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What the organization’s independent investigator and prominent pc28����lawyer Danielle Robitaille didn’t tell the players is that by August 2022, she was aware that London police planned to get a warrant to seize her investigative file as part of its own reopened investigation. And, on top of that, Hockey Canada had told police it wouldn’t try to block them from taking the files by asserting solicitor-client privilege.

The police plans for a warrant meant they now had a basis to believe that at least some of the players had committed a sexual assault. The men were declining to speak to police to maintain their right to silence. Court records show that London police were hopeful that Robitaille’s own interviews — which she had said were confidential — may have uncovered new leads that could be useful in making the case for criminal charges.��

Robitaille pressed ahead with interviews into the fall, keeping Alex Formenton, Michael McLeod, and Dillon Dubé in the dark about police intentions as she grilled them about the events of June 18-19, 2018. Under penalty of a lifetime ban, they provided detailed accounts of what happened, maintaining that their sexual contact with the complainant was consensual and that the woman was insistent on having sex with players that night.

Dubé also admitted to slapping the complainant and hearing McLeod telling someone��“You next” in the room, while both he and Formenton said they saw player Cal Foote do the splits over the complainant’s body. McLeod said the complainant was “asking for a lot of crazy things,” and said inviting other players back to his room was her idea. He said that he repeatedly checked in with her throughout the night to make sure she was OK with what was happening.��

Was Robitaille “oblivious,” McLeod’s lawyer David Humphrey asked her during pre-trial hearings last year, to how potentially valuable these statements could be in the hands of the police and the Crown, as they made their case for criminal charges?��

“I just didn’t care,” Robitaille testified. “It was collateral to me.”

Once the court order was served on Robitaille’s firm in October 2022, the statements of the three men went straight to the London Police Service. Robitaille then cancelled her upcoming interviews with Foote and Carter Hart, the two other players who were subsequently charged and are now on trial.

Superior Court Justice Bruce Thomas ruled last year that the statements had to be excluded from the case, and so they were never heard at the players’ ongoing high-profile trial. Thomas found that the manner in which the statements were obtained was “so unfair and prejudicial” that they could not be used by the Crown at trial.��

The decision Friday by the five accused men to re-elect to be tried by a judge instead of a jury means Thomas’s ruling can now be made public, along with the players’ statements themselves and the behind-the-scenes details of Hockey Canada’s probe into the matter.

Robitaille “forged ahead knowing full well that the statements she compelled were going to end up in the hands of police,” Thomas wrote in his December ruling.

“The statements of the three applicants must be excluded from evidence as the admission would offend their right to a fair trial,” Thomas said, agreeing with the defence lawyers’ descriptions of the interviews as compelled, coerced, and involuntary. He added: “I would suggest that the manner in which the applicants’ statements were compelled by Hockey Canada would be seen as unfair by the public and would detrimentally affect the concept of a fair trial.”

The Crown had wanted to use the statements to highlight potential inconsistencies between what the players told Robitaille and what they told a jury, should they choose to take the stand. The Crown argued there were “significant areas of potential impeachment” if the players strayed in their testimony from what they told Robitaille.

What’s less clear is how big a role the statements played in London police’s decision to lay criminal charges, as it was one of the few pieces of new evidence they didn’t have when they first investigated in 2018 and interviewed most of the players now on trial.

In an application for a warrant in 2022 to get Robitaille’s file, London police officer David Younan said it would be reasonable to believe that Robitaille “asked different questions of the players than our own investigators, and therefore, elicited different answers or new information about what occurred.” He said a court order was also necessary because he was “concerned that the players who cooperated with the independent investigation may not understand that the interview could be shared with police.”

Hundreds of pages filed in the court proceedings offer a behind-the-scenes look at Hockey Canada’s investigation into the allegations that a 20-year-old woman was sexually assaulted by multiple players in 2018. They show the difficulties Robitaille had in getting the complainant to participate in her initial investigation in 2018 — causing it to be put on hold — and how the players’ lawyers were vehemently against their clients participating in the re-opened 2022 probe; they believed Hockey Canada was already communicating to the public that their clients were guilty, in a bid for damage control in the face of a growing public scandal.��

Robitaille’s firm, Henein Hutchison Robitaille LLP, told the Star in a statement it was retained by Hockey Canada to complete “a conduct investigation pursuant to the Hockey Canada code of conduct and to deliver a written report.��

“We did just that both professionally and effectively. The criminal trial is ongoing and accordingly, we will not make any further comments at this time.”

