Formenton’s lawyer accuses E.M. of lying under oath

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

LONDON, ONT. – E.M., the complainant in the sexual assault trial of five former members of Canada’s 2018 world junior hockey team, was an unreliable witness who lied under oath and changed her story as new facts about the alleged sexual assault emerged, a defence lawyer asserted on Tuesday.

Alex Formenton’s lawyer, Daniel Brown, was the third defence lawyer to address Justice Maria Carroccia and make his closing statement in the high-profile case. After Brown finished making his submission early Tuesday afternoon, Carroccia told the court that she would announce her verdicts on July 24.

Brown, who followed lawyers for Michael McLeod and Carter Hart, attempted to dismantle E.M.’s account of a night in London in June of 2018 that led to the players being charged in January of 2024.

McLeod, Hart, Formenton, Dillon Dube, and Callan Foote are charged with sexually assaulting E.M. in McLeod’s hotel room in the early morning hours of June 19, 2018, following a Hockey Canada ring ceremony and a night of dancing and drinking at a downtown London bar. McLeod faces a second charge of party to the sexual assault. All of the players have pleaded not guilty.

Brown accused E.M. of perjury, saying that when he asked her during cross-examination how much she weighed in June 2018, E.M. answered 120 pounds. Brown later showed E.M. her medical records documenting that she had weighed 138 pounds at that time. E.M. admitted during her testimony that she was aware she weighed more than 120 pounds in 2018 but wanted to keep her evidence consistent with what she had previously told investigators, Brown said.

Brown said E.M. was also untruthful during her testimony when she discussed whether she slipped and fell at Jack’s bar in front of McLeod. E.M. also wasn't honest when she testified about how often she went to Jack's bar, Brown said.

“She didn’t just get things wrong, she lied under oath,” Brown said. “She does not respect the oath… It should give your honour concerns that she has done this elsewhere.”

Brown highlighted E.M.’s previous testimony in which she alleged that a number of players spit on her, hit her, and placed hands on her to redirect her back into McLeod’s hotel room when she attempted to leave. That testimony, Brown said, has been uncorroborated.

“Your honour should be quite suspicious of and doubt [E.M.’s testimony],” Brown said. “You can’t rely on what she says under oath.”

Brown argued that E.M.’s story, as it evolved, was not rooted in trauma but in regret, and, eventually, in calculation.

He said E.M.’s demeanour on the night of the alleged incident was not consistent with someone too drunk to consent to sex. Instead, Brown suggested, E.M. consumed enough alcohol to lower her inhibitions and perhaps make her “moderately intoxicated,” but not enough to make her too intoxicated to consent.

“Consent to sexual activity with a near stranger is still consent,” he said. “Consent provided while impaired but not incapacitated is still consent. Consent provided to group sexual activity is still consent. Consent provided by one woman to more than one man at a time is still consent.”

Brown told the judge that after E.M.’s mother found her crying in the shower after she returned home on the morning of June 19, 2018, E.M. realized she needed to concoct a story that people had done “bad things” to her. E.M. wanted to save her relationship with her boyfriend, Brown said.

“She created a lie, and the lie was that she didn’t make the choice willingly to leave the bar and go to the hotel with Mr. McLeod,” Brown said. “If the choice wasn’t hers, if it was someone else’s fault, if she was sexually assaulted, she could be absolved of her conduct.”

Brown argued that E.M.’s narrative shifted over time and was inconsistent with video and witness evidence. According to Brown, E.M. first claimed to be too intoxicated to consent, that players had plied her with alcohol, that the players separated E.M. from her friends, and that E.M. had no meaningful opportunity to escape from McLeod or say no what was happening in the hotel room.

Brown said those claims were not supported by surveillance video footage from the hotel and weren’t corroborated by any other witnesses. Brown argued that E.M. can be seen walking without stumbling or assistance. The video, Brown said, was enough for London Police Service sergeant Stephen Newton, who is now retired, to conclude in February of 2019 that charges should not be laid.

But even after Newton advised E.M. that he was closing the criminal case, “Her quest for justice is just starting,” Brown said. “She wants money. She wants a lot of money. She wants $3.5 million.”

In April 2022, E.M. filed a $3.55 million lawsuit against Hockey Canada, the Canadian Hockey League, and eight “John Doe” player defendants. Hockey Canada settled that lawsuit weeks later without informing any of the players about the litigation.

Brown presented the court with what he said were the five mental states described by E.M. during her testimony: that she was too drunk to consent; that she experienced a dissociative state and acted like an automaton; that she acted out of fear and terror; that she was a people pleaser unable to say no; and that she was coerced to engage in sexual acts.

Brown argued there was a sixth possibility: that E.M. was enthusiastically consenting.

The trial had heard that E.M. and Formenton had sex in the bathroom of McLeod’s hotel room. Brown insisted it was consensual.

“She repeatedly asked for someone in the room to have sex with her and Mr. Formenton agreed to do so,” Brown said. “They did this because she said she wanted to have sexual intercourse, and he did this because he wanted to. They both agreed.”

Brown characterized the encounter as straightforward. “It’s not complicated,” he said. “They were two young people who both wanted to have sex.”

Brown asked the judge to consider Formenton’s lack of a criminal record when she was considering her verdict. Brown also said Formenton’s good character could be seen by the fact he was selected by Hockey Canada to play for the national team.

“Hockey Canada scrutinizes the people that are on these teams and they wanted to ensure that they had character people on the team,” Brown said, adding that Formenton agreeing to play for Canada was a “volunteer exercise on behalf of his country...something your honour can consider.”

Closing arguments are expected to conclude this week.