Content warning: This story includes allegations of sexual assault.
By Paul D. Grant
LONDON, Ont. – Crown prosecutors concluded their final arguments on Friday, outlining why they believe the judge should convict the five former NHL players accused in a 2018 sexual assault case.
On the last day of a two-month trial filled with dramatic turns, assistant Crown attorney Meaghan Cunningham urged Justice Maria Carroccia to “accept the evidence of E.M. and we urge Your Honour to find each of the accused guilty as charged.”
The woman who brought the complaint is identified as E.M., her name protected by a publication ban.
Michael McLeod faces two counts of sexual assault, one involving aiding and abetting the offense. Dillon Dube, Cal Foote, Alex Formenton, and Carter Hart are each charged with one count of sexual assault. All defendants have pleaded not guilty.
The Crown wrapped up its submissions by addressing the abetting charge against McLeod, an offense more typically seen in murder cases.
Cunningham asserted that McLeod “orchestrated this whole sordid night,” alleging he texted teammates to come to Room 209 at the Delta Armouries hotel on June 19, 2018, for a “3-way, quick.” Cunningham described McLeod going into the hallway and another room to gather teammates.
“Knowing that E.M. had expressed no interest in or willingness to engage in sexual activity with anyone other than him, he then begins a campaign to bring men into the room to do that very thing,” Cunningham stated.
She added, “All of his actions are intended to leave his teammates with the impression that she’s willing to engage in that sexual activity.”
Assistant Crown attorney Heather Donkers reviewed the credibility and reliability of each defendant for Justice Carroccia, countering defence arguments that the players believed E.M.`s consent to one type of sexual act implied interest or consent to other acts, which she noted is contrary to Canadian law.
Regarding Hart:
“He did not have a conversation with her to ascertain what brought her there, what she was interested in, what her limits were, what contraception should be potentially used.
“Instead, he was presented with the opportunity that he was looking for all night — to have sexual activity with a woman — and in his excited state, rather than take the steps that would be reasonable in the circumstances, Mr. Hart was reckless as to whether (E.M.) was consenting to the sexual act … with him, specifically.”
Regarding McLeod:
His credibility and reliability are questioned due to “a willingness to lie to police about any significant issue,” which the Crown alleges includes who invited players to his room and their reason for attending.
Furthermore, he demonstrated either “recklessness” or “willful blindness” concerning E.M.`s consent.
Regarding Dube:
He omitted slapping E.M.`s buttocks when giving a statement to police in 2018 because he knew it “crossed the line,” and “goes beyond the bounds of what you could reasonably portray as consensual in the circumstances,” demonstrating a “consciousness of guilt.”
Regarding Formenton:
There was no discussion between him and E.M. before they went to the bathroom for sex. E.M. testified that she felt she had no choice but to engage in sexual activity with Formenton.
“Mr. Formenton says what happened was consensual. Even if he sincerely believes that, it doesn’t make it true.”
Regarding Foote:
E.M. did not consent to Foote performing the splits while naked over her because she was unaware it would happen.
“This type of act is not one that is easily confused. E.M. viscerally testified about how this person had his bottoms and underwear off, and that he did the splits on her face.”
Earlier in the day, Cunningham reiterated the argument that E.M. did not consent to the events that unfolded that night, labeling the so-called consent videos as “token lip-service box-checking” that did not constitute actual consent as they failed to address specific acts with specific individuals.
“At no time did anyone engage in a sincere conversation with E.M. about what she truly wanted to happen,” Cunningham stated. “At no point does anyone say, ‘Do you want to slow this down?’”
The defence`s replies after the lunch break were brief, largely due to time constraints.
David Humphrey, one of McLeod’s attorneys, argued the Crown’s strategy was “changing and evolving” up to the final arguments. He maintained that E.M. was “communicating consent” throughout the evening.
Humphrey disputed the Crown’s assertion that McLeod’s failure to tell London police in 2018 about sending a text inviting teammates indicated a “consciousness of guilt.”
Riaz Sayani, one of Hart’s attorneys, cited the second consent video as evidence of E.M.’s genuine demeanor that night. He disagreed with the Crown’s position that trauma caused E.M.’s unusual behavior.
Hilary Dudding, one of Formenton’s attorneys, suggested the characterization of E.M. acting bizarrely carried a hint of sexism.
“That reasoning implies that a woman assertively asking for sex is so inherently bizarre and odd that it requires some kind of explanation, other than she is actually excited about it,” Dudding remarked.
“It’s stereotypical thinking about what kinds of sex people like and don’t like, and that women are OK with or not OK with.”
Lisa Carnelos, one of Dube’s attorneys, restated that her client`s contact with E.M.’s buttocks was “playful touching. Tapping,” and that the Crown had not proven E.M. was not consenting. She added that it “in no way looked to be harmful” or “had the intention of being abusive.”
Julianna Greenspan, the lead attorney for Foote, concluded the defence’s replies and this phase of the trial by urging Justice Carroccia “to consider all of the actual evidence in this case through the lens of the presumption of innocence.”
After Justice Carroccia dismissed court, lawyers from both sides shared hugs and shook hands.
The verdict is scheduled to be read in court by Justice Carroccia on July 24.
Editor’s note
If you or someone you know is in need of support, those in Canada can find province-specific centres, crisis lines and services here. For readers in the United States, a list of resources and references for survivors and their loved ones can be found here.
Duncan Priestley