Two videos captured by cell phones in which she says that she agreed with what happened and that “everything was consensual” were presented in evidence during the trial of Michael McLeod, Carter HartAlex formed, Dillon Dubé and Callan Foote.
The five men have pleaded not guilty to a charge of sexual assault after a meeting in a hotel in London, Ontario, on the morning of June 19, 2018. Michael McLeod also pleaded not guilty to an additional accusation of participation in the offense.
On Thursday, the judge of the Upper Court of Ontario Maria Carroccia will return her verdict (new window) In this file in which consent is at the heart of the case.
Voluntary consent?
The prosecutors argued that the complainant did not voluntarily participate in the sexual acts that took place that evening and that the players did not take reasonable measures in order to obtain her consent.
The crown described the videos of the woman as “words in the air”. According to the prosecutors, the alleged victim had no choice but to say that he agreed when a group of men whom she did not know began to ask her to do things in a hotel room.
Defense lawyers, on the other hand, have repeatedly questioned the credibility of the complainant and her reliability as a witness. They believe that she participated actively in sexual acts and that she invented the allegations since she did not want to be held responsible for her actions that evening.
“Not very relevant”
Video statements like the clips shown in court do not necessarily represent consent, according to law professor Daphne Gilbert, from the University of Ottawa.
“Legally speaking, they are not very relevant, because consent must be obtained continuously and concomitant with sexual activities and you have to consent to all the things that arise,” said Professor Gilbert, who is carrying out research on sexual violence and abuse in Canadian sport.
“Prior consent does not exist, as is consent after the facts. It is not consensual because you said that “everything was consensual”, “she said.
The London courthouse, where the trial took place.
Photo: Canadian press / Nicole Osborne
Lisa Dufraimont, law professor at York University, says that this type of video could also be perceived as a form of hearsay since it does not contain any declaration called under oath in court.
“If the complainant comes at the helm during the trial and testifies that she consented at that time, it proves that she consented at that time,” says Lisa Dufraimont, who is researching the stake of proof in cases of sexual assault.
But she adds that videos can be used for other legal arguments, such as those who require a description of the complainant’s mood or the defendant at the time of the facts.
“If the video is filmed near the time of the alleged sexual assault, it could testify to the level of intoxication of a person or their emotional state, which could correspond or not to the emotional state as described later,” she said.
Not a form of consent, says the crown
During the trial, the crown argued that the videos do not prove that the complainant voluntarily consented to the alleged events.
“Video recording does not represent a form of consent. Everything had already happened, ”said the prosecutor Meaghan Cunningham Regarding the video in which the woman says that “everything was consensual”.
Only one of the accused, Carter Hartwas called to the bar (new window) during the trial. The court also heard and watched interviews by police with three other accused in 2018: Michael McLeod, Alex Formenton and Dillon Dubé.
Carter Hart is the only accused who testified during the trial.
Photo : Radio-Canada / Alexandra Newbould
People facing charges during a trial are not forced to testify and the defense does not need to present proof. It is up to the crown to prove the guilt of an individual beyond reasonable doubt.
During his interview with the police, in 2018, Michael McLeod told the detective that he had recorded one of the videos since he was “just worried that something like happening”.
At the helm, Carter Hart He testified that consent videos are not unusual for professional athletes.
Professor Gilbert, of the University of Ottawa, believes that Canada, in general, must do more to educate young people with regard to consent, particularly in sport.
Consent must be “enthusiastic, affirmative, continuous and coherent,” said the professor. “I don’t think people understand what law requires. If you understand this, as well as the appropriate consent approach, it’s easier to understand why these videos don’t mean much. ”
