A group sexual encounter that led to charges against five members of Canada’s 2018 world junior hockey team was “regrettable” but “consensual,” a lawyer for one of the accused argues.
Dan Brown, who represents Alex Formenton, told Superior Court Justice Maria Carroccia Tuesday in his closing submissions the case against the players is “not complicated” because the complainant, known as E.M. in court documents, is “not reliable.”
“She created a lie,” Brown told Carroccia inside a London, Ont., courtroom.
“It’s a lot easier to explain to friends and family that people did bad things to her rather than explain the choices she made.”
Closing submissions in the high-profile trial began Monday after the defence rested its case last week. The trial, which has been proceeding by judge alone after two juries were dismissed, began in late April.
Formenton, Michael McLeod, Carter Hart, Dillon Dube and Callan Foote have pleaded not guilty to sexual assault stemming from what the Crown alleges was non-consensual group sex with a then 20-year-old woman in McLeod’s London hotel room in June 2018.
McLeod has also pleaded not guilty to an additional charge of being a party to the offence of sexual assault.
Brown accuses E.M. of lying under oath
Court has heard that the team was in London for events marking its gold-medal performance at that year’s championship, and that the complainant was out with friends when they met at a downtown bar on June 18, 2018.
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After being with McLeod and his teammates at the bar, E.M. would go on to have consensual sex with McLeod in his room in the early morning hours of June 19. Court has heard that E.M., who testified she was drunk and not of clear mind, was in the washroom after she had sex with McLeod and came out to a group of men in the room allegedly invited for a “3 way” by McLeod in a group chat.
It was then that the Crown alleges several sexual acts took place without E.M.’s consent.
The now 27-year-old woman, whose identity is protected under a standard publication ban, was subject to intense cross-examination during her nearly two weeks on the stand.
Defence lawyers have suggested E.M. wasn’t as drunk as she has testified she was, wanted a “wild night” with the players and was “egging” them on to have sex with her, and accused her of having a “clear agenda” at the trial.
E.M. has pushed back against those claims and at points outright rejected them, saying she was coaxed into staying in the room, was disrespected and taken advantage of by the group, who she said “could see I was out of my mind.”
Only Hart testified at the trial, while the other players’ lawyers cited evidence and police interviews that were already played out in court as part of the reasons why they weren’t calling their clients to the stand.
Brown told Carroccia Tuesday that Formenton, who court has heard had sex with E.M. in the bathroom, did so because “she wanted to have sexual intercourse and he wanted to have sex, they both agreed.”
Formenton was 18 at the time, Brown said. Court has heard everyone involved were young adults at the time. Brown said it’s not uncommon for young, intoxicated adults to have consensual sex and regret it later, and called the group sex in this case “unusual” and “regrettable,” but that “doesn’t mean it wasn’t consensual.”
“We have lots of evidence that she was consenting and only her version that she wasn’t,” Brown added, citing video and witness evidence that disputes E.M.’s testimony.
Later, Brown accused E.M. of lying under oath, saying she knew her weight at the time was inaccurate when he confronted her about it during cross-examination, and that she gave evidence to London police in 2022 that had “many mistakes.”
“This should give your honour concern … that she doesn’t respect the oath,” Brown told Carroccia.
Lisa Carnelos, Dube’s lawyer, addressed Carroccia after Brown and told the judge her client should be found innocent in this “historic” trial.
“At minimum, you should have … serious concerns (about E.M.’s credibility),” Carnelos said, adding the Crown is “plucking pieces of evidence here and there” to prove they have established reasonable doubt.
“They’re asking you to do the impossible,” she said.
On Monday, McLeod’s lawyer, David Humphrey, argued the complainant has presented an “entirely unbelievable and unreliable” version of the events. Megan Savard, Hart’s lawyer, told Carroccia her client’s evidence was “exculpatory” and corroborated by players who testified as witnesses for the Crown.
After defence lawyers finish their submissions, Crown prosecutors will make their closing arguments; they’ve said they’d need a day for their submissions.
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