NHL
Hockey
Canada Trial
LONDON, Ont. – Defense attorneys began delivering their closing arguments in the Hockey Canada sexual assault trial on Monday, attacking the complainant’s testimony as containing a “cornucopia of credibility and reliability concerns” and suggesting that she has re-tooled her narrative to present herself as a victim to evoke sympathy from friends and family and in pursuit of the civil lawsuit she settled in 2022.
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Michael McLeod, Carter Hart, Alex Formenton, Dillon Dubé and Cal Foote are all charged with sexual assault after an alleged incident in June 2018. The complainant — a woman known as E.M., whose identity is protected by a publication ban — has said she was sexually assaulted over the span of several hours in a London, Ont., hotel room. The players were in town for a Hockey Canada event celebrating their gold medal at the 2018 World Junior Championship.
McLeod is also facing a second charge for “being a party to the offense” for what the Crown has asserted was his role “assisting and encouraging his teammates to engage sexually” with E.M. All five players have pleaded not guilty.
David Humphrey, attorney for McLeod, was the first defense attorney to make oral submissions in front of Justice Maria Carroccia in the eighth and final week of the trial. He pre-empted his argument by telling Carroccia that usually defense teams are “happy to have a few hits” on the complainant, but this case has an abundance.
“This is a case where the defense has an embarrassment of riches,” Humphrey said. “A cornucopia of credibility and reliability concerns in (E.M.’s) testimony.”
E.M. testified that she met McLeod at a local bar, and engaged in a night of drinking and dancing before the two went back to his hotel to have consensual sex. She said that following that initial sexual encounter, she emerged from the bathroom to find more men in the room. Over the course of several hours, she said she was pressured to perform sexual acts, spit on, slapped and asked to insert golf clubs and golf balls into her vagina.
She described feeling scared and vulnerable and said that she went on “autopilot” — dissociating to get through the night.
Multiple players testified about a group text message they received from McLeod, inviting them for a “3 way quick” and supplying his room number, but said she initiated the sexual acts, asking players to have sex with her and goading them when they declined.
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Humphrey said that E.M. is a “flawed witness” whose testimony is “unbelievable and unreliable.” She may have not wanted to acknowledge that she had a “sexually adventurous” night in the hotel room, Humphrey said. He said that she didn’t want to take responsibility for her actions and suggested that embarrassment and regret prompted her to tell a “white lie” to her mother about what happened in the early-morning hours of June 19, 2018. Humphrey said that “white lie” then snowballed into a criminal investigation.
Humphrey seized on E.M.’s initial police interview in the days following the alleged incident and noted that she did not describe the fear she testified about when speaking with Detective Stephen Newton. (E.M. testified that at the time of that June 2018 interview with London Police, she was still processing what happened to her and felt uncomfortable talking about it with a male detective whom she had never met previously.)
Humphrey said that the element of fear was not sincere and instead invoked to support her $3.55 million lawsuit against Hockey Canada, which was resolved via an out-of-court settlement in 2022.
“Her new terror narrative that was advanced in the claim was scripted to remedy the deficiencies in the first narrative she had provided to Detective Newton,” Humphrey said.
Justice Carroccia’s first substantive remark of the day was to note the speed with which the Hockey Canada lawsuit was settled:
“Extremely quickly, frankly,” Carroccia said. “I have never seen a settlement that takes place one month after the statement of claim is served.”
In his submission, Humphrey addressed a few elements of his client’s actions, including his initial interview with police in November 2018 and the two videos he referred to as “consent videos.”
Humphrey acknowledged that when McLeod was interviewed by police he did not detail the full contents of the text messages he sent to teammates, including the group chat message with an invitation for three-way sex and an invitation to another player offering a “gummer,” which is slang for oral sex. Humphrey said he wasn’t sure if McLeod just didn’t remember the content of his texts or had not done a deep dive on the contents of his phone. He expressed disappointment that Newton did not ask further questions after McLeod disclosed he texted teammates that he was ordering food and had a girl in his room that night.
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Humphrey said McLeod only invited a “limited number” of players. (The “gummer” text was sent to Taylor Raddysh. The “3 way” text was sent to a group chat of 19 players.) Humphrey argued that because the text describes a “three-way” it wasn’t reasonable to conclude he anticipated more than a few players taking him up on the invitation.
“He was surprised by the number of people who came,” Humphrey said.
Humphrey said the two videos recorded in the early morning of June 19, 2018 are critical to McLeod’s defense. In one of the videos, she says “I’m OK” when asked if she’s “OK with this.” In the other, she says, “It was all consensual.” E.M. has testified that she didn’t recall those videos being recorded but said that she believes they were taken at the end of the night because she recalled McLeod hounding her to say the sexual acts were consensual.
