Prosecuting the Hockey Canada Assault Case was Justified
WARNING: This post contains a depiction of sexual assault.
This week, all 5 former Hockey Canada players were found not guilty of sexual assault:
Many others have written excellent pieces about issues of consent, sexual assault cases, the bar for a guilty verdict, the impact on other women, etc. However, there is a particular narrative I thought is worth addressing: That bringing this case to trial was unjustified. I've seen a number of versions of this argument:
- The Crown forced this to trial because of public pressure
- The London Police Service pushed this in spite of no evidence because of public pressure and a new Chief wanting the press
- E.M. brought the case forward out of spite/vengeance
- Some other variety of these arguments indicating the goal was trial by public opinion where no evidence and no hope of a guilty verdict were present
I feel it is important to address these comments as they feed into a common trope around sexual assault that women use sexual assault accusations as a form of vengeance, and that courts are biased against men, leading to unjustified consequences of malicious prosecution. While we can always find one-off cases of bad actors or failures of justice, it is important to highlight this case is not such an example.
I would suggest that anyone reading this post, in the role of a crown prosecutor, would have been open to bringing the case to trial as well.
While most of the focus has been on E.M.'s testimony, arguing the case was unjustified denies the hard evidence that the police and prosecution were looking at. In particular, they had hard copy of a text from Brett Howden that describes a sexual assault. And they had admission that Howden was in the room. And they had admission from others that 'spanking' had occurred. This is the text message they had:
This message combined with E.M.'s statements that her consent was limited and persons and activities went beyond this consent, is by far enough evidence to allow the courts to consider and make the determination. I would argue the opposite of the narratives I noted above, presented with this it would be irresponsible for anyone to suggest the case not at least go to trial. Once the Crown had it from E.M. that she was willing to testify and knew the consequences of doing so, the choice was clear.
Therefore, I do not believe the facts align with the arguments that this case should not have happened. Ultimately, the text was ruled as inadmissible as hearsay which was a huge blow to the prosecution. However, they could not have known this would occur during the case and therefore made the right choice to prosecute with this evidence in hand. The perception that there was no good evidence is based on ignorance of the evidence available and the vagaries of people receiving news via social media chatter. If anyone says the case should not have proceeded, present them the text and ask what they would do with that evidence as police/prosecutor.
There is much to learn from this case, but presenting it as an example of sexual assault trials as vengeance is to re-write the historical fact of how this unfolded. While we can't possibly know the private motives of all parties, we have public fact of strong evidence. It was up to the court then to decide on consent.
