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Consent must be active and ongoing and freely given.

The original detective who investigated her complaint about sexual assault by a number of young men and declined to press any charges, crucified for that? He got it right, I’d say. This was not a case that should ever have come to trial. Nor one that should motivate Parliament to change the legislation again because bad cases make bad laws.

And the five former members of the 2018 world champion junior hockey team who were charged with sexual assault, prejudged by the masses, pre-emptively condemned, depicted as monsters in the media, their nascent NHL careers quashed: Michael McLeod, Carter Hart, Dillon Dubé, Cal Foote, Alex Formenton. Not guilty across the board.

It wasn’t the verdict some people were expecting, and many were pining for — including the placard-carrying protesters outside the London, Ont., courthouse, where the careering trial played out for two months, through two dismissed juries, ultimately transformed into a judge-alone proceeding. And what a wise, ballsy judge, Justice Maria Carroccia, shrugging off the pressure she must have felt from a trial that had transfixed a nation and provoked outrage, revulsion, pitchforking.

She got it right, too. After sifting through the evidence for the past month, applying the law as it exists — not as many apparently want it to be, with de facto convictions on the say-so of a complainant, nothing more — and writing a decision that took her more than four hours to deliver orally on Thursday, her already gravelly voice growing ever raspier as she sipped water.

She came out swinging. As in, just dare to impugn my judgment. Or just dare to appeal the verdict. Sounded appeal-proof to me.

“Much has been made in this case about the concept of consent,” Carroccia began, after a brief introduction of the events in dispute. “This case, on its facts, does not raise issues of the reformulation of the legal concept of consent. In this case, I have found actual consent not vitiated by fear.”

Vitiated: Meaning voided, invalidated or made legally ineffective.

“I do not find the evidence of E.M. to be either credible or reliable.”

Sound of exhaled breath from the defendants, little gasps heard around the courtroom, heads bowed in relief. The hugs would come later.

E.M., as the complainant was known, her identity protected by a standard publication ban. E.M., who went out with girlfriends to Jack’s Bar that night, June 18, and whose testimony — a considerable chunk of it — didn’t match what was captured on surveillance video, significantly inconsistent between her three initial statements to police and the allegations contained in a $3.5-million civil lawsuit brought against Hockey Canada and what were then eight unnamed players. A lawsuit quietly settled by Hockey Canada from a slush fund, the players finger-pointed (in some cases wrongly), not even aware of the settlement at the time.

A narration of events, from E.M. that veered from way too drunk to form consent, as per her police interviews, driven by fear about what these guys might do to her if she made them stop, if she tried to leave — although even E.M. admitted that nobody ever tried to prevent her from skedaddling.

Otherwise pretty much all the “facts” in the dueling iteration of events — a willing and compliant, hugely eager sexual adventuress or a 20-year-old not-quite-naif who’d got herself in a mess of trouble by going off for consensual sex with McLeod and then was confronted by up to 10 of his teammates, drawn by his temptation three-way invitation via text, though several backed away when they got there, wanted no part of it.

Did E.M. want it? Did she induce it? Did she demand it? In her testimony, she insisted no and no and no. The players, through their top-shelf defence lawyers — only one, Hart, took the stand — insisted yes and yes.

Or was it all an invention of sexual assault, after-the-fact, from a state of remorse, the nonconsent appeasing for mother and boyfriend? And don’t forget the settlement wad.

Carroccia brought sharp legal analysis to the fraught case. Those familiar with the law never doubted the defendants would be acquitted. But the ordinary person, many ordinary persons following the scandal from the moment it publicly erupted with disclosure of the successful lawsuit payout, were in a fury, disgusted by the alleged conduct of the players. Didn’t they have mothers and sisters? How could they treat any woman with such casual disrespect, much less criminal sexual assault?

It became a morality play rather than a trial. Except Carroccia wasn’t having any of it.

“It is not the function of this court to make determinations about the morality or the propriety of the conduct of any of the persons involved in these events,” she read. “The sole function of this court is to determine whether the Crown has proven each of the charges against each of the accused beyond a reasonable doubt.”

She cut to the tortured heart of the matter. “Although the slogan ‘believe the victim’ has become popularized of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing the burden on him to prove his innocence. That is antithetical to the fundamental principles of justice enshrined in our Constitution and the values underlying our free and democratic society.”

Formenton’s lawyer, Hilary Dudding, tried to make the point in closing arguments that the case was absolutely not about personal morality and, further, rejected the Crown’s reasoning that the defence overall had engaged in myth-based reasoning by questioning E.M.‘s behaviour — basically turning on its head the “rape myths” the prosecution had advanced. The Crown’s reasoning “really implies that for a woman to be assertively asking for sex in a group scenario is so inherently bizarre and odd that it requires some explanation other than that woman is consenting.”

The approach, in fact, is infantilizing women.

But it was E.M. on the stands for nine days, during which she kept her composure on all but one occasion, who proved to be the weak link in the case.

The judge ticked off the many details that E.M. couldn’t remember or misremembered: McLeod had never guided her hand to his crotch on the dance-floor, she was the one who put it there; she was steady on her stiletto heels, no intoxicated stumbling; she wasn’t deliberately segregated from her friends by the players, in fact ignored seven texts sent by a girlfriend and a followup phone call, asking if she needed help to get away from the men. To name only a few of the irregularities. And she definitely had multiple opportunities to detach from the group, at the bar and in the hotel room.

“Another way the complainant apparently filled in gaps in her memory with assumptions,” continued the judge, “is the manner in which she answered questions. For instance, she would say ‘I feel that I’ and she would speculate as opposed to remembering or knowing the answer to the question. This reflects her uncertainty of memory.”

The Crown’s argument under the law — and the intrinsic fallacy of the consent principle — is that every step of the sexual interaction must be signalled in advance and agreement sought, and even declared consent doesn’t mean actual consent because E.M. hadn’t given consent in her head. Nor had she ever said no, ever said stop, ever said I don’t want to.

What she said on the stand: “With how drunk I was and the comments I was hearing the men make about this girl being effing crazy, maybe I was saying things like that, but I have no memory of that. I just know that’s not how I would usually be acting. And if they could see I was that out of my mind and acting that crazy then I feel that they should have known better.”

Except she wasn’t, Carroccia concluded, all that drunk.

Lead Crown Attorney Meaghan Cunningham, chair of the province’s sexual violence advisory group, had warned E.M. that, while she believed the test to prosecute had been met — that E.M. was incapable of giving consent under the circumstances — it was “not a really, really strong case.”

In the end, Cunningham’s caution was on the nose. And E.M. is the loser.

But as she prepares for her upcoming wedding, to the same boyfriend she cuckolded back then, E.M. is also a much richer woman. The verdict doesn’t matter. She doesn’t have to give the money back.