NHL
Hockey
Canada Trial
LONDON, Ont. – Defense attorneys accused the complainant in the Hockey Canada sexual assault trial of tailoring her story to push an “agenda,” advancing narratives about her mental state to bolster her civil claim and “lying under oath” as closing arguments continued on Tuesday.
Justice Maria Carroccia will weigh in on those assertions and more when she renders decisions in the case. During Tuesday’s proceedings, Carroccia said verdicts would be delivered in person at 10 a.m. on July 24.
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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.
Dan Brown, attorney for Formenton, accused E.M. of “lying under oath” and presented her as a witness who has repeatedly blamed others to absolve herself of responsibility.
“It’s always someone else’s fault,” Brown said.
In his submissions, Brown addressed what he described as the “mental gymnastics” required to reconcile elements of E.M.’s testimony with evidence presented at trial. He said video evidence refuted her testimony about her intoxication, who procured her drinks at the bar, her separation from her friends, her ability to shake off McLeod at the bar and whether others checked in on her throughout the night. He said evidence of digital messages involving her friend caused her to adapt her testimony as well.
Brown said that E.M. “was always looking ahead,” “hedging her bets” and providing herself “exit routes” or “safety valves” in her testimony in the event she was presented with contradictory evidence. He went further to accuse her of outright lying regarding two specific areas in her testimony.
“She didn’t just get things wrong,” Brown said. “She lied under oath.”
Brown said she lied about her weight by initially testifying she weighed 120 pounds at the time of the alleged incident in 2018. In cross-examination she acknowledged she weighed 138 pounds. According to Brown, she learned the discrepancy when reviewing her medical records, but made an effort to remain consistent with her original testimony.
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Brown said she also knew she had provided incorrect evidence and factual errors in her 2022 statement to Hockey Canada, particularly about falling at Jack’s bar at the end of the night, in front of McLeod. In cross examination, E.M. acknowledged the chronology of the fall was incorrect in the statement provided to Hockey Canada, provided by her civil attorney. Brown called it a “deliberate lie.” (McLeod told investigator Danielle Robitaille in October 2022 that he witnessed E.M. fall but that it was due to the beer-covered floor, not her intoxication; McLeod’s statements in that interview were ruled inadmissible as evidence).
“It’s these decisions to intentionally lie under oath that should cause Your Honor concern,” he said.
Brown also addressed the four “mental states” that he said E.M. detailed over the course of her statements and testimony — that she was too drunk to consent, that her mind separated from her body and her body performed actions her mind did not authorize, that terror and fear negated her ability to make a real choice and that her people-pleasing tendencies made her more compliant.
E.M. testified that she was drunk, fearful and vulnerable while in a room full of players who were “towering over her” and pressuring her to perform sexual acts. She said that she went on “autopilot” — dissociating to get through the night as she was degraded, humiliated, spit on and slapped.
He conceded that she was moderately impaired but not too intoxicated to consent. He said he based that on surveillance videos at Jack’s bar, the Delta hotel and personal videos McLeod filmed within the hotel room, which he argued didn’t show outward displays of drunkenness or motor skill impairment.
Brown said that E.M. used her drunkenness as a “crutch” and suggested that once London Police assessed they did not have grounds to lay charges when they closed their initial investigation in 2019, E.M. realized the intoxication argument would not be sufficient to advance her “quest for justice.”
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He suggested she then pivoted to different explanations about her state of mind in advance of filing a $3.55 million lawsuit against Hockey Canada, which was resolved via out-of-court settlement in 2022 (the financial terms of that settlement have never been publicly disclosed).
“She wants money. She wants a lot of money,” Brown said. “She wants three and a half million dollars and she’s been told that whatever evidence she’s claiming about her extreme intoxication, and whatever evidence she knows exists, doesn’t quite get her there.”
Brown suggested she may have accepted the settlement so quickly so as to avoid scrutiny.
At one point, during Brown’s submission, when he addressed what he described as E.M.’s omissions to Hockey Canada to “craft a story” that she was coerced into a sexual encounter, Hart’s mother became visibly emotional, leaving the courtroom in tears.
Brown said E.M. couldn’t be so incapacitated that she was unable to make a choice while still making rational choices. Nor could she during her period of claimed dissociation (an “automaton,” as he described) or if she was so fearful it negated her ability to have true agency, he said. He pointed out that she refused to lie on a dirty hotel floor, that she said “No” or laughed off the suggestion of inserting a golf club and golf balls into her vagina and that when she told the players the “spank” she received (E.M. said she was slapped on the buttocks) was “too forceful,” the contact stopped.
“These things can’t exist together. They conflict,” Brown said. “We can’t reconcile them because they’re not truthful. It’s as simple as that. They’re not truthful states of mind. They’re all designed to mask consent.”
He said that the sex between E.M. and his client was consensual because E.M. verbalized wanting players to have sex with her and Formenton took her up on that offer. He said “they both agreed” and that it was “not complicated.”
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“That the sex in this case was unusual, or unenjoyable, or embarrassing, or even regrettable, doesn’t mean it wasn’t consensual,” Brown said on the issue of consent.
Lisa Carnelos, attorney for Dubé, spent significant time addressing Dubé’s omission in his 2018 police interview about making contact with E.M.’s buttocks. This issue sparked Justice Carroccia’s interest, as she explained that she’d have to assess whether the omission was intentional – meaning he thought the contact was problematic — or whether the omission was unintentional — because he thought it was insignificant.
Carnelos said that because Dubé did not testify, drawing any inference of guilt or any adverse finding about credibility from the omission would be improper. She said the fact that Dubé willingly spoke to police, and even admitted he was holding a golf club in the hotel room at one point, should be considered “hallmarks” of an honest witness. She added that if he were going to omit an element of his conduct, he’d be more likely to omit the more significant act — that he received oral sex from E.M. — instead.
Carnelos said the contact was a “minor act consistent with foreplay.” She said it was “very possible” he did not appreciate the significance of the act, had forgotten to mention it, or had forgotten that it happened altogether.
Savard, who began her closing submissions on Monday, finished her closing argument Tuesday by asking Carroccia to consider that E.M.’s “slippery” testimony and “revisionist tendencies” were designed to advance an agenda. She said that E.M. came across as a “P.R. professional” rather than an honest witness attempting to access data. Savard said that in her testimony, E.M. conflated her feelings or inferences and presented them as facts.
Savard described her testimony as an “exercise in fact-finding frustration,” which she argued was “deliberate” and renders her testimony impossible to take at face value.
“The goal is to obscure because this witness knows the truth will not serve her agenda,” Savard said.
— The Athletic‘s Dan Robson contributed reporting remotely from Toronto and The Athletic‘s Kamila Hinkson contributed reporting remotely from Montreal.
(Photo by Andy Devlin / Getty Images)
