As the trial of five former Canadian world junior hockey players nears its conclusion, legal experts say the courtroom use of cellphone videos showing the complainant saying she was “OK” with what happened highlights broader misconceptions about consent under Canadian law.
The case, involving Michael McLeod, Carter Hart, Alex Formenton, Dillon Dube, and Callan Foote, centers on an alleged sexual assault that took place in a London, Ontario hotel room in June 2018. All five men have pleaded not guilty. McLeod faces an additional charge of being a party to the offence. Ontario Superior Court Justice Maria Carroccia is expected to deliver her ruling on Thursday.
Two short cellphone clips presented during the trial show the complainant stating that “it was all consensual” and that she was “OK with this.” The Crown has dismissed these recordings as performative and non-substantive, arguing that the complainant felt pressured and lacked real agency in the situation. Prosecutors emphasized that consent must be freely given, specific to each act, and clearly communicated at the time it occurs.
University of Ottawa law professor Daphne Gilbert, who specializes in sexual violence in sport, said the videos are not strong indicators of legal consent. “Legally speaking, they have very little relevance,” she said. “There’s no such thing as advance consent or after-the-fact consent. Consent has to be ongoing and specific.”
Lisa Dufraimont, a York University law professor, noted that such videos are often considered hearsay unless the complainant testifies under oath that they consented at the time. Still, she added that videos might be used to assess the complainant’s demeanor, level of intoxication, or emotional state, but not as definitive proof of consent.
During the trial, Crown prosecutor Meaghan Cunningham told the court that one of the videos was filmed after the alleged acts took place. “The recording of that video is not getting her consent to anything,” she said, emphasizing that the law requires clear, moment-to-moment communication of consent for each act.
Only Hart testified in his own defence. Court also heard or viewed police interviews with McLeod, Formenton, and Dube from 2018. In his interview, McLeod said he recorded the video out of concern that “something like this might happen.” Hart testified that recording so-called “consent videos” is not uncommon among athletes.
Gilbert, who works on consent education initiatives in Canadian schools, said professional hockey still lags behind other sectors in addressing sexual misconduct and promoting clear understanding of consent. “Consent should be enthusiastic, affirmative, ongoing, coherent,” she said. “Yes means yes.”
She added that many people still don’t fully understand what Canadian law requires. “If you approach consent with that lens, you begin to see why those videos don’t mean much legally.”