Crown takes aim at purported consent video as London hockey trial draws to a close

Content advisory: This article includes graphic language and details of alleged sexual assault

LONDON, ONT.– Crown attorney Meaghan Cunningham took aim at a purported consent video during her closing argument Friday, arguing the video is evidence of how Michael McLeod badgered the complainant to say what he wanted as he filmed her.

Cunningham discussed the filming of that video and Canada’s laws on consent during her closing statement on the final day of the two-month sexual assault trial of McLeod, Carter Hart, Alex Formenton, Dillon Dube and Callan Foote.

The five players are charged with sexually assaulting a woman referred to in court documents as E.M. in McLeod’s hotel room following a Hockey Canada ring ceremony to celebrate their 2018 world junior championship months earlier. McLeod faces a second charge of being a party to the act. The players have all pleaded not guilty.

The Crown has alleged that after E.M. had consensual sex with McLeod, he surreptitiously invited his teammates to his room and that she was sexually assaulted for hours.

The Crown has alleged that Formenton had sex with E.M. in the bathroom, that McLeod, Hart and Dube received oral sex from the complainant, that Dube slapped E.M.’s naked buttocks, that Foote did the splits over E.M.’s head and “grazed” his genitals over her head, and that McLeod had sex with E.M. for a second time in the hotel room bathroom.

E.M. testified during the trial that as many as 11 players were in the room over the course of the evening and that some players spat on her and slapped her. At one point, one of the players suggested she put golf balls in her vagina and asked aloud if she “could take” an entire golf club inside of her, E.M. testified. She has said she went into an automaton state and did whatever she had to do to get out of the room safely.

In one video filmed by McLeod just after 3 a.m. on June 19, 2018, McLeod said, “You’re okay with this though, right? You’re okay with this?”

E.M. responded, “I’m okay with this.”

In a second video filmed at 4:26 a.m., E.M.’s torso was covered by a towel.

After McLeod said, “Say it,” E.M. answered, “This was all consensual. Are you recording me? Okay good.”

After McLeod said, “What else?” E.M. responded, “You are so paranoid. Holy. I enjoyed it. It was fine. I’m so sober. That’s why I can’t do this right now.”

E.M. testified that while she didn’t specifically remember the videos being filmed, McLeod had been “hounding” her to say she consented.

Cunningham asserted to Justice Maria Carroccia on Friday morning that the videos are “token lip service box checking,” and not evidence of any reasonable steps by the defendants to sincerely ascertain valid consent.

“Your Honour should find that when Mr. McLeod is saying, ‘Say it,’ and ‘What else,’ that indicates he's the one directing what [E.M.] should say in this video,” Cunningham said. “If she has been begging people for sex, calling them out for not doing stuff with her, why would he be telling her to say, ‘It's all consensual and it was fine. I enjoyed it’? Wouldn't we expect him to get her to confirm that she was the one asking people to do stuff, or to confirm that she was begging for sex all night?”

Cunningham pointed out that when the first video was recorded, E.M. was “extremely vulnerable.”

“She's naked, on her knees, wiping her eyes, having just been upset and calmed down… with men all around her speaking loudly,” Cunningham said. “Carter Hart is saying, ‘I’ll get Fabs, I’ll get Fabs.’ In that context, getting her to confirm some kind of broad advanced consent to unknown acts, that is not a reasonable step to ascertain valid consent.”

(The trial has heard that when the first video was recorded, Hart was trying to recruit Team Canada teammate Dante Fabbro to come the room to have sex with E.M.)

Cunningham also spent time Friday morning discussing what Canadian law says about consent and about why, in her opinion, the judge shouldn’t accept a defence from the charged players that they had an honest but mistaken belief in E.M.’s consent to the sexual acts.

Lawyers for each of the five defendants have argued E.M. consented to the sexual activity in McLeod’s hotel room.

Cunningham said the evidence in the case has established that each of the accused knew that E.M. had not expressed consent to the sexual acts in McLeod’s hotel room and that the defendants had been reckless and willfully blind to her lack of consent.

“At no time did anyone attempt to engage in a sincere conversation with [E.M.] about what she truly wanted to happen,” Cunningham said. “At no point does anyone say, ‘Hey, do you want to slow this down?’ Your Honour has heard from the men in the room that all of them thought her conduct was on some level, bizarre, strange, outrageous. But no one says they ever asked her, ‘Are you feeling okay? Is this what you really want to be doing?’”

Canadian law demands that in cases where the accused does not know or has no sexual experience with a complainant, where the accused knows the complainant is or appears to be intoxicated and/or vulnerable, then “greater care” must be taken to obtain consent, Cunningham said.

“[E.M.] was incredibly vulnerable,” Cunningham said. “In that room, there was a very high level of vulnerability. She was naked, and there were 10 of them. They all knew each other, and she was a stranger to all of them. These are circumstances where the law demands more steps be taken than in other situations.”

If a reasonable person would have taken more steps than the accused, then a defendant’s argument that they had an honest but mistaken belief of consent fails, Cunningham said.

“A reasonable person in those circumstances would have taken a further simple step to ask for consent,” she said. “A reasonable person would have taken one more single step.”

Crown attorney Heather Donkers also addressed Carroccia on Friday morning, discussing what she said were inconsistencies in the credibility and reliability of each of the five defendants in the case.

Donkers began her address by discussing Hart’s involvement in the alleged sexual assault.

Minutes after McLeod texted his 19 Team Canada teammates asking if they wanted to be in a “3 way,” Hart responded, “I’m in” without knowing anything about the woman involved. When he arrived in McLeod’s hotel room, Hart did not take any steps to determine if E.M. was consenting to any of the sexual activity and didn’t even ask her name, Donkers said.

