A brief encounter over the lunch break between a juror and defence lawyer Hilary Dudding last month led to the first sexual assault trial of five professional hockey players to come crashing down before it had barely begun.
Just three weeks later, Dudding would also be involved in the reasonwhy the jury at the second trial had to be suddenly dismissed on Friday morning, after multiple jurors complained that she and co-counsel Daniel Brown appeared to be making fun of them — something that both have strongly denied.
The Hockey Canada trial will continue as a judge-alone trial after jurors reported “being judged and made fun of” by lawyers for playerAlex
The Hockey Canada trial will continue as a judge-alone trial after jurors reported “being judged and made fun of” by lawyers for playerAlex
The reasons why Superior Court Justice Maria Carroccia declared a mistrial in April can now be made public, as the Crown and defence agreed Friday to keep the case moving without a jury as a judge-alone trial.
The lunchtime interaction is one in a series of incidents that have happened in and around the crowded London courthouse during the high-profile trial for Michael McLeod, Alex Formenton, Carter Hart, Dillon Dubé, and Cal Foote.
There were conflicting reports over what exactly was said at the Covent Garden Market near the London courthouse between Dudding and Juror No. 4 on April 23. But after learning that the entire jury had become aware of at least some details of the incident, and after hearing arguments from the Crown and defence, Carroccia declared a mistrial. She said she was concerned that one or more jurors may now have formed a negative perception of the defence team over what one defence lawyer called a “benign” encounter.
Carroccia discharged the jury of 11 women and three men on April 25 just three days after they had been selected. By that point, they had only heard the Crown’s opening statement and brief testimony from the prosecution’s first witness, a London police detective.
“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,” Carroccia said.
“In my view, fairness to the accused and to the administration of justice require that I declare a mistrial in this case and begin the trial again.”
The lunchtime encounter
It all started when court resumed after lunch on the first day of trial. Carroccia told the lawyers that a juror had reported to a court officer an encounter with a female lawyer from the case and there was a mention of “head nodding”; the five defence teams then huddled outside the courtroom to figure out what happened and what to do next.
Dudding’s co-counsel, Daniel Brown, then told the judge there had been a “relatively benign encounter” between the juror and Dudding while they were both in line to order at the market. Dudding was engaged in conversation about matters unrelated to the case when she turned around and realized the juror was behind her. She said to the juror, “Oops, I’m sorry,” and “It’s awkward,” Brown told the judge.
“In fact, the head nodding may have been that the lawyer was nodding her head, like ‘sorry,’” Brown said.
The London Courthouse.
Nicole Osborne THE CANADIAN PRESJuror No. 4 had a different version of events when she was called into court to tell the judge what happened while seated in the witness box. She said that Dudding — who she assumed was from the courthouse as she was wearing a lawyer’s court shirt — turned around in the line and said to her: “There was a lot of head shaking going on this morning.”
She identified Dudding in the courtroom as the woman who had spoken to her.
“I just remembered that I was told that I’m not supposed to say anything, so I just shook my head again, and that was the end of the conversation,” the juror said.
No. 4 stated that she was just trying to do “everything by the book to make sure this case doesn’t get thrown out.”
The judge had made clear to the jury in her opening legal instructions that they were not to discuss the case with anyone, nor were they to engage with anyone associated with the trial. She assured jurors they would not be considered rude if they were to simply walk by and ignore anyone connected to the case while outside of court.
After the encounter with Dudding, Juror No. 4 sat down for lunch with Juror No. 7, who said to No. 4 that if it was someone from the courthouse who had spoken to her, then that’s “inappropriate.” Once back at the courthouse, No. 7 raised the issue in front of the whole jury, though didn’t specify it involved one of the lawyers. No. 7 was also brought into court, and told Carroccia that all the jurors were talking about the incident. She relayed that No. 4 told her Dudding’s comment was: “There’s an awful lot of nodding going on.”
Brown told Carroccia that he trusted his colleague’s version of events.
“Ms. Dudding has been a lawyer for almost 20 years. She’s a veteran of countless jury trials,” he said. “I trust her when she says she didn’t turn around to a juror and say to the juror, ‘There’s a lot of head nodding.’ I can’t imagine a world in which any of that would happen.”
‘Acertain propensityto gossip’
In pushing for a mistrial, Hart’s lawyer Megan Savard, arguing on behalf of the five defence teams, said that ultimately it didn’t matter what was said in the encounter, while stating that Dudding’s integrity is “beyond reproach” and Savard would hire her if she was ever in trouble.
