E.M.’s credibility questioned as closing arguments begin at London hockey trial

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

When Michael McLeod met with a London police officer in November 2018 to discuss an alleged sexual assault five months earlier, he did not suggest that the complainant had asked him to invite other Team Canada players back to participate in group sex, an assertion that has been a key pillar of McLeod’s defence during this trial, his lawyer has conceded.

David Humphrey, in making his closing submission in the high-profile sexual assault trial in London on Monday, told Justice Maria Carroccia that McLeod was not yet facing criminal charges at the time he met with London Police Service sergeant Stephen Newton.

“I acknowledge that he did not tell Detective Newton in his interview that [E.M.] had expressly asked him to invite players to the room, and that he sent text invitations in response to her request,” Humphrey said. “He may not have prepared for his interview as thoroughly, for example, as an accused who’s told he’s a suspect and told there are grounds to lay a charge and he’s in real or present danger.”

McLeod, Carter Hart, Dillon Dube, Alex Formenton, and Callan Foote are charged with sexually assaulting a woman in McLeod’s hotel room in the early morning hours of June 19, 2018, following a Hockey Canada ring ceremony to celebrate their 2018 world junior championship months earlier. The woman is referred to as E.M. in court documents and her identity is protected by a publication ban. McLeod faces a second charge of being a party to the act.

The players have all pleaded not guilty. Their lawyers have alleged that everything that happened in McLeod’s hotel room was consensual.

While London police closed their initial investigation in February 2019 without laying charges, the case was reopened in July 2022, and the five defendants were charged in January 2024.

The trial has heard that after E.M. and McLeod engaged in consensual sex, McLeod sent his teammates a text at 2:10 a.m. that said, “Whose up for a 3 way quick. 209-mikey.”

“I’m in,” Hart answered at 2:19 a.m.

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 autonomous state and did whatever she had to do to get out of the room safely.

During his interview with Newton, which took place in the presence of Humphrey at his Toronto law office, McLeod never mentioned his group text message and never made the allegation that E.M. had asked to have group sex. (London police did not obtain McLeod’s text message to his teammates until 2022.)

Newton never asked McLeod in the interview to do “a deep dive” on his phone to see if there were any relevant text messages, Humphrey said.

“What [McLeod] was really doing was only inviting a limited number of people to come to his room,” Humphrey said on Monday. “He was as surprised as she was by the number of people who showed up.”

The court has also seen two purported consent videos that were recorded by McLeod during the early-morning hours of June 19, 2018.

In one video filmed just after 3 a.m., McLeod said, “You’re okay with this, right? You’re okay with this?”

E.M. responded, “I’m okay with this.”

In a second video filmed at 4:26 am, E.M.’s torso was covered by a towel. She said, “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.”

Humphrey told Carroccia that McLeod recorded the videos in a “perfectly responsible manner.”

“The video captured her mood, she is seen smiling,” Humphrey said. “Confirming she was happy, and she was fine with what was happening. It’s fortunate he took this video.”

Humphrey, who laughed several times on Monday as he recounted E.M.’s testimony, told the court the defendants should be acquitted because of E.M.’s numerous reliability and credibility issues.

“This is a case where the defence has an embarrassment of riches, a cornucopia of compelling credibility and reliability concerns in E.M.’s testimony,” Humphrey said in front of a packed courtroom.

“This is not criticism of her,” he said. “It’s a natural phenomenon commonly seen in young people who, under the influence of alcohol, make regrettable choices and give into sexual attractions. But as sobriety returns, regret and embarrassment often emerge. Concern for personal reputation is natural.”

Carroccia is not expected to immediately announce verdicts following closing submissions, lawyers involved in the case said. It could take weeks or months before the judge finishes writing her reasons for her judgments. At that point, the defendants will be notified to return to court for the judge to read her verdicts.

Humphrey began proceedings on Monday morning saying he would address issues related to the issue of consent in the case.

According to Humphrey, E.M. told her mom a “white lie that snowballed into a criminal investigation.”

E.M. fabricated a story of sexual assault because she didn’t want her family and her boyfriend to know she had gotten drunk and engaged in group sex, Humphrey asserted.

“She wants to present herself as a victim rather than a person who is responsible for her own choices,” Humphrey said. “As her drunkenness diminished, she may not have wanted to acknowledge to others or to herself that she had just been sexually adventurous in a hotel room with multiple men she had just met that night.”

