How a judge-alone trial may impact the Hockey Canada sexual assault case

Justice Maria Carroccia's decision to discharge the jurors in the case against five former world junior hockey players charged with sexually assaulting a woman in a London, Ont., hotel room in 2018 has raised legal questions about the future of the trial. 

On Friday, Carroccia decided the Superior Court trial, which began on April 25 with jury selection, would proceed as judge-alone, meaning Carroccia will determine the legal fate of the defendants. Dillon Dubé, Cal Foote, Alex Formenton, Carter Hart and Michael McLeod — who all had NHL careers but are no longer in the league — have all pleaded not guilty. 

The sudden decision to discharge the jury came after a juror sent a note to the judge. It outlined concerns that two of the defence lawyers appeared to be whispering to each other and laughing at some of the jurors while they were entering the courtroom. Lawyers Dan Brown and Hilary Dudding, who represent Formenton, denied the accusations.

Still, Carroccia determined the jury could no longer be impartial in rendering a verdict and discharged them. 

This is the second time the jury has been dismissed in this case. Last month, a mistrial was called, again as a result of a jury-lawyer issue. It set the stage for the current trial, which began last late month and resumes this morning. 

CBC News spoke to legal experts not associated with the world junior case to discuss the latest turn of events and what this may mean going forward.

Cassandra DeMelo, president of the London Criminal Lawyers' Association, said she believes Carroccia made the right call in deciding to proceed before the judge only, as the jury was showing clear disdain or lack of respect for the defence counsel.

"I don't see how you could have continued with a jury after a comment like that about their alleged behaviour," DeMelo said.

The Crown had initially proposed either a mistrial with a whole new jury or an inquiry of the jury. During an inquiry, the jurors would have been individually interviewed to determine whether they held any biases.

But Toronto-based criminal defence lawyer Laura Metcalfe suggested it may not have even mattered whether those jurors could have set aside their strong resentment toward the lawyers in question.

"I don't see how at the end of the day, if the verdict is unfavourable ... how they [the accused men] and their family members can feel like they had a fair trial," she said.

Eventually, the Crown reluctantly agreed for a judge to hear the remainder of the trial alone. In part, the decision was made to avoid having to retry the case and submit the complainant — E.M., whose identity is protected under a standard publication ban — to another round of testimony that may "further traumatize" her.

The Law Society of Ontario regulates lawyers and paralegals in the province. Any member of the public has the right to file a complaint with the society about a legal professional's behaviour.

DeMelo said that in the world junior hockey case, any complaint would likely have to be made by someone with direct knowledge of the alleged incident — otherwise, it wouldn't likely get very far.