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Lack of Presumption of Innocence: The Jake Virtanen Allegations - Hayden Yaremko

Introduction

In the common law legal system, any person who is charged with an offence has the right “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal” as stated in Section 11(d) of The Canadian Charter and Rights of Freedoms.[1] This is also known as the presumption of innocence, which contributes to the legal framework that prevents unjust and wrongful convictions. Jake Virtanen, a National Hockey League player formerly with the Vancouver Canucks, was not unjustly or wrongfully convicted. However, when accused of sexual assault, he was faced with certain implications that may have severely affected his professional career. This blog will aim to discuss the legal proceedings of the British Columbia Supreme Court which have taken place within this sexual assault trial, and how the trial itself created a cause for further review in my opinion on how the lack of due process of “recognizing the importance of protecting the legal rights of those charged with criminal offences”[2] may have affected Virtanen’s future inside and outside of professional hockey.


Legal Proceeding

Jake Virtanen was accused of sexual assault from an incident that occurred at a downtown Vancouver hotel on September 26, 2017. The complainant, identified anonymously as MS in the trial due to the protection requirements of a publication ban, testified that Virtanen made unwanted physical advances and used his body weight to pin her on the bed to have non-consensual sexual intercourse. Virtanen maintains his position that MS did not ever tell him no, and that the encounter was all consensual as MS never pushed him away and was ultimately a willing participant[3]. Each side used additional facts and recollections of their memories of the night in question to strengthen their arguments. Very little corroborative evidence was presented by either side. The judge instructed the jury that if there was any reasonable doubt in the Crown’s case against Virtanen, an acquittal would be required[4]. The jury found Jake Virtanen not guilty on July 26, 2021. The complainant had also filed a civil lawsuit before the criminal proceedings, and a trial has not yet to be held for the civil case.


Credibility – The Deciding Factor

While Jake Virtanen was found not guilty, I am not writing this blog to endorse nor condemn him or his actions in any way or take a side on this criminal matter. I feel that only the two individuals who participated, willingly or unwillingly, in sexual conduct in the night of question truly know the correct facts to be applied to this case. While the court decided one way, this does not mean that MS was not sexually assaulted on the night of September 26, 2017. All this means was that the jury saw even the slightest amount of reasonable doubt that the defendant was not guilty, and an acquittal was required at that point. There is no doubt that the burden of proof favours the accused person or party, and that can be unfortunate, especially for victims of sexual abuse. It appears that during closing arguments, Virtanen was a “reasonable witness” and his testimony held up under cross-examination. Conversely, the complainant’s testimony had some inconsistencies that came to light under cross-examination, specifically around consent[5]. Could that mean the complainant’s story was false or fabricated for a potential personal gain? Possibly. Could it mean that she accidentally misremembered or misinterpreted key facts that led to her losing credibility within the courts and ultimately having the jury side with the defendant? That is also a realistic possibility. Such a high threshold of evidence is required in sexual assault cases, many of which are determined through who is the most credible throughout the trial. Third-party evidence or testimony is usually unlikely, making cases such as this one “he said, she said.”


Timeline

The effects of this entire criminal action against Jake Virtanen have been very dramatic due to his figure as a professional athlete. Once the allegations of sexual assault arose on social media, the Vancouver Canucks placed Virtanen on leave on May 1, 2021, due to “concerning allegations” of sexual misconduct. The Canucks organization then engaged external expertise to assist in an independent investigation into the allegations[6]. This was all despite no sexual assault allegations being filed with the Vancouver Police Service at the time against an NHL player. I can sympathize with sexual assault victims that the process of coming forward must be extremely difficult. On July 25, 2021, the Canucks placed Virtanen on unconditional waivers for the purposes of buying out his contract. This was a legally permissible course of action taken by the Canucks to ultimately cut ties with Virtanen, based not only on an unsubstantiated allegation, but also on a player who’s on-ice play and success was dwindling. The off-ice issues that were ongoing left them without a trading partner within the National Hockey League, as teams were likely not willing to acquire a player who was currently charged with an ongoing, unresolved criminal allegation. Once Virtanen was bought out of his contract with the Canucks, he had no other offers to join any other NHL club, and he chose to sign a contract with Spartak Moskva in the Kontinental Hockey League. The KHL, located primarily within Russia, is often regarded as the next best league outside of the NHL. On September 19, 2022, Virtanen signed a Professional Tryout Offer (PTO) with the Edmonton Oilers, a decision that led the team to face criticism within the media. On October 6, 2022, it was announced that Virtanen was released from his PTO with the Oilers. Where he will end up playing this season is now to be determined.


