The recent decision by Superior Court Justice Maria Carroccia to discharge the jurors in the sexual assault case against five former world junior hockey players has created significant ripples in the legal arena. The charges stem from an incident that allegedly took place in 2018 at a hotel in London, Ontario, following a Hockey Canada gala. The accused, Dillon Dubé, Cal Foote, Alex Formenton, Carter Hart, and Michael McLeod, all of whom have had careers in the NHL, have pleaded not guilty to the allegations.
This trial took a dramatic turn when Justice Carroccia announced that the proceedings would continue with her alone presiding over the case. The decision follows a juror’s note detailing concerns about perceived misconduct, specifically that two defense lawyers appeared to be whispering and laughing at jurors as they entered the courtroom. The lawyers, Dan Brown and Hilary Dudding, representing Formenton, have firmly denied these allegations. Nonetheless, Justice Carroccia concluded that the jury could no longer maintain impartiality, a crucial element in any legal proceeding, and subsequently discharged them.
Notably, this represents the second time this jury has been dismissed. A previous mistrial was called last month due to similar issues regarding the conduct of jurors and the lawyers involved. Such complications surrounding jury misconduct raise substantial concerns about the fairness and integrity of the entire legal process.
Deciding to Proceed with a Judge-Only Trial
Cassandra DeMelo, president of the London Criminal Lawyers’ Association, expressed her belief that Justice Carroccia’s decision to move forward with a judge-only trial was appropriate. She emphasized that the clear signs of disdain exhibited by the jurors toward the defense counsel would have compromised the trial’s integrity. “I don’t see how you could have continued with a jury after a comment like that about their alleged behavior,” DeMelo stated.
The Crown had initially suggested either holding a mistrial with a completely new jury or conducting an inquiry to explore whether the jurors held any biases against the defense. However, criminal defense attorney Laura Metcalfe argued that even if jurors were capable of putting aside their negative feelings, the likelihood of the accused receiving a fair trial would be diminished. “If the verdict is unfavorable, how those accused and their families can feel like they had a fair trial raises a lot of issues,” she pointed out.
Ultimately, the Crown agreed to the judge-alone trial, avoiding the trauma of re-exposing the complainant, known as E.M., to another round of testimony that could further traumatize her.
Potential Actions Against Defense Lawyers
The actions of the defense lawyers may not be over. The Law Society of Ontario governs the conduct of lawyers and paralegals in the province. Members of the public can file complaints about lawyer behavior; however, DeMelo noted that any such complaint would likely need to come from someone directly present during the incident. This could include jurors, other legal representatives in the courtroom, or the judge.
Metcalfe remains skeptical about whether the lawyers would face discipline. She asserted, “I would be shocked if what occurred here was ever something that should be the subject of discipline. Two senior counsels, who are officers of the court, are unlikely to mislead the court regarding their intentions.” This sentiment reflects a general belief in the integrity of legal practitioners, albeit one that must remain open to scrutiny.
Shifts in Legal Strategy
The shift to a judge-alone trial will likely prompt both the Crown and defense to revise their legal strategies. DeMelo noted that trials involving juries often require lawyers to break down complex points for laypersons, whereas a judge may be able to understand nuances more quickly. “With judges, you don’t necessarily have to belabor points; they can get to the heart of the matter much more efficiently,” she explained.
Moreover, the necessity to call certain witnesses could also be reevaluated. Defense attorneys may find that some witnesses previously considered important may no longer be needed, simplifying the trial’s scope. Metcalfe added that the defense’s closing arguments may also be more concise, omitting explanations that would ordinarily be required for a jury.
The Impact on Trial Length
One of the practical benefits of a judge-only trial is the potential for expedited proceedings. In jury trials, lawyers often need to pause the trial to discuss legal points that should not distract jurors. With a judge presiding, these interruptions are minimized, speeding up the overall process. As DeMelo pointed out, the absence of a jury will not only cut down on potential delays due to juror availability but will also save time during closing statements, as discussions have to be directly directed to the judge.
Furthermore, the need for a judge to provide jury instructions will be eliminated; this usually takes considerable time at the end of a trial as jurors prepare for deliberation. The change could significantly compress the timeline for concluding the trial and—most importantly—delivering a verdict.
