Cross-examination of E.M. comes to a close after seven days

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

A lawyer representing Callan Foote, one of the five former members of Canada’s 2018 world junior hockey team who are on trial after being charged with sexual assault, suggested Tuesday the complainant in the case has had “an agenda” by referring to the defendants throughout the trial as “men” rather than “boys.”

Michael McLeod, Alex Formenton, Carter Hart, Dillon Dube and Foote have been charged with sexually assaulting a woman referred to in court records as E.M. in McLeod’s hotel room following a Hockey Canada event in London, Ont. McLeod faces a second criminal charge of being a party to the offence. The players, who face up to 10 years in prison if they are convicted, have all pleaded not guilty.

Julianna Greenspan, Foote’s attorney, was the fifth and final defence lawyer to cross-examine E.M. She began her time on Tuesday morning by suggesting that E.M. has purposefully identified the players as “men” during her testimony.

“You have specifically refused to use the term ‘boy’ at this trial, isn’t that right?” Greenspan said. "You refer to these individuals as ‘man’ and ‘men’ over and over and do not once, not one single time, refer to them as ‘boy’ or ‘boys.’ Do you accept that?"

"Yes I accept that...Don't know if that's a conscious decision I've been making,” E.M. answered. “They were at least 18, 19. They were men...that's why I've been referring to them as that." 

Greenspan read E.M. clips of the statement she made to London police on June 22, 2018, three days after the alleged sexual assault. In all of those clips, E.M. called the accused players “boys.”

“I’m going to put this suggestion to you…. The reason why you have so carefully changed your language is because you have come into this trial with a clear agenda,” Greenspan said.

“No, absolutely not. I am older, I understand more. They were men,” E.M. responded. 

All five lawyers for the defendants have constantly referred to them as “boys” throughout the trial.

The court has heard evidence that E.M. met some members of Canada’s 2018 world junior hockey team at Jack’s, a bar in downtown London during the late evening of June 18, 2018. E.M. has previously testified that while she was drinking and dancing with the players, who were at Jack’s following a Hockey Canada ring ceremony, she did not know that they were high-level national team players.

Greenspan suggested to E.M. that she did, in fact, know who the players were and that she must have heard that Canada won the 2018 world junior championship earlier that year.

"I just knew they were a group of hockey guys by the end of the night. I didn't know they were world junior players, and I wouldn't have cared, frankly,” E.M. testified.  

Greenspan showed E.M. a video of her at Jack’s Bar in which she speaks with a bouncer standing near the back of the bar as the hockey players arrive at the front entrance. Greenspan suggested to E.M. that the bouncer told her about the players’ arrival.

E.M. testified that never happened.

“As someone who's running security, I feel you don't really go around announcing that there's a group like that around to just anybody,” E.M. testified.

During the afternoon session, Greenspan suggested to E.M. that she was not as drunk as she has testified she was on the evening of June 18, 2018. Greenspan said E.M. has had to maintain the “narrative” that she was drunk because of her family and her boyfriend.

“I'm going to suggest that it is because if you do not follow this mantra of being so drunk, you knew that your behaviour would not be accepted by others,” Greenspan asked. “Do you accept that?"

"I think that my behaviour was that way because I was drunk and I think the behaviour of others, that should be questioned," E.M. responded.  

Greenspan suggested that E.M.'s claim during the trial that she did not eat before going out to dance and drink the evening of the alleged incident was the first time in seven years that she has publicly shared that fact.

Greenspan also showed E.M. and the jury a pair of shoes that were the same make and model as the ones E.M. wore the evening of the alleged incident. While Greenspan called the shoes stilettos, E.M. said she would call them heels. The shoes could not be easily slipped on and off and had a zipper on the back.

Greenspan asked E.M. whether she put her shoes back on when she was trying to leave McLeod’s hotel room. When E.M. said she did not recall if she had put on the shoes, Greenspan suggested that E.M. didn’t actually want to leave.

“You were never planning on leaving, obviously without your shoes and you weren't really getting dressed to leave,” Greenspan said. 

“Why else would I be trying to get dressed and go to the door?” E.M. said.

“You were putting on, what I would suggest, an act to say: ‘Okay, I’m leaving,’ to put the focus back on you. Do you agree?” Greenspan asked. 

“No, not at all,” E.M. responded. 

“I’m going to suggest that it worked... because what happened was the attention was put back on you and you resumed interacting with the boys in the room," Greenspan said. 

“No, I don’t agree with it. This was never attention that I was asking for. I was trying to leave. I tried multiple times to do so,” E.M. answered.

Greenspan suggested some of the men who gathered in McLeod's hotel room were not paying attention to the then-20-year-old E.M., even though she was naked, because they were discussing other subjects and celebrating their world junior championship win together.

“Let’s get right down to the chase,” Greenspan said. “The guys who came into the room and were hanging out in the room were all there just for you?” 

“They were objectifying me,” E.M. testified. “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 to be in the room. Literally any one of those men could have stood up and said, ‘This isn’t right.’ No one did...They thought I was fair game.”

Greenspan also read E.M.’s initial statement to police on June 22, 2018, about one of the players doing the splits over top of her and putting his penis in her face while she was lying on the floor.

During the Crown’s opening statement, Crown attorney Heather Donkers told the jury that Foote had done the splits overtop of E.M., grazing his genitals over her face.

Greenspan suggested on Tuesday that one of the players doing the splits was a “pretty cool thing” and described it as a “party trick.” The lawyer said that as the players were all “goofing around” in McLeod’s hotel room, one of the players said, “Hey Footer, do the splits.”

E.M. then laid down on the floor and encouraged the act, Greenspan suggested.

“I don’t know who in their right mind does that,” E.M. said, shaking her head.

Greenspan then suggested that the player who did the splits was wearing shorts.

“I think I can clearly remember having a penis in my face when someone is doing the splits on me…,” E.M. said. “I don’t think this would have stood out as shocking to me in my mind if he did have pants or shorts on.” 

When the player was over top of her, E.M. pulled him closer, the lawyer said.

“When you touch, and he recoils from you, he gets up and walks away,” Greenspan said.

"I don't remember it happening like that," E.M. testified. 

Tuesday afternoon marked the end of the cross-examination after seven days. The Crown will have an opportunity to redirect on Wednesday.