Crown argues videos of Hockey Canada complainant are not evidence of consent

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Legal arguments in the trial of five former world junior hockey players accused of sexual assault in 2018 concluded Friday with the Crown laying out what it called a “path to conviction,” and defence lawyers arguing that there is insufficient evidence for a guilty verdict.

In wrapping up the prosecution’s submissions, Crown attorney Meaghan Cunningham invoked the words of the woman at the centre of the case, who testified that she never consented to sex with multiple players inside a hotel room in London, Ont.

“They could have let me leave,” Ms. Cunningham said, reading from testimony given by E.M., whose identity is protected by a publication ban. “Any one of those men could have stood up and said, ‘This isn’t right,’ and no one did.”

Ms. Cunningham told Justice Maria Carroccia: “In my submission, this really does encapsulate what was going on.”

The defence lawyers, who got the final word, reiterated the argument they have made repeatedly throughout the trial that it was E.M. who was asking the men for sex and that she did not object to any of the acts that transpired over the course of several hours. “She was communicating consent throughout,” defence lawyer David Humphrey, who represents Michael McLeod, one of the accused, told the court.

The matter of consent is at the heart of the case that Justice Carroccia will now decide. She is scheduled to deliver her verdict on July 24.

The evidence at the eight-week trial included short cellphone videos of the complainant, where she can been seen saying “it was all consensual,” on the night of the alleged assault, which the prosecution focused on Friday, arguing they do not serve as proof that E.M. agreed to multiple sex acts.

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Instead, Ms. Cunningham asserted that the videos Mr. McLeod shot on his cellphone in the early hours of June 19, 2018, in his room at London’s Delta Armouries, were coerced statements that amount to “box checking” after the fact.

In one video, taken earlier in the night, he can be heard saying “You’re okay with this, though, right?” E.M. agrees. In a second video, taken later, Mr. McLeod can be heard telling the woman, “Say it.” After that, E.M. states: “it was all consensual” and “I enjoyed it.”

The videos form a key aspect of the defence’s case that the acts in question, including oral sex performed by E.M. on several hockey players, were consensual.

But Ms. Cunningham told the court the videos show the opposite.

“It is the Crown’s submission that these videos are not evidence of consent. They are also not evidence of any reasonable steps to sincerely ascertain valid consent in law.” Ms. Cunningham said.

“They’re the kind of token lip service, box checking that the court of appeal says is not a reasonable step.”

Mr. McLeod, Alex Formenton, Carter Hart, Dillon Dubé and Cal Foote have each been charged with sexually assaulting E.M. at the hotel, after a Hockey Canada gala held to celebrate the world junior team.

Mr. McLeod faces a second charge of being a party to sexual assault. The five men have pleaded not guilty.

E.M. met Mr. McLeod at a London bar after the Hockey Canada event and the two went back to his hotel room and had consensual sex. E.M. alleges that Mr. McLeod later invited several teammates to the room without her consent who then took turns sexually assaulting her, slapping her and spitting on her. She said during earlier testimony that she feared for her safety, and felt under pressure to perform multiple sex acts, complying in order to get through the ordeal.

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Defence lawyers have asserted that it was E.M.’s idea to invite the other players to the room, that she asked them for sex and became frustrated when some did not respond, egging them on. Under cross-examination, E.M. conceded that, while she doesn’t remember if she did, it was possible she was saying things like “someone have sex with me” as a way to get through the night.

During closing submissions, Ms. Cunningham parsed the wording in the videos.

Ms. Cunningham said that in the first video, taken after some sex acts had occurred and before other players received oral sex, Mr. McLeod is forcing E.M. to say she is okay, but “We have no idea what she’s agreeing she’s okay with.”

“It’s also clear that she’s simply agreeing with Mr. McLeod in circumstances where he’s making it clear what he wants her to say: ‘You’re okay with this, though, right?’”

“Getting her to confirm some kind of broad advance consent to unknown acts, that is not a reasonable step to ascertain valid consent.”

In the second video, Ms. Cunningham told the court that E.M. was being forced to say, a few hours later, that the sex acts were consensual.

“What he’s trying to do is get her to say, after the fact, that it was all consensual,” Ms. Cunningham said.

“That’s how this video begins: It begins with Mr. McLeod saying ‘Say it.’ And then [E.M.] says it was all consensual.”

“This is quite clearly another example of [E.M.] saying what she knew Mr. McLeod wanted to hear.”

Riaz Sayani, one of Mr. Hart’s defence lawyers, disagreed with the Crown’s characterization of the evidence, saying the second video shows E.M. “beaming” and wearing a towel, speaking clearly and saying that she was sober and enjoyed herself.

During closing arguments, Justice Carroccia pushed back on points made by both sides, though she interjected more during the Crown’s final submissions this week. On Friday, she challenged the Crown’s assertion that E.M. was saying what she thought Mr. McLeod wanted, noting that because E.M. testified at the trial that she was intoxicated and does not remember the video, it’s difficult to say now how she felt.