member of parliament Chris Bittle, who is a member of the Canadian Heritage committee that has been questioning Hockey Canada officials in recent months, said it’s in the public interest to identify both M.M. and the Hockey Canada official who allegedly tipped off Player 1 about a police investigation.

“We need to know who both of those people are,” Bittle said in an interview with TSN on Monday. “Hockey Canada has presented itself as an organization that has accepted responsibility for the broader event but no direct responsibility for the actions that happened. There’s more questions that need to be answered. Even at this point I’m still not done being shocked by this story.”

E.M. told police that Player 1 “seemed sweet” when she first met him.

The documents recount E.M. telling police that after she had consensual sex with Player 1, he appeared to be on his cell phone texting. After a period of time, two of Player 1’s teammates entered the hotel room. E.M. said she was “initially comfortable for a little bit.” Then, after she went to the bathroom, she came out to find “approximately 7 or 8 guys in the [hotel] room with her.”

“E.M. recognized some of them as being Player 1’s friends from Jack’s Bar. Player 1 was not initially in the hotel room when the guys were there, and she did not know where he went.

E.M. later learned that he had ordered himself food—chicken wings. As the evening progressed, E.M. observed Player 1 on the bed, eating them. E.M. described Player 1 as being “in the background” after [specific sex act(s)].”

E.M. told police that the player told her to lie on the ground and she complied.

“E.M. explicitly told the men she was not comfortable with lying on a dirty hotel floor, so they placed a bed sheet on the ground for her,” Younan wrote, adding that E.M. told a detective “the group was making fun of her and laughing at her expense.”

One of the players, Player 1’s roommate, entered the room and began engaging in a specific sex act “without saying a word,” Younan wrote. “The group of guys were talking around her and about her, but not with her. The group of guys were saying things like ‘you do this, and you do this.’” 

E.M. said the group started slapping her buttocks and that she had told them to stop “because they were slapping as hard as they could.”

E.M. told police she had felt like an object during the incident and that at one point she had gone to the bathroom and cried.

“The guys said, ‘oh she’s crying’ and then they would tell her to come back out ‘it is fine’. E.M. felt a degree of hesitation being there in the hotel room. E.M. describing it in the following way: ‘I don’t want to be doing this anymore,’ but also did not verbalize it to the guys inside the hotel room. E.M. would get dressed to leave and say she was leaving but was told to stay. The guys would state: ‘oh come on, don’t leave’ and then walk her back within the hotel room.”

E.M. told police that no one physically stopped her from leaving the room.

The players allegedly made three video recordings of E.M. during the incident. One video’s existence has not been previously reported.

In one six-second video recorded at about 3:25 am, an unidentified player asks E.M., “You’re okay with this”

“I’m okay with this,” she responds.

A second video, 12 seconds long, was filmed at 4:26 am.

“Are you recording me?” E.M. said on the video. “Okay, good. It was all consensual. You are so paranoid. Holy. I enjoyed it. It was fine. It was all consensual. I am so sober, that’s why I can’t do this right now.”

Lawyers representing several of the players showed TSN those videos in the summer, arguing that any sexual contact between players and E.M. had been consensual.

Younan’s case summary indicates that E.M. told detective Stephen Newton that a third video was also recorded during the incident.

“E.M. told the officer that near the end of the night…. Player 1 started to record her on his phone and said, ‘You are not going to the cops, are you?’ E.M. replied, ‘No, fine not going to the police.”

After the alleged assault, E.M. said Player 1 told her that he had to sleep to get ready to golf at 7 a.m. and said to her, “Are you going to leave anytime soon?”

“E.M. felt disrespected about how the night unfolded,” Younan wrote. “She told Detective Newton she was okay leaving Jack’s Bar with Player 1 but did not expect the rest of the events to happen. E.M. called Player 1 “a jerk” after he declined to escort her out of the hotel... Player 1 was concerned with sexually transmitted diseases. He asked E.M. if she ‘had anything’ and if she was sure she didn’t ‘have anything.’ Player 1 also appeared worried E.M. would go to the police.”