Jordan
Almost five years ago now, we entered a new era when it came to how we address sexual assault, particularly when it is allegedly committed by men in positions of power or fame.
News Clip #1
Thousands of women are using two words on social media to identify themselves as survivors of sexual harassment and assault today. It’s #MeToo.
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Six accusers took the stand against Harvey Weinstein at his trial, and some 80 other women have made allegations of misconduct against him. Yesterday’s verdict was certainly a watershed moment for those involved in the MeToo movement. And many say this is just the beginning.
Jordan
At least that was the hope in 2017. In the years since, some of those accused and even convicted men have faced public backlash, cancellation, have landed in jail, but lots haven’t. Many were never charged or were, shall we say, lightly canceled and have made comebacks and have won awards. Over the past month, perhaps for the first time in this country since the Ghomeshi trial, Canada has reckoned with how its justice system holds up in the face of alleged sexual assault by a celebrity, disputed evidence, traumatized complainants, horrific accusations, and more importantly, how the courts treat all of that in real time with the jury watching. Almost five years since the Me Too movement, the Jacob Hoggard trial gave us a chance to see how far Canada has and hasn’t come. So today, we’ll take you inside that courtroom and get to the evidence the jury never heard.
I’m Jordan Heath-Rawlings. This is The Big Story. Alyshah Hasham is the crime and courts reporter for The Toronto Star. She covered the entirety of the Hoggard trial. Hello, Alicia.
Alyshah Hasham
Hi. How are you?
Jordan
I’m good. Thanks. I appreciate you joining us today. Maybe you could start with some context. Who is Jacob Hoggard? How big was his band? Like? What’s the background here?
Alyshah Hasham
Yeah. So Jacob Hoggard was the lead singer of a band called The Hedley. He actually sort of came to fame, I think, a little bit, in Canadian Idol. In the second season of Canadian Idol back in 2004, he came third, and then after that, formed a band, sort of a pop rock kind of band that took off. It was popular in Canada, I would say, particularly. They did tours across the country. Had this expanded, particularly of teenage girls. And so, yeah, up until sort of 2018, when allegations started to surface on Twitter, the band had been essentially functioning for more than a decade.
Jordan
So I want to be a little careful here for our listeners who want to be able to skip some of the disturbing details. But maybe first, without going into too much detail on the specifics, can you explain what allegations started coming out in 2018 and what he was ultimately charged with and facing trial for?
Alyshah Hasham
Right. So in 2018, variation of allegations started to surface and sort of range in nature. But ultimately, two women came forward to police at that time. And Hoggard was charged with sexual touching of a minor. So the girl was a teenager. She was 15 at the time, and then with sexual assault causing bodily harm, a charge that allegedly took place after she had turned 16. And so the difference between that is obviously the age of consent. And then he was also charged with sexual assault causing bodily harm in relation to a young woman who was in her twenties at the time. And all of those charges date back to 2016. And that’s what went to court in this trial.
Jordan
And now anybody who doesn’t want to hear this can skip forward a couple of minutes. But what were the allegations? What was the issue before the court? What were these encounters like as they were described in the courtroom?
Alyshah Hasham
Yeah, these are extremely graphic and disturbing and violent allegations. The first complainant who testified she was a teenage fan. She was actually a fan of Hoggard’s since she was a little girl. She went to several concerts. She was twelve when she actually met him for the first time and ended up getting he gave his cell phone number to her parents. And she ultimately ended up getting it when she was around 15. And they started messaging each other. She said he arranged for her to come to see a concert at the then ACC in Toronto with two friends. And she said that backstage, when they met, he grabbed her bum and tried to kiss her and she sort of tried to push him away. And so that’s the allegation that is the basis for the first charge charge of sexual touching of a minor. She was 15 at the time. He admitted that he knew she was 15 at the time. In fact, in his testimony in court, he said he wanted to be responsible and made sure that he knew her age.
