The London courthouse in London, Ont., is shown on April 30.Nicole Osborne/The Canadian Press
The woman who has accused five former members of Canada’s world junior hockey team of sexually assaulting her in a hotel room in London, Ont., in 2018 was acting in a way that would have led the players to assume she was consenting, defence lawyer Megan Savard asserted in court on Wednesday.
Ms. Savard is representing one of the accused, Carter Hart, in the proceedings. She questioned the woman, who is publicly known as E.M., about evidence she has given on what she may have said and done inside room 209 at the Delta Armouries hotel in the early morning hours of June 19, 2018.
Ms. Savard pressed E.M. about comments she made during a pretrial preparation session earlier this year with a London police officer and Crown attorneys, in which she said she may have acted like a “porn star” in order to get through the night. Ms. Savard was following up on statements E.M. has made during the trial about switching into “autopilot” at the time of the alleged attack and feeling like her mind and body separated.
During the cross-examination, Ms. Savard asked E.M. whether she “took on the persona of a porn star” as a coping mechanism on the night in question, and if part of that persona was telling the players to have sex with her.
To this, E.M. told Ms. Savard that it was clear to her the players were trying to “recreate a porn scene” and she felt that going along with what they were asking was how she was “going to get out of there.” She explained that, when she was talking about acting like a “porn star,” she was referring to “all the acts that were taking place” and the overall scene in the room, not the things she was saying.
Ms. Savard said, “You were faking arousal and enjoyment because you thought that would get you through the process more easily.”
E.M. replied that it was possible.
“It’s fair to say regardless of what you were feeling in your head, you were acting in a way that would’ve made the men in the room think that you were consenting,” Ms. Savard said.
“I don’t agree with that. I don’t know,” E.M. replied. “I don’t know for sure how I was acting. I don’t recall exactly what it was I was doing.”
Also during the cross-examination, E.M. acknowledged to Ms. Savard that during her initial police interview, she agreed with a suggestion presented by Detective Stephen Newton that the players may have believed she was consenting.
Michael McLeod, Carter Hart, Alex Formenton, Dillon Dubé and Cal Foote are each accused of sexually assaulting E.M. following a night of drinking and dancing at a local bar. Mr. McLeod faces a second charge of being a party to sexual assault.
Each has pleaded not guilty.
An initial investigation by London police was closed in 2019 without charges, but three years later, police reopened the case.
Court has heard evidence that in 2022, E.M. filed a lawsuit against Hockey Canada and eight unnamed players in connection with the alleged June, 2018, attack. The sports body settled the suit for an undisclosed amount without the knowledge of the players. Hockey Canada also launched an investigation into the alleged assault.
After a tense day of cross-examination, the day’s proceedings ended early Wednesday afternoon after E.M. broke down in tears under questioning from Ms. Savard about her 2022 statement of claim against Hockey Canada and the eight unnamed players.
Ms. Savard repeatedly asked E.M. – who has told the jury that she has been careful never to falsely accuse anyone – why she accused additional players in her lawsuit, who she has now said did not sexually assault her.
E.M. responded by saying that she left the statement of claim to her lawyers and she was following their guidance, however she was unsure what else she could say without waiving her solicitor-client privilege. (E.M. has been cautioned several times by the judge about divulging conversations she has had with her lawyer, unless she wants to waive that protection.)
“I’m not sure how to really explain this again without getting into client-solicitor privilege,” E.M. said. “I’m just really trying my best, but I’m sorry I’m getting a little flustered with everything.”
E.M. has been in the witness box – she is appearing via closed-circuit television – since Friday. She has told the court that she met Mr. McLeod and some of his teammates at a bar called Jack’s on the night of June 18, 2018. The players were in town for a Hockey Canada gala, celebrating their gold-medal win at the world championships earlier that year, although she has said she didn’t know that at the time.
E.M. spent the night drinking and dancing with Mr. McLeod and at times his teammates. After midnight, she and Mr. McLeod went to a nearby hotel and had consensual sex.
E.M. has told the court that after she and Mr. McLeod finished, men who she later learned were his teammates began showing up at the hotel room. She said she was “shocked” when they started coming inside and she became fearful.
She alleges that when they told her to lie on the floor she complied because she felt she had no choice. E.M. has alleged that for about two hours, she did what the men told her to do, including touching herself, performing oral sex and engaging in vaginal sex.
She has testified that the players were making fun of her.
“They were laughing at me. They were spitting on me at points,” she said.
When she was crying and attempting to leave, she said, they guided her back to the floor and convinced her that they were “having fun.”
But during cross-examination on Tuesday, defence lawyer David Humphrey presented jurors with an alternative version of events, in which the complainant – not the players – instigated the sexual activity.
Mr. Humphrey alleged that E.M. asked his client, Mr. McLeod, for a “wild night,” and urged him to invite some of his friends to his hotel room to engage in sex acts.
“That doesn’t sound like something that would come out of my mouth,” replied E.M., who has previously testified that she was feeling very drunk and has memory gaps from the night.
Mr. Humphrey also suggested to E.M. that, while in the hotel room, she was the one who was encouraging the players, saying things like “someone have sex with me.”
E.M. testified that she doesn’t believe she said this, however, when pressed, she conceded it was possible.
Ms. Savard’s cross examination continues Thursday.