This is what jurors weren't allowed to hear in Jacob Hoggard's sex-assault trial

Jurors have begun their deliberations in the sexual assault trial of Canadian musician Jacob Hoggard, lead singer of the band Hedley. Here is some of the information they were barred from hearing during trial in order to protect their impartiality.

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Hoggard facing a new charge

Hoggard was charged in March with sexual assault causing bodily harm against another complainant in an incident alleged to have taken place in Kirkland Lake, Ont., on July 25, 2016.

The case was briefly before a court in nearby Haileybury, Ont., last Thursday and is set to return on Aug. 4.

Hoggard's lawyer, Megan Savard, said Tuesday her client is innocent and denies the new allegation, and that he will plead not guilty. She declined to comment further as the case is before the courts.

The identity of the complainant in that case is also protected under a publication ban.

Hedley played the Kirkland Lake Homecoming festival on June 24, 2016.

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Online allegations surrounding Hoggard

Neither lawyers nor witnesses in the trial could allude in front of the jury to various anonymous allegations about Hoggard that emerged online before his arrest in 2018.

In the second week of trial, defence lawyers asked the court to declare a mistrial after the second complainant briefly referenced other allegations.

The complainant testified that she decided to report her encounter with Hoggard to police after seeing an article online regarding an investigation into allegations of sexual assault involving the singer. She was immediately cut off by prosecutors before she could elaborate.

In the absence of the jury, defence lawyer Savard argued the complainant's words had caused irreparable damage.

Ontario Superior Court Justice Gillian Roberts found the second complainant's brief answer would not "fatally wound" the trial if jurors were given a proper corrective instruction.

She then told jurors there was no evidence of allegations outside those of the two complainants, adding they "must not speculate" on the matter.

The allegations that circulated online in 2018 have not been verified by The Canadian Press, nor have they been tested in court.

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Former Hedley drummer gave police masturbation video

Prosecutors sought to call Hedley's former drummer, Chris Crippin, to testify that Hoggard at one point sent him a video of himself masturbating in an airplane bathroom.

In pre-trial motions heard last year, Crippin -- who was fired from the band in 2016 -- said he did not consent to receiving the video, but kept it and eventually turned it in to police.

Crippin also said Hoggard, with whom he was on bad terms, had shared details of his sexual encounters with women. The drummer alleged that at one point, he suggested Hoggard was into degradation, and the singer agreed. However, he said there was no indication that any of the acts Hoggard described were not consensual.

Roberts ruled his evidence inadmissible. The judge said that if jurors concluded Hoggard sent the video knowing Crippin did not want to receive it, there was a risk they would find the musician is "the kind of person prepared to inflict his sexuality on others, regardless of their wishes," which would have a "significant" prejudicial effect.

Roberts also found the degradation comment carried a "real risk" that jurors would infer Hoggard is more likely to commit sexual assault because he likes to degrade women.

A description of the masturbation video was included in an agreed statement of facts that was presented during trial, but there was no mention of how police obtained it.

Both complainants testified during trial that Hoggard sent them a video of himself masturbating.

Crippin's account has not been tested in court.

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Evidence of grooming

Prosecutors were barred from using what the judge deemed"highly prejudicial labels" such as grooming, luring and possession of child pornography in front of the jury while discussing Hoggard's interactions with the teenage complainant.

Before trial, the defence sought to have some aspects of the teenage complainant's expected evidence excluded from trial, including that she exchanged messages with Hoggard in which he "cultivated a trusting romantic relationship" and that they exchanged sexual messages and nude photos.

Defence lawyers argued that evidence could be misused by jurors to infer that Hoggard is more likely to have committed sexual assault.

The Crown said Hoggard's interactions with both complainants leading up to the alleged sexual assaults were "essential to the narrative" of how they came to be in his hotel room.

The judge ruled the evidence admissible but said jurors couldn't be told that the teen complainant's young age made her allegations more serious or that some of those alleged interactions, if true, would also be crimes.

The defence was also given permission to cross-examine the complainants on any evidence related to the texts raised by the Crown without bringing a separate application -- a part of the ruling that came under scrutiny when the defence sought to cross-examine the second complainant on the content of some of those texts mid-trial.

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Defence sought to have the cases tried separately

Hoggard's lawyers twice sought to have the case split into separate trials, arguing the evidence expected from the teenage complainant could affect the jury's assessment of the evidence regarding the second complainant.

In an initial application in 2020, the defence argued the "bad character evidence" related to the allegations involving the teen complainant could make jurors more inclined to punish the singer because he seems to be a "bad person."

Roberts found that while jurors might "think very ill" of Hoggard if they believed he groped the teen and sent her explicit texts, they would not assume he is a rapist based on that evidence.

"I am satisfied that the jury will understand that what happened in each hotel room is the focus of the trial," the judge wrote in her ruling.

She also found that the existence of a viable similar fact application -- a process through which the Crown argues jurors should be able to consider similarities in the two complainants' accounts -- supported a joint trial.