Hart, who was the only defendant to take the stand in the case (defendants are not required to do so), testified that he accepted one of E.M.’s “offers” and asked her for a “blowie,” slang for oral sex. The Crown has argued E.M. did not offer Hart or any of the other players oral sex.

“[Hart] did not have a conversation with her, either to ascertain what brought her there, what she was interested in, what her limits were, what contraception should be potentially used,” Donkers said.

“Instead, he was presented with the opportunity that he was looking for all night — to have sexual activity with a woman — and in his excited state, rather than take the steps that would be reasonable in the circumstances, Mr. Hart was reckless as to whether E.M. was consenting to the sexual act of oral sex with him, specifically.”

Donkers said McLeod was also guilty of sexual assault and that he was not a credible or reliable witness because he lied to London police about inviting his teammates to his hotel room.

The Crown pointed out that Dube gave a statement to London police in 2018 and discussed receiving oral sex from E.M. but did not say that he slapped her on the buttocks. He knew that by slapping E.M., he had “crossed the line,” Donkers said.

“He knows that goes beyond the bounds of what you could reasonably portray as consensual in the circumstances,” and the omission [to police] should be seen as a fabrication, Donkers said.

She also said that Dube called his teammates and told them not to tell police about seeing him slap E.M. Those phone calls were “consciousness of guilt,” she said.

“Mr. Dube took absolutely zero steps to make sure that it would be reasonable in the circumstances to ensure that she was consenting to the butt slapping at the time that he did it,” Donkers said.

Donkers said that Formenton is guilty of sexually assaulting E.M. in the bathroom of McLeod’s hotel room.

“She went into the bathroom, he followed her. There wasn't any conversation. He put on a condom, bent her over the bathroom counter, and he penetrated her vagina with his penis...removed the condom and ejaculated into her mouth,” Donkers told Carroccia. “She was not thinking of having sex with Mr. Formenton in terms of a choice... It just felt like a continuation of what was already going on.”

Donkers asked the judge to consider the evidence of Brett Howden, who was a Crown witness in the case and has not been accused of criminal wrongdoing.

In 2022, Howden told a Hockey Canada investigator that he remembered Formenton saying, “Will I get in trouble for this? Am I okay to do this? Do you think it’s fine? Am I allowed to do this?”

Donkers then turned her attention to the criminal charge against Foote. She said that the evidence has established that Foote did the splits overtop of E.M. while he was naked. While Foote’s lawyer Julianna Greenspan told the court that Foote did the splits because his teammates were urging him to, and that he had clothing on, Donkers said that doesn’t make any sense.

“If all they wanted was for someone to partway squat over her torso, anyone of the men already in the room could have done that,” Donkers said, adding that Howden and Tyler Steenbergen, who has not been accused of criminal wrongdoing, both testified that Foote phoned them both and asked them not to tell investigators what he had done in the room.

Cunningham took over from Donkers to address the allegation that McLeod was “abetting” the sexual assaults and “organized this whole sordid night.”

“Knowing that E.M. had expressed no interest in or willingness to engage in sexual activity with anyone other than him, he then begins a campaign to bring men into the room to do that very thing," Cunningham said. “All of his actions are intended to leave his teammates with the impression that she’s willing to engage in that sexual activity.”

Cunningham then suggested to Carroccia that many of the defence arguments in the case have relied on rape myths. Cunningham referenced a claim by Fomenton’s lawyer Daniel Brown that he was of high character because he had been selected by Hockey Canada to represent the country.

“Many people who commit sexual assault are hard-working, highly valued members of their community whom everyone regards as being of good character,” Cunningham said.

Cunningham finished her closing statement by quoting E.M.’s testimony about what she said happened in McLeod’s hotel room.

“They were objectifying me,” E.M. testified during the trial. “They were literally in there laughing at me. They could have let me leave if they weren’t in there for me, or they could have left. They didn’t need me to be in the room. Literally any one of those men could have stood up and said, this isn’t right. And no one did. No one noticed that. No one thought like that, they didn’t want to think about if I was actually okay, or if I was actually consenting.”

Cunningham said E.M.’s testimony supported the argument that the players were willfully blind and reckless and never ensured that E.M. consented to any of the sexual acts.

On Friday afternoon, the five defence teams responded to the Crown’s closing argument. (Each of the defence teams had the opportunity to make their formal closing arguments before the Crown did.)

While E.M. testified she was terrified in McLeod’s hotel room, McLeod’s lawyer, David Humphrey, argued that E.M. “was communicating consent throughout” the evening.

Humphrey reminded Carroccia that E.M. told a London police officer in 2018 that when she was on a bedsheet on the floor of McLeod’s room, she “may have liked the attention a little bit.”

Hart’s lawyer, Riaz Sayani, suggested to Carroccia that E.M. wasn’t traumatized at all during the alleged incident in McLeod’s hotel room and that she didn’t say anything about being scared until 2022, four years after the incident.

Sayani also asserted that the video filmed by McLeod at 4:25 a.m. depicts E.M.’s true demeanour. He said she was “beaming in a towel, speaking clearly and saying she is sober, and enjoyed herself.”

Formenton’s lawyer, Hilary Dudding, said that rape myths should not be used by either the defence or the prosecution. Dudding said that prosecutors tried to leave an impression that a woman assertively asking for sex was “so inherently bizarre and odd that it requires some kind of explanation.”

“It’s stereotypical thinking about what kinds of sex people like and don’t like and that women are okay or not okay with,” Dudding said.

Carroccia has said she will announce her verdicts in the case on July 24 at 10 a.m.