Crown begins closing argument at hockey sexual assault trial

Content warning: This story includes allegations of sexual assault.

LONDON, Ont. — The Crown argued Wednesday that the complainant in the trial of five former NHLers accused of sexual assault was not the instigator of events in June 2018.

During testimony, E.M., as the complainant is known because of a standard publication ban on her name, was accused by defence lawyers of aggressively asking the players for sex when in Room 209 at the Delta Armouries hotel in London in the early morning hours of June 19, 2018.

Assistant Crown attorney Meaghan Cunningham said Wednesday that the earlier testimony of Taylor Raddysh and Boris Katchouk saying E.M. was quiet and under the covers when they came to the room counters the defence’s argument that she asked Michael McLeod to invite his teammates to the room for sex.

“Someone is lying,” Cunningham told Justice Maria Carroccia in court.

“It defies logic and common sense that if she was actually the instigator, if she was the one who wanted to engage in sexual activity with anyone else other than Mr. McLeod, that she would not engage with Raddysh and Katchouk. It makes absolutely no sense.”

She also added that Raddysh and Katchouk — who left before the other players came to the room — were the only two players to have seen E.M. that night who were not in the group chat set up June 26, 2018, to discuss the incident.

“Their description is completely at odds with the testimony of everyone who was in the group chat,” Cunningham said.

Cunningham said the evidence proves McLeod was the one who had the plan, including the fact he told London police Detective Stephen Newton during an interview in 2018 that he told the players in the room not to use their phones to record what was going on and to “be smart about this.”

Seeing that the night was set up by McLeod is a lens through which Carroccia should view the rest of the night, Cunningham said.

“This is how it all started,” Cunningham said. “E.M. was not the one who started this. He was the one who told them she was there for their sexual pleasure. She didn’t know. That paints all of the witnesses in a very different light.”

She added that when McLeod sent a text to a group of players reading, “Who wants to be in a 3 way quick,” the use of the word “quick” denotes a sense of urgency because “he knows she doesn’t even know she has made the offer to his friends.”

On Wednesday morning, lawyers for Cal Foote and Dillon Dube completed their closing submissions.

Julianna Greenspan, primary lawyer for Foote, started her submission by saying, “Cal Foote did not sexually assault E.M.”

She said E.M. changed her story from her original interview with London police to say that a man, later identified as Foote, did the splits over her while naked on June 19, 2018.

“She didn’t say it in 2018 because the person was not naked,” Greenspan said. “Her explanation is nonsensical.”

Carter Hart testified during the trial that he saw Foote do the splits over E.M. while fully clothed and that he didn’t touch her when he did them. Hart said E.M. was laughing while it was happening.

Video was shown during the trial of Foote doing the splits on the dancefloor at Jack’s bar, fully clothed. Greenspan said the same thing happened in Room 209.

“There is evidence that people in that room said, ‘Footer, do the splits.’ … There’s no evidence people said, ‘Oh, and take your clothes off. Take your clothes off this time when you do that thing you do every time you do the splits with your clothes on.’”

Greenspan also questioned why other players who were in Room 209 that night were not called as witnesses by the Crown. In addition to Raddysh and Katchouk, also called by the Crown were Brett Howden and Tyler Steenbergen. Not called were Drake Batherson, Jake Bean, Maxime Comtois, Sam Steel and Robert Thomas. Police interviews were shown of McLeod and Alex Formenton. An audio recording of an interview with Dube was played for the court.

Concluding her submission for Dube, Lisa Carnelos said the Crown had not proven beyond a reasonable doubt that E.M. was not consenting and therefore Carroccia must acquit all five defendants.

Closing submissions, also known as closing arguments, are used by the defence and Crown to summarize evidence, reinforce key points and attempt to persuade, in this case, the judge, to rule in their favour. Closing submissions are not evidence.

McLeod has been charged with two counts of sexual assault, including one relating to aiding in the offence. Dube, Foote, Formenton and Hart have each been charged with one count of sexual assault. All pleaded not guilty to their charges.

The Crown is expected to continue presenting its closing submissions on Thursday, followed by replies or rebuttals from the defence lawyers, which could go into Friday. The trial is nearing the end of its eighth week. The verdict for the trial is scheduled to be read in court by Carroccia on July 24.