World juniors case raises consent questions, but appeal unlikely: experts

Legal experts say while the judge's reasoning on consent may raise concerns, the decision itself appears legally sound and may not form enough basis for an appeal.

An appeal by Crown prosecutors of Thursday’s acquittal of five hockey players in the high-profile world juniors sexual assault case is unlikely, legal experts say, despite questions about whether consent was properly considered.

Michael McLeod, Carter Hart, Alex Formenton, Dillon Dubé and Cal Foote were found not guilty of all charges after a weeks-long court case that centred on an alleged group sexual encounter in London, Ont., in 2018, in which the players had been accused of non-consensual sex.

The Crown has 30 days to decide whether to appeal the decision to a higher court.

In her ruling, Ontario Superior Court Justice Maria Carroccia said she did not find the female complainant, known as E.M. in court documents due to standard a publication ban, “credible or reliable.” She also dismissed the Crown’s argument that E.M. had only consented out of fear.

“This case, on its facts, does not raise issues of the reformulation of the legal concept of consent,” she said in her decision.

While those statements and others made by Carroccia have been criticized, even legal experts who take issue with them say they may not be sufficient grounds for an appeal.

“I don’t agree with the way that the judge came to her decision, but the decision is really well-reasoned,” said Daphne Gilbert, a legal professor who teaches courses on sexual assault law at the University of Ottawa.

“Appeal standards aren’t just that you disagree with the result. You have to to show an error in law. And I don’t see an error in law in the decision itself.”