The sexual assault case of five hockey players faced another major upheaval Friday, abruptly converting from a jury to a judge alone in order to avoid a mistrial that would have rebooted the proceedings for a second time in less than a month.
Ontario Superior Court Justice Maria Carroccia ruled to discharge the jury Friday over concerns about possible jury bias. The move came after a juror sent a note to the Carroccia indicating some members of the panel felt two of the defence lawyers were laughing at them as they came into court each day.
She gave defence lawyers and prosecutors the opportunity to consider other options that would allow the trial to continue without a mistrial.
Jurors were not given a reason for their discharge, but in their absence, Carroccia said she was concerned there was a possibility several members of the jury could harbour negative feelings towards certain counsel that could affect their ability to fairly decide the case.
"It is reasonable to conclude that in this situation, negative feelings about counsel and how they conduct themselves might impact the jury's perception of the accused. This would obviously compromise the fairness of the trial," she said.
Defence lawyers had indicated they would agree to a judge-only trial as an alternative to a mistrial, but the move was initially opposed by prosecutors, who argued Thursday that switching gears weeks into their evidence could harm their case.
That changed Friday, however, when the judge made it clear the trial would otherwise go back to square one.
"Between these two options, we quite obviously prefer the one that doesn't cause further harm or doesn't further traumatize (the complainant)," prosecutor Meaghan Cunningham said.
Several witnesses have already testified, including the complainant, who spent nine days on the stand and faced more than a week of intense cross-examination.
Michael McLeod, Carter Hart, Alex Formenton, Dillon Dube and Callan Foote have pleaded not guilty to sexual assault. McLeod has also pleaded not guilty to an additional charge of being a party to the offence of sexual assault.
The charges stem from an encounter with a woman in a London, Ont., hotel room in the early hours of June 19, 2018. The players, who were part of Canada’s 2018 world junior team, were in town at the time for a gala marking their championship victory.
The trial, which began in late April, was already forced to restart due to a mistrial days after it started.
The reasons could not be reported at the time due to a standard publication ban on any evidence, submissions or rulings presented in the absence of the jury. However, the move to a judge-alone case means that information can now be disclosed.
Both mistrial applications were triggered by incidents that raised concerns over the jury's views of the defence.
On Thursday, a juror submitted a note to the judge indicating some panel members felt defence lawyers for Formenton were mocking them.
"Multiple jury members feel we are being judged and made fun of by lawyers (Daniel) Brown and Hilary Dudding," the juror wrote.
"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," according to the note.
Both lawyers denied doing anything of the like, and Carroccia said she had not seen any concerning behaviour from any of the defence teams or the men they represent.
Even so, lawyer Megan Savard, who represents Hart, argued on behalf of all defence counsel: "That negative belief that (jurors) hold about one member or multiple members of the defence team will attach to everyone on this side of the courtroom."
Public discourse around the case may have affected the juror's perception, Brown suggested in court.
Protests outside the courthouse meant to show support for the complainant have escalated into personal attacks against players and their legal teams, Brown said.
"I think that this discourse that's taking place both in a very public form outside the courthouse and on social media has perhaps infected the jury and perhaps led them to believe things that aren’t accurate," he said Thursday.
Several defence lawyers said they were now afraid to look at jurors when they came in, in case their actions were misinterpreted.
In a written statement on Friday, Brown and Dudding said their client has lost an opportunity to be tried by a jury of his peers because of an "unfortunate misinterpretation," but they are confident the judge will ensure a fair proceeding going forward.
"No defence counsel would risk alienating a juror, and nothing could be further from the truth in this instance," the statement said. "The very idea of counsel making light of a juror is illogical and runs directly counter to our purpose and function."
In court, prosecutors argued it would have been premature to declare a mistrial.
A more appropriate next step, they argued, would be to ask each juror whether they could weigh the evidence impartially and discharge those who said they couldn't. If enough jurors remained to continue with the trial, then an instruction would be appropriate, Meaghan Cunningham said.
"A mistrial is a remedy of last resort and it's only available where no remedy short of that relief will adequately redress the actual harm occasioned," she said.
The latest incident gives rise to "a much greater degree of unfairness" than the situation that prompted the first mistrial, the defence argued.
That stemmed from a brief interaction between Dudding, one of Formenton's lawyers, and a juror while both were in line to buy lunch at Covent Garden Market near the courthouse.
Dudding turned and noticed the juror, then said something along the lines of, "oops, I'm sorry, this is awkward," but did not initiate any discussion with the juror, the defence said.
The juror said a person she later identified as one of the defence lawyers turned to her and said, "There was a lot of head shaking going on this morning."
She mentioned it to another member of the jury, who suggested the interaction was inappropriate and then relayed the story to the rest of the panel, court heard.
Court staff were also alerted, since jurors had been instructed not to discuss the case with anyone outside of the courtroom.
At the time, Carroccia found that she did not need to determine what words were spoken during the encounter to conclude that a mistrial was necessary.
It’s enough that the jury has heard allegations that someone related to the trial spoke to a juror during the lunch break in violation of the court’s instructions, the judge said.
"My concern is that the circumstances of this case give rise to the possibility that one or more members of the jury may harbour negative feelings about defence counsel that could potentially impact on their ability to fairly decide the case," she told the court without the jury present.
The panel was discharged the next day. Jurors were not given a reason for their dismissal.
Picture Courtesy: THE CANADIAN PRESS/Nicole Osborne
