"Shows there was consent" - Toronto defense lawyer opines how NHLers accused in Hockey Canada scandal could build their case in court

Andrew Furgiuele is a Toronto defense lawyer who represented former OHL player Andrew Fritsch when he was charged with sexual assault in 2012. Furgiuele has recently given his advice on how the five NHLers accused in the sexual assault scandal can build their case in court.

Dillon Dube, Carter Hart, Michael McLeod, Cal Foote, and former NHLer Alex Formenton have all been charged by London Police with sexual assault.

Assistant Crown attorney Meaghan Cunningham has been assigned to lead the government’s effort to convict the NHLers. Cunningham will send an e-mail to their defense lawyers soon which will detail all of the evidence collected by police in London.

According to TSN, the defense lawyers will have access to transcripts and video recordings of all police interviews with E.M., the alleged victim in the case, as well as those with witnesses and the players themselves.

After all five members of the 2018 Team Canada World Junior gold medal team were charged, all of their defense lawyers said they would be pleading not guilty.

According to Furgiuele, who spoke to TSN, the big sticking point in court will be the video that one of the players recorded, where the girl may have given consent:

“I expect the Crown to argue that the woman was coerced to make the videos,” Furgiuele said. “When you hear her say, ‘I am so sober, that’s why I can’t do this right now,’ that is an odd thing for someone to say and the defense are going to have to address that.

"The defense will also argue that the video is clear evidence from that moment that shows there was consent.”

However, according to Canadian law, an unconscious person or someone who is intoxicated can't consent to sex.

A court date for Hockey Canada scandal may not happen until 2026

According to several lawyers who spoke to TSN, they believe a judge will set a trial date sometime in mid-to-late 2024, which will be for late 2025 or early 2026.

When the case does go to trial, Furgiuele believes the Crown will push for the players to be co-defendants in a single trial, which would allow the victim to only testify once, rather than five times.

Furgiuele believes the defense will push for it to be five different trials, so the victim has to testify five times, and he thinks the judge will deny that request.

The final thing Furgiuele and other lawyers expect the defense to do is hire crisis-management and public relations firms, as well as private investigators to explore E.M.’s background, searching her social media and employment history.

David Butt, a defense lawyer in Toronto, said to TSN.

"A defense team is always looking for ways to undermine the credibility of a complainant. If they are regularly on social media spewing falsehoods, that might help.

"If the person has a discipline history at their job for untrustworthy behavior, that could help.

"The defense would also seriously consider asking the judge to give them approval to obtain some private records like a complainant’s therapy records to look for inconsistencies in her statements. Even though most judges would not approve that request, the defense has an obligation to their clients to try.”

For now, London Police will hold a press conference on Monday to give an update on the case, but a court date is likely years away from happening.