The defence again sought to sever the two cases in February, arguing the similar fact application was no longer viable since Hoggard planned to testify and "acknowledge that particular acts described by both complainants were part of his sexual repertoire at the time of the allegations."

Roberts found Hoggard's planned testimony would not undermine the viability of the similar fact application and upheld her initial decision to hold a joint trial, with the similar fact application to be heard later.

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Similarities between the two complainants' accounts

The Crown had to make an application before it could urge the jury to consider the similarities between the two complainants' accounts as a pattern of behaviour.

In the application, which took place after prosecutors presented their evidence but before the defence began to do so, Crown attorney Jill Witkin noted both accounts include sexual acts that are far from generic, as well as several contextual similarities in how Hoggard communicated with the complainants before and after the encounters.

Witkin argued jurors should be allowed to consider how improbable it is that two women who have never spoken would have concocted such similar allegations.

Savard argued that there was a reasonable, innocent explanation for the similarities, namely that many of those acts -- such as spitting, slapping, name-calling and urination -- were part of Hoggard's sexual repertoire. As a result, she said, the similarities are no longer significant and should not be given weight.

The judge ruled that jurors should be allowed to consider similarities and differences between the allegations, and it should be up to them to decide whether they show "such a distinctive pattern of conduct" that it would "defy coincidence."

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Texts and call between Hoggard and the complainants

The admissibility of certain text messages between Hoggard and the complainants was ruled on before the trial, but the issue unexpectedly re-emerged as the defence cross-examined the second complainant.

The Crown was given permission before trial to introduce some evidence related to text messages between Hoggard and the two complainants. The Crown said the defence would be allowed to cross-examine the complainants on any evidence prosecutors brought related to the messages without making a separate application that would otherwise be required by law, and the judge agreed.

Some of the messages Hoggard exchanged with the younger complainant were shown to the court, but the Crown did not show any of the messages he exchanged with the second complainant. The second complainant testified, however, that some messages were of a sexual nature.

In the middle of cross-examining the second complainant, the defence sought to introduce a recording of a phone call she had with Hoggard shortly after their encounter and to question her on the contents of specific sexual texts.

Under law, evidence of a complainant's past sexual history, which can include sexual texts, is inadmissible unless there is an application to show it will only be used for limited, specific purposes. Such evidence cannot be used to suggest a complainant was more likely to consent or should not be believed -- what is commonly known as the "twin myths."

As well, in 2018, the federal government changed the rules surrounding the use of private records related to a complainant but in the possession of the accused -- including texts, letters or photos -- in sexual assault trials. The new rules require the defence to apply in advance to introduce such materials, and grant complainants the right to participate in that hearing.

The Crown argued the call constitutes a private record, because it was a private conversation recorded without the complainant's knowledge.

Witkin said the defence should have brought an application earlier to determine whether the call could be used, and waiting until mid-trial effectively forces the complainant to choose between exercising her right to participate in a hearing or wrapping up her testimony, since witnesses are not allowed to discuss their evidence with anyone once cross-examination begins.

The defence said it only decided to use the call the previous day based on the second complainant's answers during cross-examination, and therefore could not have made an application earlier.

Roberts ruled the complainant had no reasonable expectation of privacy when it came to the call, meaning it could be used without first holding a hearing. But she said it would also be in the interest of justice to allow the complainant to hear the recording privately before it was played for the jury.

As for the texts, Savard said she wanted to ask the second complainant four questions related to specific words and phrases allegedly used in those messages, arguing it was important to establish a narrative and explain why Hoggard felt comfortable initiating certain acts.

The judge asked for written submissions on the issue, saying the stakes were "too high" and she did not want cross-examination to turn into "an inquiry into (the second complainant's) general preferences."

"I'm quite uncomfortable with this," Roberts said. "Doing this on the fly is exactly what the legislation is trying to avoid."

Roberts chastised Savard for not raising the issue before trial, saying the evidence the defence sought to raise in cross-examination went beyond what the Crown had brought and therefore required a separate application.

Savard argued she believed the pre-trial ruling gave her permission to cross-examine on anything related to the texts.

The trial was halted for a day to make time for legal arguments. The judge acknowledged her pre-trial ruling opened the door to some questioning on the texts, which she characterized as a mistake on her part. But she said there must be limits on what the complainant could be asked.

Roberts noted no records of the texts were preserved, and the questions proposed were based on Hoggard's recollection of the messages.

In the arguments, the defence said the texts would instead be used to highlight the difference between Hoggard's conversations -- and relationships -- with each complainant, as a counterpoint to the Crown's emphasis on the similarities.

The Crown argued it could "only taint a jury" to hear the specifics of the messages. Witkin said that if the goal was to distinguish the two relationships, the defence could simply ask if they had "explicit discussions."

Roberts ruled the defence could ask the second complainant if she had explicit conversations with Hoggard but could not include "gratuitous details."

This report by The Canadian Press was first published May 31, 2022.