“To be clear, what happened is a juror alleged under oath that a member of the defence team behaved in a way that the entire jury now knows about and collectively views as inappropriate,” Savard told Carroccia, arguing that a minor encounter had now become inflated in the minds of the jurors.
“The prejudice to the defendants is certainly obvious: true or not, the entire jury is now fixed with the idea that at least one member of the defence team can’t go 24 hours without breaking Your Honour’s rules. At least one of us has been branded as a rule-breaker.”
Given that No. 4 and No. 7 were each offering a slightly different version of events, and that No. 7 also raised the incident with the other jurors, there were now concerns about the jury’s ability to do its job without bias, Savard argued.
The jury has heard — in graphic detail — her allegations about what took place inside a London, Ont., hotel room in 2018.
The jury has heard — in graphic detail — her allegations about what took place inside a London, Ont., hotel room in 2018.
“The jury has effectively and publicly put itself in a credibility contest with the defence team and revealed a certain propensity to gossip about one side of the courtroom,” Savard said.
“None of the men on this side of the room currently believe that this jury is capable of taking a fair view of them and their lawyers after hearing the evidence about the level of suspicion and gossip directed at this side of the room.”
Crown attorney Meaghan Cunningham pushed to save the jury by arguing that Carroccia could give them general instructions to put the incident out of their minds and probe whether the rest of the jurors had formed any negative impressions about anyone involved in the case. “A mistrial is an extreme remedy, and there should be a further inquiry of the jurors first,” Cunningham said.
The Crown’s proposal wouldn’t go far enough to preserve the trial’s fairness, Carroccia concluded. She said asking questions of the other jurors could “draw unnecessary attention” to the lawyers in a negative way, and an instruction would also just draw more attention to the lawyer who spoke to the juror.
She said it wasn’t necessary for her to determine what exactly was said between Dudding and No. 4, only that “the jury is aware that someone related to this trial spoke to a juror in violation of my instructions.”
Dudding described the whole situation as a “very distressing circumstance” when she stood up and addressed Carroccia after the judge issued her ruling, reiterating to her that the encounter was as Brown described.
“It has reminded me — and I have no doubt everybody else who is present in this courtroom — of just how vigilant we need to be,” she said.
“There are a lot of people involved here, there are a lot of things at stake, a lot of attention. And although every matter deserves that same degree of vigilance, I think there are some extra challenges here, and I wanted to convey that has been made very clear to me.”
Close quarters at the courthouse
The incident illustrated the challenges in maintaining distance between the various parties, due to the physical limitations of holding the high-profile trial at the London courthouse.
The case was playing out in a courtroom on the 14th floor that could only be reached by two, occasionally three, small and slow-moving elevators. Stairwell access was usually prohibited. In her opening address to the second trial’s jury, Carroccia said they may have noticed that sometimes the elevators “are less than reliable,” resulting in delays to the trial.
Protestors outside the courthouse in London on Friday.
Geoff Robins/THE CANADIAN PRESSPlayers and their families, lawyers, journalists, and members of the public — as well as dozens of prospective jurors during the jury-selection phase — who had piled into those elevators then found themselves squished into a small and humid hallway on the 14th floor until the courtroom opened. The only publicly accessible rooms were a courtroom at each end and two tiny bathrooms in the middle, where the accused players would have to line up on breaks along with everyone else.
The result of the elevator dilemma meant everyone was generally stuck on the 14th floor all day, except during the lunch break, which is longer than the other court recesses. Lawyers would try to find corners to huddle with their clients, while journalists would try to have telephone conversations with their editors without being overheard by potential jurors.
During jury selection for the second trial, everyone was kept in the courtroom for over 20 minutes at the start of the lunch break to ensure separation from almost 100 prospective jurors as they accessed the elevators. (Court staff finally relented and allowed people into the stairwell, to walk down 14 floors to the lobby.)
And given that there’s no cafeteria in the courthouse and limited food options in the area, it was common to see everyone involved in the case — lawyers, jurors, even the judge — at the nearby Covent Garden Market during the lunch break, where the encounter between Dudding and Juror No. 4 occurred.
Member of the public ‘intercepted’ while searching for complainant at the courthouse
During a break on the complainant’s first full day of cross-examination on May 6, court heard that someone had gone looking earlier in the week at the London courthouse for the complainant, who had been testifying via CCTV from a different room in the building. No reason was given for why they wanted to see her.
Cunningham said the person made it to the floor where the complainant was testifying, but was “intercepted” by London police Det. Lyndsey Ryan, the officer-in-charge of the case, and there was no contact with the complainant.
