Crown continues closing argument at London hockey trial

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

LONDON, ONT. – Crown attorney Meaghan Cunningham asserted Thursday that defence lawyers for five former members of Canada’s 2018 world junior hockey team have inappropriately trumpeted rape myths during the high-profile sexual assault trial.

Canadian courts have increasingly rejected what experts call “myth-based reasoning,” – the mistaken belief that a “real” victim would fight back, remember everything, and behave a certain way, Cunningham said, noting that the defence lawyers in the London hockey trial pressed the complainant in the case during cross-examination about why she didn’t call for help, or lock herself in the hotel room bathroom if she felt threatened.

“Some people will fight or resist,” Cunningham said as she continued her closing argument that started on Wednesday. “Some people will flee; some people will freeze. Some people will appease or fall back on habits or reflexes… some people will dissociate or detach from reality. Some people will do a combination of all these things. These are all normal, predictable responses.”

Cunningham suggested to Justice Maria Carroccia that the complainant in the case, E.M., whose identity is protected by a publication ban, did what she had to do to survive an “extremely vulnerable and potentially dangerous situation,” when she emerged naked from the bathroom in Michael McLeod’s hotel room in the early-morning hours of June 19, 2018, and a number of men were in the room.

McLeod, Carter Hart, Dillon Dube, Alex Formenton and Callan Foote are charged with sexually assaulting 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.

During his closing statement earlier this week, McLeod’s lawyer, David Humphrey, said it was “preposterous” for E.M. to suggest that she offered sex as a way to get out of McLeod’s hotel room safely.

“I submit offering sex can absolutely be appeasement,” Cunningham said Thursday. “Also, that can be a normal response for someone in a highly stressful, unpredictable event. It would be wrong to conclude that it's preposterous that anyone would respond in that way. That is the prohibited myth-based reasoning.”

Cunningham referred to the 2024 sexual assault trial of former Hedley frontman Jacob Hoggard. During that trial, clinical psychologist Dr. Lori Haskell testified that experiencing a traumatic event such as a sexual assault can cause memory to fragment, can cause dissociation, the loss of executive function, and thought impairment.

Cunningham told the judge that E.M. remained “thoughtful, careful and fair,” during her seven days of cross-examination.

“She certainly did not give the impression she was just making things up as she went on… it is clear listening to her testify that she was trying to be accurate and precise when she could be, within the limitations of her memory,” Cunningham said.

Cunningham said the defence repeatedly incorrectly paraphrased E.M.’s testimony and then tried to trap her.

During his cross-examination, for instance, Formenton’s lawyer, Daniel Brown, suggested to E.M. that she had testified players forced her to drink alcohol, Cunningham said, adding that what E.M. actually testified was that someone held up an alcoholic shot to her face and poured a shot in her mouth.

“Forced her to drink is not what she said,” Cunnigham said, adding that Brown also improperly suggested to E.M. that she had testified she was stalked by McLeod through the night at Jack’s bar when E.M. had never used that language.

Cunningham talked about how often during E.M.’s cross-examination, defence lawyers “laughed and scoffed at her.”

“If she uses the same language at multiple points, then it's contrived, but if she uses different language, she's inconsistent,” Cunningham said. “If she's too emotional, she's combative, if she's not emotional enough, she's rehearsed. If she refuses to agree with suggestions, she's combative and difficult, but if she does agree, then she doesn't know her own mind. If she uses the same language at multiple points, then it's contrived, but if she uses different language, she's inconsistent.

“This all finds its roots in this myth of the ideal victim, that there is there is a right way for someone to look and sound when they're describing sexual assault, that there's a correct way or a good way for a real victim to testify.”

Cunningham told Carroccia that the defence lawyers’ choice of language throughout the trial was important.

Defence lawyers at times referred to E.M. as an “older woman” and the defendants as “boys,” Cunningham said, adding that at one point, Foote’s lawyer Lisa Carnelos referred to the them as “young boys.”

“This is a juxtaposition that infantilizes the defendants and leaves the impression that E.M. was more mature and bears a greater responsibility for her actions than the defendants do,” Cunningham said.

