And now ?
This is probably the question that everyone who has followed this case from the beginning is asking. Now that the charges have been filed by the police – which is the norm in Ontario, while it is the Director of Criminal and Penal Prosecutions who is responsible for them in Quebec – a 30-month countdown begins .
Thirty months is the time considered reasonable for a criminal case to follow its course before the courts before the defendant can invoke the Jordan judgment, therefore a processing time considered excessive. Is it premature to talk about it? Not really. The Crown has warned that it will file “substantial” evidence, which the defense will now have to study. And the Ontario justice system, like in Quebec, is significantly behind schedule in processing its cases.
The ball is in the court of the defense, which must decide its strategy based on the evidence weighing on the five accused.
The London Court will consider the case again on April 30.
Why article 271?
Professor Simon Roy, of the University of Sherbrooke, takes the trouble to underline the nature of the charge filed against each of the defendants. We in fact chose to invoke section 271 of the Criminal Code (sexual assault) rather than section 272, which defines group assault. This despite there being five defendants and the assault, according to a civil lawsuit filed in 2022, appearing to have been perpetrated by several people.
PHOTOS MATT SLOCUM, NOAH K. MURRAY, PAUL SANCYA, COREY SIPKIN, CANADIAN PRESS ARCHIVES
The five defendants, from left: Alex Formenton, Cal Foote, Michael McLeod, Dillon Dube and Carter Hart
Article 271 provides for a maximum prison sentence of 10 years, and not 14 years like article 272. Consequently, according to the rules in force, “the Crown does not put itself in the way of a preliminary investigation”, underlines Mr. Roy.
This step would allow the defense to question Crown witnesses, and therefore the alleged victim. “In matters of sexual violence, you will have understood that it can be traumatic to be questioned and cross-examined during the preliminary investigation and at trial,” notes the professor.
How many trials?
Defendants and their attorneys will quickly decide whether they want to seek one, two, three, four or five trials. A concerted defense would notably allow defendants to remain silent in court, and therefore not to testify.
The angle of the defense will also dictate the choice. A common defense could address the facts put forward by the victim. “But if they plead consent, you have to testify. And if you testify, you submit to cross-examination. That’s less fun,” says Simon Roy.
Furthermore, without speculating on the nature of the evidence, it cannot be excluded that it does not overwhelm the accused equally. “The danger of a five-person trial is being picked up because you are the boyfriend of the other four,” summarizes the researcher.
Separate trials would therefore allow each person to answer for their actions, and even to have other co-defendants testify. In return, the victim would have to testify several times.
However, even if the defendants requested separate trials, it is not assured that they would obtain them.
A jury or not?
Requesting a trial by jury or before a judge alone will also be part of the defense strategy.
After having gone through the evidence, made up of hundreds, even thousands of written pages as well as audio files, the defense lawyers will have to determine, again according to Professor Roy, “if they have a better chance in law than in facts , or no luck at all.”
If the evidence seems “more or less solid” in terms of facts, an attempt will be made to convince a jury that the accused did not commit an assault. In front of the jurors, we will also examine the victim more closely.
If the evidence seems more easily challengeable on legal grounds, then we will ask that a judge alone decide.
What pleas… and what penalties?
A priori, the lawyers of the five hockey players announced that their clients would plead not guilty. If this desire stands up to scrutiny of the evidence, a trial will proceed.
However, “if the evidence is very strong, even though they are very rich hockey players, it is not impossible that they will plead guilty,” says Simon Roy.
Recognizing guilt, “in criminal law, it demonstrates that the accused is aware of his crime”. His sentence could therefore be reduced, even more if this confession is delivered from the outset and not late in the process. The fact of having spared judicial resources and of having avoided the victim having to testify is also taken into account.
Furthermore, the spectrum of convictions is wide, in particular because of the very definition of sexual assault, which can include different gestures and behaviors. Never mind, since a group assault seems to be involved, Simon Roy would expect, in the event of a recognition or a guilty verdict, a prison sentence.