Defense cites ‘reliability concerns' of E.M. in first of closing arguments at Hockey Canada trial
LONDON, Ont. – Defense attorneys began delivering their closing arguments in the Hockey Canada sexual assault trial on Monday, attacking the complainant's testimony as containing a 'cornucopia of credibility and reliability concerns' and suggesting that she has re-tooled her narrative to present herself as a victim to evoke sympathy from friends and family and in pursuit of the civil lawsuit she settled in 2022.
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Michael McLeod, Carter Hart, Alex Formenton, Dillon Dubé and Cal Foote are all charged with sexual assault after an alleged incident in June 2018. The complainant — a woman known as E.M., whose identity is protected by a publication ban — has said she was sexually assaulted over the span of several hours in a London, Ont., hotel room. The players were in town for a Hockey Canada event celebrating their gold medal at the 2018 World Junior Championship.
McLeod is also facing a second charge for 'being a party to the offense' for what the Crown has asserted was his role 'assisting and encouraging his teammates to engage sexually' with E.M. All five players have pleaded not guilty.
David Humphrey, attorney for McLeod, was the first defense attorney to make oral submissions in front of Justice Maria Carroccia in the eighth and final week of the trial. He pre-empted his argument by telling Carroccia that usually defense teams are 'happy to have a few hits' on the complainant, but this case has an abundance.
'This is a case where the defense has an embarrassment of riches,' Humphrey said. 'A cornucopia of credibility and reliability concerns in (E.M.'s) testimony.'
E.M. testified that she met McLeod at a local bar, engaged in a night of drinking and dancing before the two went back to his hotel to have consensual sex. She said that following that initial sexual encounter, she emerged from the bathroom to find more men in the room. Over the course of several hours, she said she was pressured to perform sexual acts, spit on, slapped and asked to insert golf clubs and golf balls into her vagina.
She described feeling scared and vulnerable and said that she went on 'autopilot' – dissociating to get through the night.
Multiple players testified about a group text message they received from McLeod, inviting them for a '3 way quick' and supplying his room number, but said she initiated the sexual acts, asking players to have sex with her and goading them when they declined.
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Humphrey said that E.M. is a 'flawed witness' whose testimony is 'unbelievable and unreliable.' She may have not wanted to acknowledge that she had a 'sexually adventurous' night in the hotel room, Humphrey said. He said that she didn't want to take responsibility for her actions and suggested that embarrassment and regret prompted her to tell a 'white lie' to her mother about what happened in the early-morning hours of June 19, 2018. Humphrey said that 'white lie' then snowballed into a criminal investigation.
Humphrey seized on E.M.'s initial police interview in the days following the alleged incident and noted that she did not describe the fear she testified about when speaking with Detective Stephen Newton. (E.M. testified that at the time of that June 2018 interview with London Police, she was still processing what happened to her and felt uncomfortable talking about it with a male detective whom she had never met previously).
Humphrey said that the element of fear was not sincere and instead invoked to support her $3.55 million lawsuit against Hockey Canada, which was resolved via an out-of-court settlement in 2022.
'Her new terror narrative that was advanced in the claim was scripted to remedy the deficiencies in the first narrative she had provided to Detective Newton,' Humphrey said.
Justice Carroccia's first substantive remark of the day was to note the speed with which the Hockey Canada lawsuit was settled:
'Extremely quickly, frankly,' Carroccia said. 'I have never seen a settlement that takes place one month after the statement of claim is served.'
In his submission, Humphrey addressed a few elements of his client's actions, including his initial interview with police in November 2018 and the two videos he referred to as 'consent videos.'
Humphrey acknowledged that when McLeod was interviewed by police he did not detail the full contents of the text messages he sent to teammates, including the group chat message with an invitation for three-way sex and an invitation to another player offering a 'gummer,' which is slang for oral sex. Humphrey said he wasn't sure if McLeod just didn't remember the content of his texts or had not done a deep dive on the contents of his phone. He expressed disappointment that Newton did not ask further questions after McLeod disclosed he texted teammates that he was ordering food and had a girl in his room that night.
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Humphrey said McLeod only invited a 'limited number' of players. (The 'gummer' text was sent to Taylor Raddysh. The '3 way' text was sent to a group chat of 19 players.) Humphrey argued that because the text describes a 'three-way' it wasn't reasonable to conclude he anticipated more than a few players taking him up on the invitation.
'He was surprised by the number of people who came,' Humphrey said.
Humphrey said the two videos recorded in the early morning of June 19, 2018 are critical to McLeod's defense. In one of the videos, she says 'I'm OK' when asked if she's 'OK with this.' In the other, she says, 'It was all consensual.' E.M. has testified that she didn't recall those videos being recorded but said that she believes they were taken at the end of the night because she recalled McLeod hounding her to say the sexual acts were consensual.
Humphrey said it was an 'unusual' and 'awkward' situation and that McLeod didn't know if E.M. would wake up the next morning to 'gloat' about what happened or with regret. He praised McLeod's presence of mind in memorializing what he described as evidence of her being 'happy' and fine with everything that was happening.
'He was drunk but he still had his head on straight and he wanted to make sure she was fully consenting,' Humphrey said.
In his oral submission, Humphrey argued that the Crown had not met its burden of proof in proving the charges against his client beyond a reasonable doubt. He added that the alcohol consumption and passage of time that degraded the memory quality of many witnesses in the trial should leave the court with reasonable doubt.
Humphrey also said that he wanted to explain, for those watching the proceedings less familiar with the law, that it was not the court's job to 'assess the morality of how the accused or others in the room were acting, whether they could have been better behaved or more respectful.'
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'Those issues may be of interest to the public, but they are not issues for assessment by the court,' Humphrey said.
— The Athletic's Dan Robson reported remotely from Toronto and The Athletic's Kamila Hinkson reported remotely from Montreal.
(Courtroom sketch of defense attorney David Humphrey from earlier in the trial by Alexandra Newbould / The Canadian Press via AP)
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