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Complainant in Hockey Canada trial initially tried to resist, but felt she had no choice, Crown argues - The Globe and Mail

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Complainant in Hockey Canada trial initially tried to resist, but felt she had no choice, Crown argues - The Globe and Mail
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Crown lawyer Meaghan Cunningham was presenting closing arguments in the trial Thursday at a London, Ont., courthouse.Nicole Osborne/The Globe and Mail

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The woman who alleges she was sexually assaulted by five former world junior hockey players in 2018 in a London, Ont., hotel room initially tried to resist but felt she had no choice but to comply, a lawyer for the prosecution asserted Thursday during closing arguments.

Known as E.M. because her name is protected by a court publication ban, the woman had consensual sex with one player, but alleges she didn’t agree to further sexual acts with additional players who came into the hotel room afterward. On Thursday, Crown lawyer Meaghan Cunningham described the situation as “highly stressful and unpredictable.”

“The events snowballed from there. More and more men keep arriving and soon, as [E.M.] explained, she finds herself over her head. Because the men are making suggestions, they’re telling her what they want her to do,” Ms. Cunningham told Ontario Superior Court Justice Maria Carroccia during the players’ trial.

Ms. Cunningham also zeroed in on a short video clip shot by one of the players, Michael McLeod, on his phone inside the room. In the video, which has become central to the case, Mr. McLeod says to E.M., “You’re okay with this, though, right?” And she responds, “I’m okay with this.”

Defence lawyers have said the video shows she consented to what transpired in the room, including oral sex. But Ms. Cunningham asserted to Justice Carroccia that the video shows something else – that the video was shot after E.M. had been upset.

“I want to ask Your Honour to think carefully about those words and what they tell us about what was happening at that point in time. Mr. McLeod is not just saying, “You’re okay with this, right?’ ” Ms. Cunningham said.

“The use of the word ‘though,’ in my submission, is actually 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.”

Defence lawyers maintain that E.M. was demanding sex inside the hotel room, which Ms. Cunningham said doesn’t align with the video.

“If somebody says, ‘Can I perform oral sex on you, you don’t then say, ‘You’re okay with this, though, right?’ It doesn’t make sense.”

Mr. McLeod, Alex Formenton, Carter Hart, Dillon Dubé and Cal Foote have each been charged with sexually assaulting E.M. in June, 2018, after a gala held to celebrate the world junior team from that year. Mr. McLeod faces a second charge of being a party to sexual assault. The five men have pleaded not guilty.

E.M. met Mr. McLeod at a London bar after the gala and the two went back to his hotel room and had consensual sex. E.M. alleges Mr. McLeod later invited several teammates to the room without her consent who then took turns sexually assaulting her. She said during earlier testimony that she feared for her safety in the room and felt pressure to perform multiple sex acts.

The Hockey Canada sexual-assault trial is nearly over. Send us your questions about the case

Ms. Cunningham said the players told her to get down on the ground and touch herself, which prompted E.M. to say no, because the ground was dirty. When they put a bedsheet on the floor, E.M. lost that excuse, Ms. Cunningham asserted.

“She initially tried to resist in passive ways. Ways that I submit are completely recognizable to any woman or anyone who has seen a woman in an uncomfortable situation,” Ms. Cunningham said.

E.M. testified during the eight-week trial that, fearing for her safety, she felt like her mind separated from her body and she performed sexual acts to which she didn’t consent, as a way to get out of the room.

Whether E.M. consented is a key point in the trial over whether the events in the hotel room were criminal or not.

Lawyers for both sides presented closing arguments this week. On Monday, David Humphrey, defence lawyer for Mr. McLeod, questioned E.M.’s credibility, citing inconsistencies in her testimony, and told the court the explanation she adopted a “porn star persona” as a coping mechanism was not believable.

Both sides have called into question the accuracy of statements made by key witnesses. On Wednesday, Ms. Cunningham accused Mr. McLeod of repeatedly lying during a 2018 statement to police about whether he invited the players to the hotel room for group sex.

Ms. Cunningham also questioned why, if E.M. was asking for sex as the players have contended, they didn’t try to film those statements. “It would have made more sense to capture that on video.”

The Crown also submitted to Justice Carroccia Thursday that the explanation E.M. didn’t know how to respond in the moment, and acquiesced as a result, was an acceptable rationale under the circumstances.

“Your honour doesn’t need to hear expert evidence in order to understand that some people will fight or resist. Some people will try and flee. Some people will freeze. Some people will appease or fall back on habits and reflexes. Some people will dissociate or detach from reality, and some people will do a combination of all these things. Either or all are normal predictable responses,” Ms. Cunningham asserted.

On Tuesday, defence lawyer Daniel Brown, who represents Mr. Formenton, asserted in his closing arguments that E.M. exaggerated her claims of sexual assault in the years since 2018, after London police initially closed their investigation without charges, to pursue a lawsuit against Hockey Canada for financial gain.

Hockey Canada, which oversees the world junior team, settled a $3.55-million civil claim brought by E.M. in 2022. The amount of that settlement is unknown. Police reopened the investigation that year and charges were laid in 2024.

Ms. Cunningham told the court Thursday that E.M.’s civil claim has no bearing on the criminal trial.

“She had her money, she could have taken that money and run. She did not need to come to court to participate in this trial and subject herself to nine days of testimony in order to keep that money. There is no connection between the money and her participation in this trial,” Ms. Cunningham said.

After the Crown completes its closing arguments on Friday, the defence can respond. Justice Carroccia has scheduled July 24 to deliver her verdict in the judge-only trial.

The trial of five former members of Canada’s 2018 world junior hockey team, who are accused of sexually assaulting a woman in a London, Ont., hotel room in 2018, has raised questions about how news organizations cover such cases. Robyn Doolittle answers reader questions with Standards Editor Sandra E. Martin. The accused players have all pleaded not guilty.

The Globe and Mail

Send us your questions about the Hockey Canada trial

The weeks-long trial of five former Canada world junior hockey players accused of sexually assaulting a woman in a London, Ont., hotel in 2018 is nearly done, but the high-profile proceedings have raised many questions beyond what the judge's verdict will be. A mistrial and two dismissed juries made their own headlines, while emotional testimony from the complainant, E.M., and excluded evidence have prompted scrutiny of how Canada's beloved game and the justice system treats sexual-assault allegations.

Globe reporters have been in court every day reporting on the trial, and we want to hear your questions about the case. Submit your questions via the form below or send us an email at [email protected] with "Hockey Canada" in the subject line.

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