A second jury has been dismissed and the case will be proceeding by judge alone after a juror complained about the conduct of two defence lawyers at the sexual assault trial of five players from Canada’s 2018 world junior hockey team.  

Ontario Superior Court of Justice Maria Carroccia discharged the jury without giving them reasons Friday morning, a decision made following legal arguments by the Crown and defence held without the presence of the jury on Thursday afternoon.  

“I know that you have invested four weeks in this trial. You have the thanks of myself, court staff and counsel,” Carroccia told the jury shortly after 10 a.m. “You are free to go.”  

With the jury now dismissed from the trial, the details of those arguments and others that unfolded during the trial in the absence of the jury can be reported on, including the reason the jurors were sent home Friday and the circumstances surrounding the mistrial called just days into the case that triggered the selection of a new jury.  

The jury was dismissed Friday after one juror, in a letter to the judge Thursday, complained they and “multiple” other jurors felt “judged” and “made fun of” by two defence counsel.  

The juror alleged that the defence counsel for Alex Formenton watched and whispered to each other when the jury entered the courtroom each day. The complaint alleged the two laughed with each other as if they were discussing the appearance of the jurors.  

The juror claimed the conduct was unprofessional and unacceptable. Formenton’s lawyers denied the allegations, Carroccia said in her decision.  

In a decision delivered Friday morning without the presence of the jury, Carroccia said “negative feelings about counsel might impact the jury’s perception of the accused” and that the “fairness of this trial has been compromised.”  

Lawyers for all five accused consented to proceeding with a judge-alone trial.

Michael McLeod, 27, Carter Hart, 26, Formenton, 25, Dillon Dube, 26, and Cal Foote, 26, all of whom went on to pro careers including in the National Hockey League, have each pleaded not guilty to sexual assault stemming from events at the Delta Armouries hotel June 18 and 19, 2018, when the world championship team reunited in London for a Hockey Canada gala.  

McLeod has pleaded not guilty to a second sexual assault count for being a party to the offence.  

The Crown has argued that the woman, then 20, went to the hotel with McLeod for consensual sex after meeting him at Jack’s bar on Richmond Row. After the sex and unbeknownst to her, McLeod invited the men to the room for “a three-way.”  

The woman, whose name is protected by a publication ban, concluded her testimony at the trial earlier this week. During days of gruelling cross-examination, defence counsel suggested the woman was the aggressor, who wanted McLeod to invite the other men to the room for “a wild night.”  

This is the second time the trial has been faced with unanticipated roadblocks. Just four days in, the judge declared a mistrial and dismissed the 14 jurors hearing the case without giving reasons and ordered a new jury be selected.  

Details of the circumstances that led to the first mistrial can now be disclosed, with the trial now proceeding by judge alone.  

The first panel of jurors was instructed not to speak with anyone involved in the trial. During a lunch break at the Covent Garden Market, one juror alleged a defence lawyer spoke to them while they were waiting in a line. 

The juror told another juror about the alleged interaction, who then spread the details around to other members of the jury. The defence lawyer denied there was an interaction.  

Carroccia declared a mistrial and a new jury was selected.  

The Crown on Friday concluded its questioning of Tyler Steenbergen, who began testifying at the trial of five of his former teammates earlier in the week. 

Anna Zhang, defence counsel for McLeod, began her cross-examination of Steenbergen Friday afternoon, taking him through the whole evening from Jack’s to McLeod’s second-floor room at the Delta Armouries.  

Steenbergen confirmed it appeared that the woman was expressing an interest in McLeod when he crossed paths with the two of them at Jack’s. Under questioning from Zhang, Steenbergen said he did not notice anything unusual about the woman’s demeanour at the bar.  

During cross-examination, Steenbergen said he went to McLeod’s room because he was told someone had ordered food there when a naked woman emerged from the bathroom, to his surprise.  

He said the woman started masturbating and was not instructed to do so by others. She was urging the men in the room to have sex with her, he said during his cross-examination by Zhang.  

Steenbergen said he felt uncomfortable and there was some awkward laughing. “I didn’t know how to react to the situation that was in front of me,” he said.  

He said he tried to avoid paying attention to what was happening and took his opportunity to leave when the woman, who was between him and the door on the floor, went to the bathroom.  

During cross-examination by Riaz Sayani, a lawyer for Hart, Steenbergen said it appeared the brief oral sex encounter between the woman and Hart was consensual and that she was into it.  

Steenbergen said the oral sex between Hart and the woman lasted between 30 seconds to a a minute and that Hart ended it by backing away and pulling up his own pants.  

The trial continues Tuesday.  

– with files by Jane Sims, The London Free Press

jbieman@postmedia.com