The 2018 investigation: The complainant refuses to talk��

Robitaille’s involvement in the case began shortly after the alleged sexual assault. The partner of the complainant’s mother called Hockey Canada on June 19, 2018, to report the alleged incident the previous night, but with very few details.

He told Hockey Canada the complainant had gone back to the hotel room of a player named “Mikey” (later identified as McLeod) and had sex, and that other players came in later and a sexual assault may have occurred. He said she was embarrassed and didn’t want to report it.��

The organization reached out to Robitaille. A lawyer who is no stranger to high-profile cases, Robitaille represented disgraced ex-CBC radio host Jian Ghomeshi at his 2016 sexual assault trial alongside law partner Marie Henein, where Ghomeshi was acquitted of all charges.��

Robitaille advised Hockey Canada to call the police, which they did. Soon after, she was asked by the organization to conduct an independent investigation into whether any members of the juniors team had breached their code of conduct. She interviewed multiple players, coaches and staff in parallel to a criminal investigation being conducted by London police.��

Of the five players now on trial, the only one she interviewed in 2018 was Cal Foote, who was treated as a witness to sexual activity in room 209 that night. He told Robitaille that the complainant seemed fine and had said, according to a transcript of Foote’s interview: “Can any of you guys f-‌-‌- me? Am I not good enough? There’s 10 of you in here.” (Two other players who witnessed events in the room told Robitaille the same thing.)

Robitaille’s investigation soon hit a major roadblock: the complainant didn’t want to speak with her until the police had finished their probe.��

“And so my investigation was stuck,” she testified last November at pre-trial hearings on the defence motion to have the players’ 2022 statements excluded.

The players she was most interested in speaking to — those whom she believed may have played the biggest role in the events of that night at the Delta Armouries hotel — were also asking to defer sitting down for an interview until the police investigation was over. Given that the complainant wasn’t participating either, Robitaille agreed. She ultimately paused her probe on July 24, 2018.��

Once London police closed their own investigation in February 2019 without laying charges, Robitaille reached back out to the complainant, hoping to reopen her internal probe. But to no avail.

“There was a period of 18 months following the conclusion of the criminal investigation where my office sent emails, letters, phone calls — a bit persistent — to (the complainant’s) counsel, to get her version of events,” Robitaille testified.��

“I sent an email to (the complainant) saying something like, ‘We’re closing your case.’ I had some experience that sometimes when you send that sort of email, that does cause people to re-engage, which I thought was a possibility here.”��

But the complainant did not re-engage. And Robitaille shut down her investigation in September 2020.��

Two years later, when the scandal erupted, the players’ lawyers would argue in correspondence with Hockey Canada that the organization had publicly suggested that some of the players didn’t cooperate with Robitaille’s probe when, in fact, they had just asked to defer their interview until the end of the police investigation. But once that was over, Robitaille never reached back out to schedule interviews.��

She maintained that she couldn’t without the complainant’s version of events.��

“I had a double hearsay, bare allegation,” she testified, referring to how the few details that had been reported to Hockey Canada came from the complainant’s mom’s partner. “It just wasn’t fair for me to proceed with player interviews without detailed allegations.”

The 2022 investigation: The players are ‘compelled’ to participate

Everything changed in May 2022 when that Hockey Canada had settled, for an undisclosed sum, a $3.5-million lawsuit filed by the complainant the previous month against the organization, the Canadian Hockey League and eight unnamed John Does, alleging sexual abuse by the players. She also alleged that Hockey Canada “failed to take steps to investigate the activities of the John Doe defendants once it was fully aware of their actions,” but didn’t mention Robitaille’s 2018 probe nor her refusal to participate.��

Correspondence from the players’ lawyers shows they hadn’t been told of Hockey Canada’s intention to settle, or even that a claim had been filed. Meanwhile, news of the settlement led to backlash against Hockey Canada, as sponsors began to pull out and executives were called to testify before the House of Commons standing committee on Canadian heritage.

The case soon sparked larger questions about sexual misconduct in professional sports, and what was being done to investigate and prevent it, and led to the revelation that Hockey Canada had been using a fund partly made up of players’ registration fees to pay millions of dollars to respond to sexual assault allegations.��

The public outcry caused both London police and Hockey Canada to reopen their respective investigations — once again in parallel, but this time things would be different.

In a widely published “” in July 2022, Hockey Canada said that players who didn’t participate in their probe would be “be banned from all Hockey Canada activities and programs effective immediately.”

“We know we have not done enough to address the actions of some members of the 2018 National Junior Team,” read the Hockey Canada open letter. “What happened in London, Ontario in 2018 was completely unacceptable and we once again apologize to Canadians, the young woman, and all those who have been impacted.”

