NHL
Hockey
Canada Trial
On a sixth day of cross-examination, the complainant in the Hockey Canada sexual assault trial was accused of initiating sexual contact in a London, Ont., hotel room with Alex Formenton by the former NHL player’s defense attorney Daniel Brown.
Formenton, Michael McLeod, Carter Hart, Dillon Dubé and Cal Foote are all facing sexual assault charges stemming from the alleged incident while players were in town for a Hockey Canada event celebrating their 2018 World Juniors championship. All five players have pleaded not guilty.
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On Monday, Brown suggested that E.M., as the complainant is known publicly, was the aggressor in the hotel room, while the “boys” — as they have been referred to by each defense attorney through the trial — stood around her, saying they did not want to have sex with her, despite her requests.
Brown also suggested E.M. was “egging on” the players, and grew frustrated that nobody would have sex with her. “Are you going to f— me or play golf?” Brown said E.M. asked the players in the room.
E.M. said she has a hard time accepting she would have said that because “it doesn’t sound like words that have ever come out of my mouth.”
However, she remembered feeling frustrated because the men in the room kept talking about things “that they wanted to see and wanted to do.” But when she’d try to leave, she said, they’d coax her back to a bedsheet that had been laid down on the floor. She said she didn’t know why they were keeping her there.
Brown argued that at some point, Formenton, who was 18 at the time and did not attend Jack’s bar that night, agreed to have sex with E.M., but not in front of the other men.
“Some had said you were actually pulling him into the bathroom,” Brown said, adding that a witness who was in the room will provide that account. “Is it possible you just don’t remember that?”
E.M., who has testified she was feeling very drunk and has memory gaps, told Brown: “I know I got up to go to the bathroom, and then I knew he was following behind,” but conceded “it could be possible” that she pulled him into the bathroom with her.
Brown asserted that all the sexual acts that occurred in the bathroom with Formenton were prompted by E.M., and challenged her previous testimony that she was bent over the sink with no conversation beforehand.
Brown said E.M. and Formenton discussed the use of a condom — and alleged she said one wasn’t necessary because she was on birth control — as well as a sunburn she had on her chest. E.M. said she didn’t recall the conversation, but conceded that she was not “forcefully” bent over in the bathroom.
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“Perhaps (the interaction) happened exactly as you told him, and he respected exactly what you wanted to do,” Brown said.
“I don’t remember saying or suggesting (anything),” E.M. said. “But maybe.”
Later on Monday, Lisa Carnelos — attorney for Dillion Dubé — began her cross-examination of E.M. Carnelos is the fourth of five defense attorneys questioning E.M. on her version of events.
Carnelos further suggested that E.M. was asking the players to engage in sexual activity with her. She said E.M. was taunting and threatening the players, and said, “Well, I’m going to leave” if they did not have sex with her.
“Maybe I made a comment about leaving because I know I was trying to leave,” E.M. said. “But I don’t recall saying it like that.”
Carnelos challenged one instance of a player slapping her butt was “playful” and in response to her taunts.
The Crown contends that Dubé slapped E.M. on the buttocks without her consent.
On Monday, E.M. said the occasions of slapping that she recalled were when she was on the white sheet and performing oral sex.
Carnelos said one player told E.M. that some of them had girlfriends and didn’t want to do anything with her. To that, E.M. pushed back: “I’d be confused as to why they were even in the room in the first place, if that was the fact.”
The court has heard that McLeod texted members of the 2018 Canadian World Juniors team at 2:10 a.m. on June 19, asking “who wants to be in a 3 way quick” and providing his room number. E.M. has testified that she saw McLeod walking around with his phone after they had consensual sex, but did not know what he was texting. She said she was “shocked” when McLeod’s teammates began entering the room.
Carnelos also suggested on Monday that E.M. was frustrated that the men in the room were spread out, chatting with each other, and that she was not their central focus: “These boys were having fun amongst themselves separate from your existence,” Carnelos said.
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E.M. agreed the men were speaking to each other, but the naked woman on the bedsheet was their focal point.
“I felt like I was just an object there,” E.M. said. “I felt like I was there for their entertainment.”
Later, Carnelos questioned E.M.’s communications with two friends the day after the incidents. E.M. called one of her closest friends, crying, as she left the Delta Armouries hotel around 5 a.m. on the morning of June 19. In particular, she asked E.M. why she didn’t respond to a concerned text from that close friend shortly after that call until after 3:30 that afternoon, when she followed up again.
Carnelos noted that E.M. had been texting with another colleague who was at Jack’s with her the night before, without revealing that anything was wrong.
“I was still kind of just coping with everything that had just happened and not feeling well that day and I just didn’t want to, didn’t get back to her about it,” E.M. said of not responding to her close friend sooner. “ I wasn’t ready to talk about it yet.”
Monday marked the trial’s third week, and E.M.’s seventh day in the witness box, where she has appeared via CCTV since Friday, May 2. Over two weeks of cross examination, the defense has aimed to challenge E.M.’s version of events and highlight contradictions or revised statements made to investigators or the jury.
David Humphrey, who represents McLeod, was the first to question E.M. and suggest that she had been the one to initiate sexual contact with the players. Humphrey said last Tuesday that E.M. was looking for “a wild night.”
Megan Savard, the attorney for Carter Hart, suggested that E.M. was acting in a way that would have led the players to believe she was consenting. Starting on Thursday afternoon, Brown began challenging E.M.’s account of what transpired at Jack’s bar on the night of June, 18, 2018.
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Brown continued that line of questioning Monday morning, where he suggested, again, that E.M. consumed less alcohol than she has previously claimed because of smaller drink sizes served at Jack’s on the discounted “dollar-beer night.” On Friday, he presented the jury with a small plastic shot glass obtained from Jack’s bar, used for “Jägerbombs,” which he said held only half an ounce of liquid.
On Monday, he presented the plastic cups used for beer, which he said were one-third the size of a regular beer. E.M. argued that she’s not typically a beer drinker and she didn’t know any better about the serving size.
“I think it’s something you knew and intentionally held back because you wanted to create the impression you had more alcohol than you did,” Brown said.
Brown’s probing also turned to E.M.’s weight. She had previously testified that she was 120 pounds on the night of the alleged incident, but Brown said according to her medical records, she was 138 pounds. He said she had access to those medical records, and questioned why she didn’t tell the jury her actual weight.
“Maybe you were trying to leave the jury with the impression that you were much smaller than you were to emphasize the size difference between yourself and the players,” he said.
E.M. said she told the court what she had estimated at the time, not what was in the medical records.
“So you just said what you said at the time,” Brown said. “Rather than telling us the truth.”
On Tuesday, Julianna Greenspan — attorney for Cal Foote — will be the final lawyer to cross-examine E.M.
— The Athletic‘s Hailey Salvian and Dan Robson reported remotely from Toronto.
(Photo: Minas Panagiotakis / Getty Images)