Due Process – The Power of the Media

I feel that the due process of this case, more specifically the legal rights that are owed to the accused, was bordering on unfair. The publicity that this case received was detrimental on Virtanen’s career as a professional hockey player. Most sexual assault cases are not this prevalent in the media, despite it being a very serious indictable offence. For example, a regular civilian charged with the same offence would have likely not been subjected to this level of exposure. Whereas in Virtanen’s case, being a prevalent athlete in a Canadian hockey market such as Vancouver, he was at the center of attention of the media for quite some time. I can understand this, and while professional athletes have many perks, this may be a significant downfall. As a professional athlete, you have a very short window to capitalize on the financial opportunities presented to you. Once a professional athlete’s reputation or image is damaged, severe financial and career implications can become very realistic. It is unfortunate that Virtanen was subject to this media exposure, and its implications, before there was any evidence that he was guilty of the offence. The lack of privacy may have subjected Virtanen to consequences in which ultimately played a factor in hindering or possibly ending his career as an NHL hockey player. I feel that due to the fact that sexual assault claims against a professional hockey player are going to be subject to increased media exposure, there needs to be certain protections in place to ensure that the player receives fair treatment and due process while it is being determined if any misconduct has truly taken place.


Conclusion

It is very difficult to look back at this situation and understand all the facts and truly understand how it played out in hindsight. It was never stated anywhere in the media to my knowledge that the Canucks or the National Hockey League’s independent investigations ever provided any details or indication that Virtanen may be guilty of the misconduct. With that said, it’s hard to know if placing Virtanen on leave, the buyout of his contract, or exiling him from the NHL was warranted with legitimate investigative evidence that was near or exceeding the burden of proof threshold to have him convicted in court. If it was thought by experts close to the situation that Virtanen should be found guilty, then it all seems warranted. However, if it was looking to not be proved beyond a reasonable doubt that Virtanen was guilty and he was presumed to be innocent, it seems to be an extreme measure by the Canucks and NHL to resort to the methods and sanctions they imposed. The implications that Jake Virtanen faces due to being accused of sexual misconduct have the potential to be career-threatening. While Virtanen’s career was dwindling, it is hard to argue that this ongoing legal matter did not affect his on-ice performance. I can imagine being accused of a criminal act would be difficult to carry each and every day not only as a professional hockey player but as a human being. Whether or not the criminal justice system was correct in finding Jake Virtanen not guilty, the implications of the accusation were exponential, and it is only fair that individuals in that situation receive fair treatment and due process.

[1] Charter of Human Rights and Freedoms, s 11(d), Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. [2] Government of British Columbia, “Basic Principles of Canadian Criminal Law”, (24 March 2021), online: Province of British Columbia <www2.gov.bc.ca/gov/content/justice>. [3] CBC News, “Jury finds former Vancouver Canuck Jake Virtanen not guilty of sexual assault”, (26 July 2022), online: CBC News British Columbia <www.cbc.ca/news/canada/british-columbia/jake-virtanen-not-guilty-sexual-assault-1.6532611>. [4] Sean Boynton, “Advocate says Jake Virtanen acquittal shows high bar for justice is sex assault cases”, (26 July 2022), online: Global News <https://globalnews.ca/news/9017553/jake-virtanen-verdict-reaction-sex-assault/>. [5] Ibid [6] Kevin Woodley, “Virtanen placed on leave by Canucks amid sexual misconduct allegations” (01 May 2021), online: NHL.com News <www.nhl.com/news/vancouver-canucks-jake-virtanen-placed-on-leave/c-324226812>.

 

The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.

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