In his December ruling, Thomas wrote that such a ban would prohibit the players from participating in the world championships or the Olympics, as well as coaching any teams affiliated with Hockey Canada — even their own children’s team. In her testimony last year, Robitaille also agreed with the defence that “naming and shaming” players who didn’t participate in her probe would publicly link them to allegations of “gang rape” and destroy their careers.��

Something else that was different in 2022 was that Robitaille now had a statement from the complainant, sent by her lawyer, outlining her allegations. (At trial, the complainant admitted that the statement contains multiple errors and was actually written by her civil lawyers.) Robitaille later interviewed the woman as well.

In the statement, she alleged she was too intoxicated to consent and that McLeod and the other men should have known this. While she said she wasn’t physically prevented from leaving the room, she also said she didn’t feel like she could, given the number of “large” men in the room. She felt she had to stay and go along with everything.��

“I was stuck in that room and I didn’t really have a clear exit even if I wanted to leave,” she said. “I felt like I was just there for their entertainment.”

Behind the scenes, the players’ lawyers were expressing concern to Robitaille that Hockey Canada’s choice of language showed it had already decided they were guilty; the open letter coupled with comments made by executives before the House committee made it sound like Hockey Canada believed the sexual assault really did happen, even though its re-opened investigation had barely begun.

Their clients were being compelled to give interviews to a probe they didn’t believe could be independent or impartial, the lawyers said. But Robitaille maintained that her investigation would keep an open mind and remain confidential.

“We can unequivocally advise you that we have formed no views whatsoever in relation to the allegations that prompted this investigation,” Robitaille wrote to the players’ lawyers in a pair of letters in July 2022. “Our investigation is confidential and we will take any and all reasonable steps to protect the anonymity of the participants, including the complainant and the players.”

The landscape around the players’ legal jeopardy had also dramatically shifted. When some of the players agreed to speak to police in 2018, they were told upfront that police had no grounds to believe a sexual assault had occurred. In 2022, there was immense public pressure on Hockey Canada and the police to do something and, as a result, the players were declining to speak with police.

But they were being forced to speak to Robitaille, and were worried that their statements could end up in the hands of the police anyway.

What the players said

In their 2022 interviews with Robitaille — of which only handwritten notes exist — McLeod, Dubé and Formenton echoed Foote’s 2018 interview, saying the complainant told the room she wanted to have sex with players. After McLeod and the complainant returned to his room and had consensual sex, he had sent a text to other players about a “three-way,” and Hart replied “I’m in.” McLeod told Robitaille his text to the group was prompted by the complainant: She said “tell teammates to come, I want to do stuff with them too, fantasy of mine,” according to the notes.��

McLeod had intercourse and oral sex once more with the complainant that night. Dubé, the team captain, said she briefly licked his testicles, and recalled hearing McLeod telling someone in the room: “You next.” He also admitted to slapping the complainant on the buttocks once or twice — something not mentioned in the 2018 police report summarizing his interview at the time. Stating he was very drunk in the room, Dubé told Robitaille he had been holding a golf club in his hand (the players were in London for a charity golf tournament) and the complainant said to him: “Are you going to f-‌-‌- me or play golf?”

“I was offput, didn’t want to have sex with her in front of people,”��Dubé said, according to the notes. “Slapped her on bum once or twice when she said that.”��

Formenton, who was McLeod’s roommate that night, told Robitaille he had sex with the complainant after she made eye contact with him and walked into the bathroom. He also recalled her crying at the end of the night to McLeod, saying he overheard her say, “Was I not hot enough?” as McLeod reassured her that many of the players’ decision not to have sex with her was because they had girlfriends.��

Formenton did two interviews with Robitaille in 2022; in the first one, he said he didn’t see anyone slap the complainant nor see Dubé touch her with a golf club. He returned for a second interview to tell Robitaille that he did in fact see��Dubé swing a golf club toward the complainant’s buttocks, but not make contact, and that he saw��Dubé “tap” her on the buttocks��— loud enough to hear��— while she was performing oral sex on McLeod.��

He admitted that��Dubé had asked him not to mention the golf club ahead of his first interview, telling Robitaille in his second interview that he had been “nervous, overwhelmed, didn’t want to throw��Dubé ‘under the bus,’ but now wanted to correct the record.”

McLeod told Robitaille he checked in with the complainant throughout the night to make sure she was fine with what has happening. “Asked her five times if she was having fun,” according to the notes. “Always said she was fine and having fun.” He said he told her if she ever didn’t feel comfortable, “let me know and I will ask them to leave.”