Cunningham insisted that E.M. had no financial motive to move forward with a criminal trial because she received a settlement from Hockey Canada in early 2022, weeks after filing a $3.55 million personal injury lawsuit.

“She already had her money,” Cunningham said. ““It’s illogical. [E.M.] could have taken her money and run. She did not need to come to this trial and subject herself to nine days of testimony to keep that money… There is simply no evidence of financial motive here.”

Cunningham also said she disagreed with an assertion from Humphrey in his closing statement that E.M. got caught up in a false narrative and needed to maintain it to save face with her boyfriend and mother. 

“She wasn’t swept along,” Cunningham said. “She understood that the choice was hers. It was always within her control to start or stop [her participation in the police investigation]. It demonstrates she was in the driver’s seat.”

On Thursday afternoon, Cunningham asked Carroccia to consider Brett Howden’s statement in 2018 to Danielle Robitaille, a Toronto lawyer hired by Hockey Canada to investigate the alleged incident.

“As I was leaving with a couple guys, I remember hearing her crying and I didn’t know why. I was like, this can’t be good, but I don’t know what happened, so I just went to my room,” Howden told Robitaille. “I heard her kind of weeping. I didn’t know what was going on. I didn’t want to be part of anything.”

“Weeping,” Cunningham said. “This tells us this is more than just a little sniffling, more than a few tears. It doesn’t make sense on the theory the defence is putting forward for why she was upset: that no one would have sex with her. It does not make sense that would cause her to weep or even cry. It just doesn’t make sense.”

Cunningham urged Carroccia not to accept the narrative that E.M. was the sexual aggressor with the players.

The Crown pointed to a June 26, 2018, group text message involving 11 players who were in McLeod’s hotel room during the alleged sexual assaults and had learned that Hockey Canada and possibly London police were investigating.

“We all need to say the same thing if we get interviewed,” McLeod wrote to the group at 8:09 p.m. “Can’t have different stories or make anything up.”

Two minutes later, Jake Bean, who has not been accused of any criminal wrongdoing, wrote: “No, boys. Like we don’t need to make anything up. No one did anything wrong. We went to that room to eat. The girl came, she wanted to have sex with all of us. No one did. She gave a few guys head, and then we got out of the room when things got too crazy.”

“This is the players getting their stories straight,” Cunningham said. “They are padding the record. They know this is a record being created…  Through this process of the group chat, people are putting objectively untrue narratives and this is getting morphed and morphed. Certain details have become entrenched in their narrative.”

Later on Thursday, Cunningham played a consent video filmed by McLeod just after 3 a.m. on June 19, 2018, in which McLeod said, “You’re okay with this though, right?”

E.M. responded, “I’m okay with this.”

Cunningham said McLeod’s use of the world “though” was “quite telling.”

“The use of the word ‘though’ tells us that prior to this, E.M has given some indication that she wasn't okay with something,” Cunningham said. “And we don't know what ‘this’ is. It could be being naked in the room, it could be staying in the room, it could be any number of things. We have no idea what she's agreeing she’s okay with… If E.M. was actually offering and even taunting people into receiving oral sex, Mr. McLeod would not have framed it as asking her if she's ‘okay with this, though, right?’”

At one point on that video, an unidentified man can be heard saying, “This girl is f--king crazy.”

Cunningham suggested to Carroccia that that statement alone was an indication that the men in McLeod’s hotel room should have been taking more affirmative steps to ensure that E.M. was consenting.

The Crown also questioned why, if E.M. was truly enthusiastically consenting and begging players for sex and even taunting them, McLeod didn’t make a recording of that behaviour.

Later Thursday afternoon, Cunningham pointed to a text message exchange on June 20, 2018, after McLeod learned that the London police had been contacted. At one point, McLeod wrote to E.M., “You said you were having fun??”

“Surely, if [McLeod] knew that she had said things that even more explicitly communicated her consent, and in fact, communicated her enthusiastic desire for sexual activity that took place, he would have mentioned that here instead,” Cunningham said.

“The words of Mr. McLeod on that video, the words of Mr. McLeod in this chat, are also circumstantial evidence… that E.M. was not the sexual aggressor and that she was not begging for sex and asking for everything that happened.”