E.M. has taken “no personal responsibility” for her actions and defaults to “claims of drunkenness and fear as justification for all those actions,” Humphrey said. “She is not an honest or reliable witness” and has “motive to fabricate.”

While E.M. initially told London police that she was too drunk to consent, she later adapted her narrative in 2022 in her civil lawsuit against Hockey Canada to say that she was “too terrified to consent,” Humphrey told the court.

E.M. filed a $3.55 million lawsuit against Hockey Canada, the Canadian Hockey League, and eight “John Doe” defendants in April 2022. It was settled weeks later and subsequently reported in the media.

“It becomes a national cause celebre,” Humphrey said, adding that the players were “burdened” with "years of a one-sided public narrative.”

“[E.M.] has an interest to support the narrative she gave her family, and she used it to secure a settlement from Hockey Canada that is now known by all. It is against that backdrop that your honour must weigh her evidence,” Humphrey said.

E.M. has testified that she was terrified in the room after players discussed the golf clubs and balls in a sexual context and that she was in an autonomous state as the men made her perform sex acts.

Humphrey told Carroccia that E.M.’s claims were “crazy” and “preposterous.”

“If you're terrified, you do the minimum to avoid the harm,” Humphrey said. “You maybe acquiesce, you maybe submit. You do the minimum to avoid harm. You may give into the demands... It’s preposterous to say, ‘Somehow I came up this concept, the way to get out of the room is to invite everybody to have sex with me.’”

The court has seen evidence that 11 players who were in McLeod’s hotel room in the early morning hours of June 19, 2018, were involved in a group text seven days later after they learned Hockey Canada and London police were looking into the alleged sexual assault.

During that text thread, several players discussed telling investigators that E.M. had been asking the players to have sex with her.

During her testimony, E.M. said that she couldn’t recall making those sexual invitations to players, but those words didn’t sound like something she would have said.

If E.M. was really afraid in the hotel room, she would have told London police in her first interview on June 22, 2018, Humphrey said.

“If she were scared in the room, and if that was the real reason for her act of participation in the sexual acts, she would have said so,” Humphrey said. “She didn’t say she was scared or afraid because she was not scared or afraid.”

On Monday afternoon, Hart’s lawyer, Megan Savard, addressed Carroccia, asserting that her client, who was the only defendant to testify in the case (defendants are not obligated to testify) should be acquitted.

“The legal question is, ‘Did [E.M.] consent and did Mr. Hart reasonably believe she was doing so?' I say Mr. Hart should be acquitted,” Savard said. “His evidence was exculpatory.”

Savard reiterated to Carroccia that E.M. performed oral sex on Hart for a limited time, because of “embarrassment or performance issues” and said that Hart asking E.M. for a “blowie,” a reference to oral sex, was “an effective and inoffensive way to communicate to your partner that you don’t want the vaginal sex that they’ve been offering.”

The trial heard from Hart and four players who have not been accused of criminal wrongdoing that E.M. repeatedly asked players to have sex with her when she was in McLeod’s hotel room.

Savard also suggested that Hart’s testimony did not always help his co-defendants and ran counter to a stereotype about hockey players.

“It is this insidious idea that hockey players, by virtue of the fact that they play closely together on a team in professional sports, naturally protect their own, circle the wagon, form a perjury phalanx, so to speak,” Savard said. “When you see how unhelpful [Hart] is to counsel for the co-defendants, in virtually every other instance, the idea that he’s here to help the defence, it falls apart.”

For instance, Savard explained that when he was being cross-examined by lawyers for the other charged players, Hart testified he didn’t remember what E.M. was doing before Foote did the splits over top of her and testified that he didn’t recall what he talked about with McLeod when the two players spoke on the phone after a group text chat on June 26.

“If he were out to help his friends those cross-examinations would have looked very different,” Savard said. “He didn’t become a ‘yes man’ for the defence.”

At the end of the day, Savard discussed what the court will likely hear from Crown attorney Meaghan Cunningham during her closing statement.

Savard said that Cunningham provided defence lawyers with a copy of her planned submissions and that she plans to argue that E.M. never invited the players to engage in sex with her, counter to the prior testimony of witnesses such as Tyler Steenbergen and Brett Howden in the case.

Savard said the judge should discount that argument because accepting it would mean presuming that Steenbergen and Howden were lying. The Crown did not ask the court for permission to cross-examine either player to confront them with the assertion they were lying, Savard said.