Marathon cross-examination of E.M. continues at London hockey trial

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

London, Ont.– A lawyer for one of the five former members of Canada’s 2018 world junior hockey team suggested Friday that the complainant’s accounts to London police and Hockey Canada of what happened at a downtown London bar the night of the alleged sexual assaults contained a number of inaccuracies.

During continuing cross-examination of E.M., whose identity is protected by a publication ban, Daniel Brown, who is Alex Formenton’s lawyer, alternated between showing E.M. video clips of Jack’s bar the night of June 18, 2018, and copies of her statements to police days later and to Hockey Canada as part of a separate investigation in 2022.

Using the videos and statements to attack E.M.’s credibility and the reliability of her testimony, Brown explained to the court the chronology of what was seen on the video clips was different from what she said to investigators.

Brown is the third lawyer to cross-examine E.M. Lawyers for Dillon Dube and Callan Foote will still have opportunities to do so.

Michael McLeod, Carter Hart, Formenton, Dube, and Foote have been charged with sexually assaulting E.M. during the early morning hours of June 19, 2018, in McLeod’s hotel room at the Delta Armouries hotel. McLeod faces a second charge of party to the offence. The players have all pleaded not guilty.

The jury has seen a text message that McLeod sent to his world junior teammates after he and E.M. had consensual sex that said, “Who wants to be in a 3 way quick. 209-Mikey”.

At one point on Friday, Brown pointed out that in E.M.’s statements to police and to Hockey Canada she wrote that men bought her drinks throughout the evening. Surveillance video showed her dancing and then going with a friend to the bar where she purchased two shots.

“You said the reason why you got it inaccurate in 2022 was because it had been a long time and you hadn't looked at your 2018 statement,” Brown said, referencing E.M.'s testimony from earlier in the week. “Why is it that, three days after this, you're telling the police that you're not buying yourself any alcohol after the first drinks, when you are?”

“I don’t recall specifically saying I wasn't buying myself any more drinks. E.M. answered. "I just remember for a large portion for the rest of the night I wasn't paying for my own drinks."

Exchanges between Brown and E.M. appeared to be more spirited than during previous questioning by other defence lawyers.

“I’m not trying to trick you into saying something,” Brown said at one point.

E.M. pushed back, saying it wasn’t fair to expect her to “have a complete recollection of every single second” of the evening.

At another moment, after Brown asked E.M. only to directly respond to the questions he asked her, E.M. said, “It’s also my time to stand up for myself when I couldn’t that night, so I’d like to respond how I'd like to respond if that's alright.”

“No, it's not alright,” Brown said.

The judge then instructed E.M. to only answer the questions she was asked.

Brown also showed the jury a piece of paper with a 2018 photo of Sam Steel, a member of that year’s world junior team who now plays with the Dallas Stars. Handwriting under the photo said, “I don’t remember him from Jack’s but he was in the room and I performed oral on him.”

A London police officer wrote that note, recording E.M.’s comments at the time she reviewed photos of the players during a police interview in 2018, E.M. confirmed.

“So, you did wrongfully accuse him,” Brown said.

“Okay,” E.M. answered.

Following E.M.’s earlier testimony, in which she said she had eight Jägerbomb shots during the evening of June 18, 2018, and was more vulnerable to the players because she was drunk, Brown handed jurors two of the plastic shot glasses he said Jack’s used for those shots. Each glass can hold about a half ounce of liquid.

“If you thought you had up to eight Jägerbombs that night...what you're really saying is you had perhaps the equivalent of four shots of alcohol,” Brown said. “Perhaps you hadn’t drunk as much as you thought."

In 2018, E.M. was 20 and was about 5-foot-4 and weighed about 120 pounds, she has testified.

At one point on Friday, Brown showed the court surveillance video in which E.M. appeared to buy two shots called Jägerbombs," which include Jägermeister and an energy drink.

Brown suggested E.M. bought the drinks two at a time because she knew they were smaller than regular shots.

E.M. rejected Brown's suggestion and said, "They go down easy."

The exchanges between Brown and E.M. got more testy on Friday afternoon.