Carroccia said she believed she knew how this had happened: a lawyer from the firm Lerners, whom she didn’t identity, had just spoken on the radio about the case and specified the floor and room from which the complainant would be testifying. The location had been listed on the screen while the complainant testified, viewable to those in the courtroom as well as to those watching by Zoom; after the incident, court staff changed it to simply read: “CCTV.”
The judge threatened to revoke outside lawyers’ authorizations to view the trial by Zoom should it become an issue.
“We are trying to conduct a trial here,” Carroccia said. “Why people feel the need to insert themselves into our trial, I do not know.”
‘Those people should be arrested’: Concerns about jury interference
Protesters began showing up at the courthouse’s main entrance on May 2, the complainant’s first day of testimony, carrying signs that included “Believe Survivors” and chanting “Break the silence, stop the violence,” among other things, as the players, their lawyers, and jurors walked by them into the building.
By the complainant’s second day of testimony on May 5, the number of protesters had grown, and the judge and lawyers were worried it could be intimidating to the jury. In the morning, before jurors came into the courtroom, Carroccia suggested to the lawyers that she would have jurors brought into the building each day through a separate, non-public entrance.
But by the end of the court day, Carroccia had become aware that protesters now planned to show up at both the public and non-public entrances – a plan that the judge believed came about after someone watching the proceedings relayed information learned in court back to protest organizers. A deeply concerning development, she said.
“So I will ask the staff to notify the police, because if there’s any interference with the jurors, then those people should be arrested,” she said.
Cunningham, the Crown attorney, said from her understanding, there had been no efforts so far by the protesters to get in the faces of the jury.
“No, it was obviously for the attention of the cameras because it was attended from 8:30 to 10,” Carroccia said. “So once we’re in court, they’re not so interested, apparently.”
The judge told Cunningham she had no problem with protesters remaining at the main entrance, it’s that they now planned to be at the non-public entrance after it was discussed in court that jurors would enter through there. “That’s a totally different story,” she said.
Cunningham said intimidation of jurors should of course be avoided, but said, “There’s an important distinction between people simply being present with signs and any attempt to, you know — ” before she was cut off the by judge.
“I’m not so sure, Ms. Cunningham, when the signs are saying ‘We believe E.M.,’” Carroccia interjected, referring to the complainant’s initials.
The defence was also raising the fact that their clients, who were presumed innocent, had to walk by those protesters every morning, and that it was intimidating to them as well.
“If the tides were turned, I can’t even imagine the kind of uproar that would happen if this was an effort to attempt to intimidate the complainant,” said Foote’s lawyer, Julianna Greenspan.
In the end, the protesters decided to remain at the public entrance, and no one was at the separate entrance when the jury arrived the following morning.
“I checked myself,” Carroccia said.
But protesters continued to pose an issue when on May 7, the complainant’s fourth day of testimony, at least one of them made it past security into the courthouse with their sign and confronted one of the accused men and their lawyer, according to McLeod’s lawyer, David Humphrey. Carroccia met with the head of security over the lunch break, who “profusely” apologized and said it wouldn’t happen again.
She said police would be posted outside the main entrance to make sure those involved in the case could enter the courthouse without any problems.
Founder of False Allegations Canada runs afoul of the judge over smart glasses
Carroccia called out a man sitting in the public gallery on April 29 after another member of the public reported he appeared to be wearing smart glasses. The judge was concerned he had been recording the trial, which by that point was on its second day; surveillance footage of the complainant, whose identity is covered by a publication ban, had been shown in court with her face visible. Her full name had also been mentioned several times.
“So if you, sir, have glasses that are capable of recording and if you have been recording, then I will ask you to leave this courtroom and not come back,” the judge said.
More information about the man emerged the following day, when Cunningham reported that his name was Chris Fowler and he was the founder of False Allegations Canada, which describes itself online as an organization “dedicated to aiding individuals facing the complexities of false accusations.” He had been attending the trial daily with his partner and organization co-founder, Terri-Lynn.
Cunningham said a police investigation had been launched into the possible recording. She asked that the Fowlers remain excluded from the courtroom for the time being, and Carroccia agreed.
By the next day, the police had concluded their investigation with no charges laid, Formenton’s lawyer, Daniel Brown, told the judge. He asked that the Fowlers be allowed to return to the courtroom. Cunningham resisted the request, pointing to conflicting reports about whether Fowler had been recording, as well the nature of his organization.
“I don’t think I’d say the Crown’s concerns are completely allayed because no charges were laid,” she said.
But Carroccia allowed the couple back as long as Fowler didn’t wear the glasses. “It’s an open court, so as long as everyone who is present follows the orders of the court, then they can watch,” she said.