McLeod said the woman was “asking for a��lot of crazy things. If up to her, would have had sex with whole team ... Wouldn’t be surprised if asked guys to slap her ass but didn’t hear that.”

Had Robitaille pushed ahead with her interviews of Foote and Hart, court filings show that she would have put an allegation to Hart that he received oral sex from the complainant, and that Foote had been more of an active participant than he let on in 2018. Robitaille now alleged that he “teabagged” the complainant — straddled her and placed his testicles in her face��— without her consent, another piece of information not mentioned in the original 2018 police report. Both��Dubé and Formenton told Robitaille they had witnessed Foote doing the splits over the complainant’s face.

“A guy says Foote can do the splits; she says OK,” Formenton recalled. “So she’s laying on the ground parallel between the beds.��I remember he takes pants off, top clothes still on, does splits over her upper body.”

‘A virtual treasure trove of evidence’

In his questioning of Robitaille last year during pre-trial hearings, Humphrey, McLeod’s lawyer, suggested that she had signaled to the police that it would be a good idea to get her investigative file.��

He drew her attention to a July 2022 email she sent to Crown attorney Julia Forward, who was advising London police on its investigation. Forward knew Robitaille was about to testify before the House committee and wanted to see if she knew the complainant’s name. Robitaille said she did, as well as the names of all of the John Does in the lawsuit.

Robitaille went on to write: “In terms of my state of knowledge, am aware of names, detailed allegations, corroborative and contradictory evidence, etc. I am essentially in the same position as any officer would be, having completed the majority of the investigation in a multi-accused prosecution.”

After reading that aloud, Humphrey said to Robitaille: “As an experienced criminal lawyer, you’d agree that’s a pretty appetizing thing for you to say to a Crown attorney who’s advising the police on how to conduct their investigation?”

Robitaille said she wrote that hoping Forward and/or the police could help get her out of having to testify before the House committee, due to the ongoing parallel investigations.

But the effect of her response to Forward remains the same, Humphrey countered: “To a prosecutor, this would communicate to them that your investigative file is a virtual treasure trove of evidence that the police should want to have.”

By early August 2022, Robitaille was made aware that the police were planning to apply to the court for a production order to get her file. That position was made clear to her in emails from Det. Lyndsey Ryan, who was handling London police’s reopened criminal probe.

Ryan had also allowed Robitaille to view hotel lobby surveillance footage of the complainant and the players, as long as she agreed not to tell anyone. The defence argued this was a “shocking” agreement that allowed Robitaille to tailor her questions in line with the video evidence, eliciting answers the police planned to then obtain with their warrant, and ultimately influencing the prosecution.��

While finding it “odd” that Ryan would let Robitaille view the surveillance footage, Thomas disagreed that this was done to make her file more worthwhile to the police. Rather, “the demands for the applicants’ interviews and the timing of that coercion was done for Ms. Robitaille’s own purposes, and not to assist or influence the criminal investigation.”

Robitaille testified last year that she wasn’t told that she had to keep the police’s plans for a warrant confidential. So why not tell the players, Humphrey asked her.��

She responded that she saw it as a police matter; the players’ lawyers always assumed that the police might try to get a production order, and if they wanted clarity on that, they should have asked the police, Robitaille said.��

“Ultimately, I concluded that it didn’t fall into the category of evidence that I needed to provide notice of to the participants in my investigation,” she said.��

Her focus, she said, was on interviewing the players about the allegations against them and finishing her report. Only when the production order was formally served on her firm on Oct. 25, 2022, did she cancel her upcoming interviews with Hart and Foote, saying she was now worried about the loss of her probe’s confidentiality.

Robitaille was “unable to adequately explain to this court the difference she saw in knowing the production order was arriving imminently and having actually received it,” Thomas wrote in his decision.

Ultimately, the reason Robitaille pushed forward with the interviews in the first place wasn’t to help the police do their jobs, Thomas wrote. She just wanted to get the whole thing over with. He noted that as far back as 2018, Robitaille had been concerned the players were ignoring her probe in favour of the police investigation and complying with a separate NHL investigation.��

“She was upset that her investigation was treated as third in line,” Thomas wrote.��

“In addition, it was Ms. Robitaille’s view that this had taken ‘long enough.’ She needed to obtain the interviews and write up her report. She had her own taxing trial matters approaching and these efforts for Hockey Canada had consumed an inordinate amount of resources from the boutique firm where she worked.

“She needed to get this done.”