And ultimately, when she turned 16, they started this messaging each other. It was romantic. It became increasingly sexual. And in September of 2016, there’s a dispute about why she was going to see him. She says she just thought like, this is great I’m going to be able to spend a day with the lead singer of my favourite band. At that point, she said she was in love with him because he had told her all these things about how he saw a future with her, that he wanted her to have his babies, that they were going to travel together, sort of this whole web of things. And again, like she had described, sort of this was her the lead singer of her favourite band.
He says that she came to the hotel room because the plan was for them to have sex. Regardless, she testified that in the hotel room, he raped her several times over the course of maybe an hour or so, maybe longer than that, and that she resisted that. She said no, that she told him he was hurting her, that she was crying. She sort of had this one description of seeing her face and her smeared makeup into the mirror that was in the hotel room. You could see her reflection during this. And it was just extremely, just her account was just extremely disturbing. And she said that she formulated a plan so she could leave by saying work was calling her in early. He says that never happened and that the entire encounter was entirely consensual, but that he cut sort of their date a little bit short and sent her home early after they had finished having sex.
And this is the second complainant who testified a little bit different. She was a young woman in Ottawa in her early 20s. She matched with Hoggard on Tinder when he was in town playing We Day with Hedley, and they arranged to meet not too long after that. She would come from Ottawa to Toronto, and they’d also have been exchanging sexual messages. And then the plan was to have sex in this hotel room. But when she got into the hotel room, ultimately she said he again violently and immediately once they sort of enter the second hotel room, I guess they had changed hotel rooms. He violently raped her again several times and held her down. She cried. She said no, she told him to stop.
Both women testified about bleeding, about feeling that they had been injured, about bruising, and sort of feeling extremely traumatized in the wake of what they testified about. So the jury heard essentially just did some extremely disturbing things. And again, Hoggard testified he actually testified he didn’t really remember these encounters very clearly because he said he’d have a number of casual sex encounters. That’s sort of what his life was like. But he maintained firmly that they were both consenting and that they were enjoying themselves and that he had no doubt that they were consenting.
Jordan
Thanks for sharing those details. I know that can’t have been easy to recite. That was his defence then, that it was consensual. And he did this a lot and they were participating. Just to make sure I’m clear.
Alyshah Hasham
Yeah. Actually, one thing I should mention that was important in this case was sort of the Crown won this unusual application, called a similar fact application. And that means normally a jury has to think about or a judge has to think about each charge separately on its own. But the Crown won this unusual application that allows them to be able to tell the jury, look at both these accounts and look at the striking similarities between them. And could it defy coincidence that two women who have said they don’t know each other, that they’ve never spoken before tell such similar stories about or give such similar accounts about what happened in these hotel rooms? And so there’s a couple of things that involve spitting, that involve sort of restriction of their ability to breathe. Both women sort of gave this really powerful description of Hoggard, changing from a really sort of nice, sweet guy–that was the person they were expecting in the hotel room. And instead he switched to, the teenage complainant had described him as turning into a psychopath.
The Ottawa woman said his eyes became so scary, he just completely flipped. And then at the end of the encounter, he switched back into sort of this like, I hope you had a great time, I’d love to see you again. So there were similarities in the accounts that they gave, and the judge allowed this application, and so that went to the jury as well. And that’s quite unusual again in a case. And that’s sort of why both women testify together in the same trial. And the defence that Hoggard gave to that is that, well, these are my sexual preferences. And so that can be explained by we had consensually done some of those things.
Jordan
I will come back to that in a little bit because I do want to talk about the similarities. But first, I understand there was also a bunch of stuff, as it usually is, maybe, but a bunch of stuff that the jury did not hear during the trial. What wasn’t allowed to be submitted that you found significant that you couldn’t talk about until the jury was out?
