Judge hears final arguments at hockey sexual assault trial

Content warning: This story includes allegations of sexual assault.

LONDON, Ont. — The Crown wrapped up its closing submissions on Friday by summarizing why it feels the judge should find each of the five former NHLers accused of a 2018 sexual assault guilty.

On the final day of a roller-coaster trial that lasted two months, assistant Crown attorney Meaghan Cunningham said Justice Maria Carroccia should “accept the evidence of E.M. and we urge Your Honour to find each of the accused guilty as charged.”

The complainant in the case is known as E.M. because of a publication ban on her name.

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

The Crown concluded its closing submission by making its case for the abetting charge, which is more commonly associated with murder trials, against McLeod.

Cunningham said the Crown maintains that McLeod “orchestrated this whole sordid night,” in which it is alleged McLeod texted teammates to come to Room 209 at the Delta Armouries hotel on June 19, 2018, for a “3-way, quick.” Cunningham said McLeod went into the hallway and to another room in the hotel to bring teammates into his room.

“Knowing that E.M. had expressed no interest in or willingness to engage in sexual activity with anyone other than him, he then begins a campaign to bring men into the room to do that very thing,” Cunningham said.

“All of his actions are intended to leave his teammates with the impression that she’s willing to engage in that sexual activity.”

Assistant Crown attorney Heather Donkers took Carroccia through the credibility and reliability of each of the accused, saying the defence lawyers argued that the players thought E.M.’s consent to one kind of sex act meant interest or consent in other kinds of sex acts, which is contrary to Canadian law.

For Hart:

“He did not have a conversation with her to ascertain what brought her there, what she was interested in, what her limits were, what contraception should be potentially used.

“Instead, he was presented with the opportunity that he was looking for all night — to have sexual activity with a woman — and in his excited state, rather than take the steps that would be reasonable in the circumstances, Mr. Hart was reckless as to whether (E.M.) was consenting to the sexual act … with him, specifically.”

For McLeod:

His reliability and credibility are called into question because of “a willingness to lie to police about any significant issue,” which the Crown alleges includes who asked the players to his room and the reason they went there.

Further, he exhibited either “recklessness” or “willful blindness” when it came to E.M.’s consent.

For Dube:

He left out his smacking of E.M.’s buttocks when giving a statement to police in 2018 because he knew it “crossed the line,” and “goes beyond the bounds of what you could reasonably portray as consensual in the circumstances,” exhibiting a “consciousness of guilt.”

For Formenton:

There was no conversation between him and E.M. before they went to the bathroom to have sex. In her testimony, E.M. said she felt like she didn’t have a choice but to have sex with Formenton.

“Mr. Formenton says what happened was consensual. Even if he sincerely believes that, it doesn’t make it true.”

For Foote:

E.M. did not consent to Foote doing the splits while naked over her because she didn’t know that was going to happen.

“This type of act is not one that is easily confused. E.M. viscerally testified about how this person had his bottoms and underwear off, and that he did the splits on her face.”

Cunningham began the day by returning to the argument that E.M. did not consent to what went on in the room that night, calling the so-called consent videos “token lip-service box-checking” that wasn’t actually consent because they didn’t refer to any one act with one person.

“At no time did anyone engage in a sincere conversation with E.M. about what she truly wanted to happen,” Cunningham said. “At no point does anyone say, ‘Do you want to slow this down?’”

The defence’s replies after the lunch break were restrained largely because time was running out in the day.

David Humphrey, one of McLeod’s lawyers, said the Crown’s approach was “changing and evolving” right through to closing arguments. He added that E.M. was “communicating consent” throughout the night.

Humphrey disagreed with the Crown that McLeod’s omission of telling London police in 2018 that he sent a text inviting his teammates to the room meant a “consciousness of guilt.”

Riaz Sayani, one of Hart’s lawyers, said the second consent video was proof of E.M.’s true demeanour of the night. He disagreed with the Crown’s position that trauma caused E.M.’s bizarre behaviour that night.

Hilary Dudding, one of Formenton’s lawyers, said the characterization of E.M. behaving bizarrely has a tinge of sexism to it.

“That reasoning implies that a woman assertively asking for sex is so inherently bizarre and odd that it requires some kind of explanation, other than she is actually excited about it,” Dudding said.

“It’s stereotypical thinking about what kinds of sex people like and don’t like, and that women are OK with or not OK with.”

Lisa Carnelos, one of Dube’s lawyers, reiterated the contact with E.M.’s buttocks by her client was “playful touching. Tapping,” and the Crown had not proven E.M. wasn’t consenting to it. She added that it “in no way looked to be harmful” or “had the intention of being abusive.”

Julianna Greenspan, primary lawyer for Foote, wrapped up the defence’s replies, and this portion of the trial, by urging Carroccia “to consider all of the actual evidence in this case through the lens of the presumption of innocence.”

After Carroccia dismissed court and left for the day, lawyers from both sides shared hugs and shook hands.

The verdict is scheduled to be read in court by Carroccia on July 24.