After Brown asked E.M. if she was initially attracted to Brett Howden, a player on Canada’s 2018 world junior team who now plays with the Vegas Golden Knights, E.M. said she did not get a good look at his face while they were dancing at Jack’s. Brown then suggested to E.M. that perhaps she would “go home” with any man so long as he was “a tall guy.”

“No, that’s not what I said,” she said.

A few minutes later, Brown played a video that showed E.M. dancing with Howden. After E.M. and Howden moved from the dance floor to the bar, the video then showed Howden walking away and returning with McLeod. E.M. then had a drink with McLeod.

Brown asked E.M. to explain “how a drink with Howden turned into a drink with McLeod.”

On several occasions, after E.M. said she couldn’t remember a fact, Brown asked her a question that was very similar in a different way

E.M. said Brown was trying to “discredit” her.

“I'm telling you what I know and then you're trying to make me second-guess everything I am saying,” E.M. said.

“Well, when you say something with certainty and then I ask you if that's something you're sure about, and then you all of a sudden don't have any certainty anymore,” Brown said. “I'm not trying to second-guess you. I'm just asking you whether or not you're actually giving us the truth. You're just guessing at all these answers.”

“I am giving my truth and I said what's true and then you push me for an answer,” E.M. said. “If I say I don't know, you'll discredit me. If I say something that's wrong, you'll also try to discredit me. I said what I recall from this moment. I was on the dance floor with Howden and we went over to the bar and that's where he introduced me and McLeod.”

Brown ended the week by reading the jury and E.M. a series of Facebook Messenger messages between E.M. and one of her friends the night of the alleged incident and the following day.

At 11:48 p.m. on June 18, 2018, the friend messaged E.M. while they were at Jack’s.

“Where are ya?” the friend wrote, according to Brown, who read the message thread aloud.

“Getting a drink at the back bar,” E.M. responded.

“Let me know if you want me to get you free from the guy…” the friend wrote at 12:00 a.m.

“ha ha, okay, thank you. I’m okay for now, but I’ll let you know for sure,” E.M. responded.

“I’ll come back soon,” E.M. wrote two minutes later.

Brown told the court that E.M.’s friend also tried to phone her but E.M. did not answer.

“Because I’m drunk and dancing,” E.M. testified.

At 12:15 a.m., E.M.’s friend texted her again.

“We’re leaving now…[name redacted]’s boyfriend gonna give us a lift. Do you want to come home with us?” the friend texted.

“No I’m having fun,” E.M. replied.

At 9:04 a.m. the next day, E.M.’s friend messaged again, writing, “hey girly, did you make it home ok?”

“Hey girly, yeah I did. Thank you. How about you, did you make it home? And is everything all right?” E.M. responded.

“I wasn’t lit enough for dollars [dollar beer night] last night,” the friend wrote.

“Good to hear, sorry I kept losing you guys. LOL and yeah true ha ha. We’ll have to go out some other time and get really lit,” E.M. replied.

Brown grilled E.M. on the text.

“You’ve just come home in the morning, claiming this is the worst night of drinking you’ve ever had,” Brown said. “You’ve never consumed so much alcohol and you’re making plans with [name redacted] to go out drinking again? Is that right?”

“That's right. This is a brand-new friend I've met at work,” E.M. answered. “She doesn't need to know my business. Again, I didn't want people to know what happened. So, I'm talking very normal. What am I supposed to say to her? I'm just being normal with her; with someone I've just met.”

Brown read more messages between E.M. and her friend. In the final message Brown read, E.M. wrote the players “were funny.”

“Again, that's me telling a brand-new person that I met,” E.M. testified. “I was not about to open up and tell her what happened after all of that...what do you want me to say? Something horrible just happened to me and I'm going to tell… a stranger what just went down? I was really embarrassed. I felt so much shame. Like, I was just messaging her as if nothing was wrong.”

“Shame and embarrassment for the choices you made,” Brown answered, signalling to the judge he was done for the day.

“No, I'd like to finish... I made the choice to dance with them and drink at the bar,” E.M. said. “I did not make the choice to have them do what they did back at the hotel.”

“Well, we'll get to that on Monday,” Brown answered.