Alyshah Hasham
Yeah, there were a number of things. Perhaps a key one was that Hoggard, in fact, faces another sexual assault causing bodily harm charge that is not part of his trial. He was charged at March of this year. And the allegations do bear some similarity to the allegations in this trial. But there wasn’t enough time to sort of put it all together to be in one case. And Hoggard had actually sought to have the trial separated so that there would be different trials for each complainant because there was a concern that, particularly the allegations of the teen complainant, given her age, given his admission that he was sort of making sexual advances towards her when she was 15, that would be just so prejudicial for a jury to hear. And they lost that application. The trial went ahead with the two complaints testifying together. But another really important thing was a debate about the introduction of this surprise phone call that Hoggard had secretly recorded of the Ottawa complainant.
In 2018–some people have connected this sort of after the Jian Ghomeshi, but it was also sort of something that had been in the works for a long time. And then the Commission had found this to be an area that was an issue. The law changed to allow two things. One is that there should sort of be an advance hearing in advance of a trial about private records in the possession of an accused person and a sexual assault trial that deal with the evidence. That issue that they might want to introduce in the trial often like records pertaining to the complainant. So it could be like things like text messages or phone call. It could be medical records. It could be extremely personal things that might be in the possession of an accused person. And the idea is that there needs to be a hearing to discuss whether it’s appropriate to introduce that evidence at trial and that the complaint that should be able to have her own lawyer make submissions about whether this is evidence that should be allowed in court. There’s a process that’s a little bit complicated, and it has been extremely controversial. And, in fact, the Supreme Court of Canada is about to weigh in on whether they think that these changes are constitutional. And again, it’s a really hotly contested area because for the defence, they’re saying you can’t make a defence if you can’t essentially surprise a witness on the stand in front of the judge of the jury with something that they would argue contradicts them. If you give this information to that complaint in advance, she can change her story. She can come up with answers that will explain those communications. You can’t sort of essentially catch someone in, quote, unquote, a lie.
But the flip side of that is these communications can be intensely personal and often may have nothing to do with the case or may be so prejudicial in themselves or harmful to complainants. And potentially one of the reasons, again, we know that most sexual assaults are still go unreported. Right. So all of that came to be illustrated in this trial because Hoggard secretly recorded a phone call between him and the Ottawa complaint that took place in the days shortly after their encounter in the hotel room. Emotional phone call. It’s 50 minutes long. And in the phone call, the complainant, she says she’s trying to get an apology from him for how he treated her. She talks about him pushing her. She was saying, no, he’s really calm. She says he’s not, he’s scripted, like he’s been talking to a lawyer. And he later did testify that he, in fact, had talked to a lawyer. Right. And she had said she didn’t remember. She said the only phone call initially intensified. The only phone call that they had was 30 seconds.
And so the defence was like, wanted to bring this phone call in to say, well, you didn’t remember this phone call you’re lying about, or you can’t trust her memory. Then this happened outside the presence of the jury, I should say. So the jury didn’t hear the initial part of this. And the judge was livid because she said, this is exactly the kind of record that needs to be disclosed in advance. And while the complaint now we’re at a point where the complaint is in cross examination. She’s from out of town, so she’s staying in a hotel room. They kept having to delay, like the end of her testimony. She kept having to stay longer. The Crown pointed out like, now you’re sort of putting her in a position where she can either try and finish this extremely difficult experience of cross examination or have a whole hearing where she might need to get a lawyer, where it could take a long time. And she didn’t have, again, that advance ability to think about her situation and make arguments. The Crown didn’t either. And so ultimately the call was allowed.
