Five members of Canada’s 2018 world junior hockey team were “reckless” for engaging in group sex with a woman and not seeking her affirmative consent, Crown prosecutors allege.
Prosecutor Meaghan Cunningham made those remarks at the start of Crown’s closing submissions Wednesday in the high-profile trial of Michael McLeod, Carter Hart, Alex Formenton, Dillon Dube and Callan Foote.
All five men 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, known as E.M. in court documents, in McLeod’s London, Ont., 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.
“E.M. did not voluntarily agree to the charged sexual acts that took place that night,” Cunningham told Superior Court Justice Maria Carroccia inside a London, Ont., courtroom.
‘She did not choose’: Cunningham
Cunningham’s submissions come after defence lawyers wrapped up their arguments earlier in the day; since Monday, they’ve argued the complainant is not a reliable witness because she “created a lie” out of regret and embarrassment, and that throughout the night in question, her “communication of consent is overwhelming.”
The central issue at the high-profile trial, which began in late April and has seen two juries dismissed, is whether E.M. consented to the sexual activity that took place in McLeod’s room in the early morning hours of June 19, 2018.
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.
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.
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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 would testify at the trial, while the other players’ lawyers cited evidence and police interviews that were already played in court as part of the reasons why their clients were opting not to testify.
Defence takes aim at police, Hockey Canada
Cunningham told Carroccia Wednesday the players were, at the very least, “reckless” for engaging in “spontaneous” group sex with a stranger and not engaging in conversation with her about her sexual preferences and limits.
“They did not take reasonable steps” to get her affirmative consent, she said, adding a lot of the evidence amounts to a series of “beliefs and assumptions rooted in myths and stereotypes” about consent.
“It is our position that she did not choose,” Cunningham said.
“She did not make an affirmative, voluntary choice and therefore she did not consent.”
Lisa Carnelos, lawyer for Dube and Julianna Greenspan, lawyer for Foote, were the defence lawyers who wrapped up their submissions Wednesday.
Carnelos, who argued Tuesday Dube should be acquitted in his “historic” trial, shot down the Crown’s argument Wednesday the men were allegedly colluding in a group chat in the days that followed to make up a story.
“This is the most lame attempt at collusion I’ve seen in my life,” she said.
Greenspan, whose client is accused of doing the splits while naked over E.M., said the complainant has changed her story to “falsely sexualize” the interaction, and urged Carroccia to believe Hart, who testified Foote was fully clothed, did a partial split over her torso and laughed when it happened.
“The court can’t conclude whether the interaction between Callan Foote and (E.M.) was not consented to,” she said.
“Mr. Hart’s evidence against Mr. Foote should be relied upon.”
She added 2022 was the year the saga changed, when news of a quick Hockey Canada settlement to E.M. broke and London police reopened the investigation in response to public outrage.
Greenspan said in 2022, “police, just like Hockey Canada, were focused on her truth — not the truth.”
Carroccia said Tuesday she expects to deliver her ruling on July 24.
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