The female complainant’s memory gaps in the high-profile world junior trial are unique to her because they’re the product of “trauma,” Crown prosecutors say.
Prosecutor Meaghan Cunningham continued delivering closing submissions Thursday in the 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.
Cunningham told Superior Court Justice Maria Carroccia at the start of her closing arguments Wednesday that the men were “reckless” for engaging in group sex with the woman and not seeking her affirmative consent.
“The impact of trauma on memory is something that only applies to E.M., not the other men in the room,” Cunningham said Thursday.
“There is no way for her to explain this situation.… She was experiencing a trauma response.”
Closing submissions in the trial began Monday; defence lawyers 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.”
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The central issue at the 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.
The now-27-year-old woman, whose identity is protected under a standard publication ban, was subject to intense cross-examination during her nine days 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 and 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.
Cunningham told Carroccia Thursday that E.M. was made to feel “like an object” in McLeod’s room, was intimidated and offered sex as an “appeasement” in a “highly stressful situation.” She argued many defence submissions on E.M.’s behaviour are based on assumptions about how someone in her situation would act.
She added E.M. is a credible witness because she was abundantly fair in the trial, clear and concise, not resentful and confirmatory.
Carroccia said Tuesday she expects to deliver her ruling on July 24.
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