But the judge said it would be flat out cruel to play this again, very sort of intense phone call to her for the first time in front of the jury. So she was allowed to hear it privately while being observed by a police officer to take notes in case she said something. And then not very long after that, the call was played to her in front of the jury. And I got to tell you, I’ve covered a lot of trials. And her reaction to hearing this phone call being played in court, she was crying, she was shaking. It was just one of the most excruciatingly, horrible sort of 20 minutes in a courtroom that I’ve ever witnessed. And the defence had their views about why it was like then the Crown argued about why she responded like that. But at one point, the judge asked to stop the call from being played and told the complainant, you don’t have to sit here and suffer. And it was just this really human, sort of empathetic moment of just like this is so awful. And the jury could see all of that. And you wonder how that fact into their decision making later because this was the count that he was ultimately found guilty on. But yeah, that was really sort of a moment that not only was just extremely important, I think, for the trial, but also the process that complaints go through and ultimately goes to the heart of what is a really contested area of the law that people have said has had a huge implication on how sexual assaults are prosecuted and tried in Canada.
Jordan
I do want to get to the verdicts in just 1 second, but because you touched on it, what was the atmosphere throughout the trial in the courtroom like? I mean, having read your reporting and given what you sort of just described, it must have been really tough at times.
Alyshah Hasham
Yeah. It was obviously very difficult testimony to listen to from a courtroom perspective. The pandemic has changed some things. And so the courtroom itself wasn’t very full. There was an ability for people to watch on Zoom. And so you sort of had just a handful of people really actually sitting in court watching this, mostly media, Hoggard’s wife as well, was there. But yeah, it was a very emotional trial, and I think that was just very apparent throughout.
Jordan
Tell me about the verdicts now. What were they and how long did it take to get them? I understand the jury had a ton of questions.
Alyshah Hasham
Yeah. So they did have a lot of questions. So the jury went out sort of on Tuesday afternoon after the judge sort of gave them this long explanation about the law and how it works and how they can apply it. And they almost immediately came back with some initial questions that sort of surprised everybody because there weren’t really issues in the case. Could you say that there was like a power dynamic or a relationship of trust between Hoggard and the teen complainant or either complainant, which is something that we see in cases involving sort of teachers or coaches, police officers–that raises the age of consent to 18 in those cases rather than 16. That was not something that was argued in this case. And the judge and the Crown and everyone agreed, no, that’s not an issue in this case. There’s no basis in law for that.
They deliberated for six days, and they came back twice during that time to say that they were deadlocked on some counts. And we believe, it’s impossible to know for sure because jury deliberations in Canada are secret. No one is allowed to disclose them. And they did not sort of indicate what exactly they were thinking and their questions. We believe that they’re the counts related to the sexual assault causing bodily harm charges, the charges related to the alleged rapes, because they then asked to hear back, essentially all the testimony from both complainants about those specific allegations and several Hoggard’s testimony as well, and then ask questions about how they could sort of assess this evidence. It sounds like they were struggling, at least some of the jurors were struggling with how to assess the complainant’s of state of mind at the time, which is really the central question. Was she in the state of mind where she was consenting, and how you do that while not relying on sort of myths and stereotypes about how a quote unquote, ideal victim would respond or how these myths that we have about if you’re being sexually assaulted, of course, you would call the police or you would run away or you would scream or whatever, right. Those are the Crown, in fact, called an expert witness to sort of explain that people respond to trauma in different ways. And so you could freeze you might not be thinking super rationally. Right. The way that you might expect someone to respond. Just keep all of that in mind while assessing the evidence. Each time they were done, the judge urged them to continue to deliberate, which is something the Crown and the defence also agreed with. And finally on Sunday night, sort of after six days, they came back with their verdict.
Jordan
And what were those?
Alyshah Hasham
They found Hoggard not guilty on the charges related to the teen complainant, which were the charges that were read out first in court, and sort of because of the similar fact application that I talked about before, there is this sense that, again, unlike other cases, that the charges are all linked together in some way. So to have the jury sort of stand up and go not guilty on the charge related to the sexual touching when she was a minor, not guilty on the sexual assault causing bodily harm, I think you could see definitely from Hoggard’s wife’s face that she was hopeful. And it was, I think, quite shocking when the jury then said guilty on the sexual assault causing bodily harm charge related to the Ottawa complainant. And I just say that because, again, it seemed from the trial that these charges were so closely linked together.
Jordan
Yeah. That’s my next question.