Humphrey said it was an “unusual” and “awkward” situation and that McLeod didn’t know if E.M. would wake up the next morning to “gloat” about what happened or with regret. He praised McLeod’s presence of mind in memorializing what he described as evidence of her being “happy” and fine with everything that was happening.
“He was drunk but he still had his head on straight and he wanted to make sure she was fully consenting,” Humphrey said.
In his oral submission, Humphrey argued that the Crown had not met its burden of proof in proving the charges against his client beyond a reasonable doubt. He added that the alcohol consumption and passage of time that degraded the memory quality of many witnesses in the trial should leave the court with reasonable doubt.
Humphrey also said that he wanted to explain, for those watching the proceedings less familiar with the law, that it was not the court’s job to “assess the morality of how the accused or others in the room were acting, whether they could have been better behaved or more respectful.”
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“Those issues may be of interest to the public, but they are not issues for assessment by the court,” Humphrey said.
Later in the day, Megan Savard, an attorney for Hart, asked the judge to acquit her client based on his testimony, which she described as “exculpatory,” and his credibility as a “frank” and “forthright” witness who was “virtually unshaken” by cross-examination. By contrast, she said, E.M.’s “account of the sexual events of that night cannot be trusted.”
Hart, who was the only player charged to take the stand, testified that he was “excited” about the prospect of a group sexual encounter when he received the “3 way” text from McLeod. Hart said he received oral sex from E.M. and ended the encounter, which he estimated lasted roughly 30 to 60 seconds, because he felt “weird” and could not get fully erect.
Savard noted that because of alcohol and memory gaps, the picture of the night was sometimes “sketchy” or imperfect on the details, but that the fundamental elements of Hart’s testimony — that his “encounter was brief and unambiguously consensual, albeit possibly interrupted by his embarrassment or performance issues” — were consistent with what she said Tyler Steenbergen and Brett Howden testified about.
“When it comes to the big picture, there is safety in numbers,” Savard said. “Their evidence overlaps. … If any one of the three is telling the truth, then Mr. Hart is exonerated.”
Savard said that Hart secured verbal and nonverbal consent from E.M. prior to the oral sex and suggested that Hart asked E.M. for a “blowie” as an exercise in “boundary setting” because he did not want to have vaginal sex with her.
Savard said the group chat on June 26, 2018, in which players discussed the Hockey Canada investigation, was not evidence of collusion and rejected the notion that Hart was “out to help his friends.” Savard said if that was true, “cross would have looked very different,” detailing a number of elements that Hart testified about that did not help his co-defendants.
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Savard argued that Hart was trying to be helpful, without being a “yes man” for the defense.
“To the extent there is a stereotype infusing any party submissions in this trial,” Savard said. “It is this insidious idea that hockey players, by virtue of the fact that they play closely together on a team in professional sports, naturally protect their own — circle the wagon, form a perjury phalanx.”
She said that Hart’s willingness to admit the gaps in his memory should enhance his credibility as a witness rather than undermine it, and asked that Hart and E.M. be held to the same standards on this issue.
Savard described a number of the things E.M. did not remember or was “hazy” about — including any conversations about the terms of sexual activity in the room, who put a bed sheet down on the floor for her to lay on, who pulled down the pants of the player she gave oral sex to, could not identify who she had oral sex with, or whether the men’s penises were hard or flaccid, or what happened before or after Foote did the splits over her.
Savard described an “evidentiary gap” on what E.M. said and thought around the sexual activity, calling it the one live issue at trial that makes it, “in some ways analogous to a capacity case.”
She made multiple references to the “porn star” persona E.M. previously described taking on as a coping mechanism and later rejected the idea that E.M. dissociated as a result of trauma, saying instead she believes E.M. was “consenting enthusiastically, regretting it later.”
In the final stage of the day’s arguments, Savard also provided insight into the impending Crown’s submissions, indicating that the Crown would be arguing that E.M. did not make sexual demands or invitations of the players, as Steenbergen, Howden and Hart all testified. Savard said this was a surprising development to the defense teams; they assumed the Crown would allow for the possibility E.M. did make such invitations as a trauma response.
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Savard asked Carroccia to consider the fairness of the Crown making that submission, arguing that the Crown did not challenge any of the three players’ testimony on this issue and thus did not allow them to defend themselves against any assertion that their testimony wasn’t truthful.
— The Athletic‘s Kamila Hinkson reported remotely from Montreal.
(Courtroom sketch of defense attorney David Humphrey from earlier in the trial by Alexandra Newbould / The Canadian Press via AP)
