Judge questions Crown during closing argument at hockey sexual assault trial

Content warning: This story includes allegations of sexual assault.

LONDON, Ont. — In a closing argument that was interrupted multiple times by questions from the judge, the Crown said Thursday the complainant’s testimony about being sexually assaulted should be believed over that of the five accused former NHLers.

In the second day of her closing submissions, assistant Crown attorney Meaghan Cunningham used PowerPoint and stills from videos to strongly reinforce her arguments that E.M., as the complainant is known because of a publication ban on her name, did not consent to most of the sexual activity in the early hours of June 19, 2018.

“The totality of the evidence paints a really clear picture that she is upset, she’s trying to leave, and they are taking steps to keep her in the room,” Cunningham told Justice Maria Carroccia in court.

As court has heard, E.M. had consensual sex with Michael McLeod after they returned to the Delta Armouries hotel after meeting at Jack’s bar. But Cunningham, using a sharp breakdown of the position of the five defence teams, says E.M. did not give consent to any of the acts that followed.

Cunningham cited Canadian law and precedent that states, among other things, that because the default for consent is no, consent must be given for every sexual act and with every person engaged in that act. There is no “blanket consent.”

“You heard from six men who were in the room,” Cunningham said. “They all said she was consenting. No one but E.M. can say if she was consenting. It is only what is in her own mind that matters.”

Thus, Cunningham added, “E.M. might have said, ‘Someone do something to me.’ That is not a valid consent in law to do anything. It doesn’t involve a particular act with a particular person.”

Cunningham said E.M. agreed to perform sexual acts because she was afraid of what might happen if she didn’t because she was in a hotel room crowded with men whom she didn’t know.

During that night, “(E.M.) has no reason to be confident that they won’t harm her or make her do worse things if she doesn’t go along with what they ask,” Cunningham said.

Cunningham also said that if E.M. was “begging” for sex, as some of the players testified and as the defence lawyers allege, then the so-called consent videos from McLeod’s phone would’ve shown that.

“If she was demanding sex, begging for sex repeatedly, wouldn’t it make sense to capture that on video, or even audio?” Cunningham said. “If he was truly interested in capturing her enthusiastic consent on video, they had plenty of opportunity because they say she was saying stuff like that all night.”

Cunningham also took issue with the defence’s position and McLeod’s police statement that the players went to Room 209 in the Delta for food, saying it was effectively “a false idea planted into the group chat” that forms the basis of narrative, or story, the players all adopted about the night.

She added that McLeod “flat-out lied” to Det. Stephen Newton about ordering food during a London Police Service interview on Nov. 17, 2018. To back that up, she showed a still of the Delta lobby security video from June 19, 2018, that shows McLeod accepting a small white plastic bag from a driver at 2:57 a.m. that is “not an order that you would make to share with even two other people.”

Dillon Dube said he went to the room because he received a text from world junior teammate Jake Bean about food. Cunningham said there was no evidence of a text from Bean. Dube also told investigators he didn’t see the text from McLeod inviting players for a “3-way” because he didn’t look at his phone, but Cunningham showed another lobby security camera still photo showing Dube arriving at the Delta at 3:13 a.m., with his shirt off and his phone to his ear.

“It’s reasonable to infer that he said that to explain why he’s shocked to find a naked woman in (Room) 209,” Cunningham said. “It doesn’t add up. It’s all designed to give him plausible deniability that he saw that text from Mr. McLeod. It’s reasonable to infer that he was going to 209 because he knew that sex was on offer.”

Food in the room was at the heart of a back-and-forth between Cunningham and Carroccia. After the Crown’s presentation of text messages from which Cunningham wanted Carroccia to use in their totality and not judge individually (some of the texts were from players who did not testify), they got into a minor debate about whether there could have been food in the room before McLeod went to the lobby to pick up the delivery.

Seemingly frustrated, Cunningham requested the afternoon break be taken earlier than planned, to which Carroccia agreed. The break came on the heels of a series of questions by Carroccia asking Cunningham to clarify points, provide case law and commenting on the validity of some of Cunningham’s evidence.

Cunningham also countered the idea the defence argued that E.M. was a difficult witness who came to court with an agenda. Cunningham said that approach by the defence in their five closing statements is one of the reasons many women don’t come forward when they are sexually assaulted.

“If she’s too emotional, she’s combative. If she’s not emotional enough, she’s rehearsed. If she uses the same language over and over, it’s contrived,” Cunningham said. “If she uses different language, she’s inconsistent.

“It all finds its roots in the ideal victim, that there is a right way for someone to look and sound when describing sexual assault, that there is a right way or a good way for a victim to testify.”

Other noteworthy parts of Cunningham’s closing argument included refuting that E.M.:

• fabricated the story to save face with her boyfriend and her mother

• had financial incentive to pursue criminal charges

• changed her story to suit her needs approaching the trial

• lied under oath

McLeod has been charged with two counts of sexual assault, including one relating to aiding in the offence. 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.

To avoid going past the eight allotted weeks for the trial, Carroccia agreed to start court Friday at 9 a.m. instead of the customary 10 a.m. Friday is the last day of the eight weeks.

Cunningham said the Crown would likely need the morning on Friday to complete its submission. Defence lawyers committed to completing replies, or rebuttals, to the Crown before the end of the day so this portion of the trial wrapped before the weekend.

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