Alyshah Hasham
I think it’s a question that everybody had as soon as the verdict happened is how is this possible? Because of the close linking here. But this is how the judge very simply explained the process for the jurors to go through. So basically, first you sort of look at Hoggard’s evidence. Do you believe him? If you believe him, then you would acquit. And even if you don’t believe him, totally, but you’re sort of less than reasonable doubt by his testimony because, of course, he testified in this case, then he also wouldn’t meet the reasonable doubt standard. So you would also acquit. But then even if you don’t believe him, the jury would still have to look carefully at the complainants evidence to see if they could basically trust that beyond a reasonable, or rely on that, beyond a reasonable doubt to place a conviction. So there’s this sort of like process, and you could say, looking at the verdicts that they obviously didn’t believe Hoggard when it came to the auto complainant, that this encounter was consensual. And so you could say it’s maybe hard to believe how they would have believed him in relation to the other complainants. But you could also look and see, OK, were there inconsistencies or things that were unreliable in her memory of the teen complaint, that they ultimately couldn’t convict him because the reasonable doubt standard is high. And there certainly were some inconsistencies in her evidence that the jury asked questions about and wanted to hear testimony about a little bit more.
So you could speculate again, we can’t know, but you could speculate that certainly the fact that they were deadlocked means that some jurors did at one point want to convict on those charges or at least on a sexual assault causing bodily harm charge related to the team complained. Otherwise, there wouldn’t have been this sort of long agonizing deliberation. And the other thing that’s important to know is that juries don’t have to agree on how they get to a verdict. So some jurors could have potentially said, okay, well, we don’t believe this complaint has evidence. We think she was lying. But it’s possible that other jurors believed her, but ultimately just felt maybe that they couldn’t totally rely on her memory or on her credibility. They were just left with that little bit of reasonable doubt.
The other thing that’s important to say about this is also, just like jurors, they don’t give reasons for their decisions, so we don’t know what factored into their decision making. Did they do something inappropriate by thinking about the kinds of myths and stereotypes that they were warned not to? The teen complainant was really poised and really composed in her testimony versus the Ottawa complaint, who was very emotional. Did that play a role in their decision making? The other sort of key thing, I think, was that we had this phone call that was in the Ottawa complainants case that sort of showed how upset she was at that time. So you have this really compelling piece of evidence that we didn’t have in the other complainants case. So they’re not inconsistent verdicts. There are ways to interpret them. And for the judges purposes, though, a finding of not guilty means she can’t really do anything now with the team complainants evidence that sentencing. She’s only going to sentence him on the Ottawa complainants allegations, is going to make factual findings about what happened in the hotel room and sentence accordingly. She has said he’s likely facing a significant period of jail time.
The last thing I’ll say about this is that, going forward, as I said, he’s facing another charge. And this finding means that the teen complaints evidence can’t be used in that future trial for another similar fact application. But the Ottawa complainant’s evidence could, so at any future trial, there continues to be the possibility that there will be the ability to use the idea that there’s sort of a pattern and offending to go before a jury. But that’s all speculation because there’s still a long way to go before any of that happens.
Jordan
And so that’s what’s next. He’s going to be sentenced and then he’s going to face another trial.
Alyshah Hasham
Yes. And there will also be an appeal. It’s almost certain that there will be an appeal. There could be an appeal by an appeal by the defence of the conviction. There could potentially be a cross appeal by the Crown of the Acquittal, too. And then we have this sort of pending, this is the Supreme Court of Canada ruling about the records issue, and all of this is kind of hovering over this trial. So there’s a lot that could change before the trial for this other sort of pending charge even begins. A lot still to happen.
Jordan
Alyshah, thank you so much for walking us through this.
Alyshah Hasham
It was my pleasure.
Jordan
Alyshah Hasham of The Toronto Star. That was The Big Story.
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Thanks for listening. I’m Jordan Heath-Rawlings. We’ll talk tomorrow.
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