Crown attacks defense's tactics, legal arguments in Hockey Canada trial
LONDON, Ont. – The Crown targeted a number of rape myths and stereotypes Thursday, challenging defense tactics and legal arguments, introducing case law about trauma response and memory, and arguing on behalf of E.M.'s credibility and reliability as a witness in the Hockey Canada sexual assault trial.
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Crown attorney Meaghan Cunningham said the way defense attorneys have treated E.M.'s testimony explains why sexual assault victims don't come forward, citing 'accusatory' questions and 'laughing' and 'scoffing' as ways in which they have conveyed their disbelief. Cunningham said defense attorneys also misrepresented E.M.'s testimony on several occasions and attacked her testimonial demeanor in a way that was unfair.
Cunningham pointed out that Hart's attorney, Megan Savard, argued in closing submissions this week that E.M. came off as too calm and rehearsed on the stand — and that it sounded like she was a 'P.R. professional.'
'This kind of argument really illustrates why some people feel that victims aren't treated fairly in the criminal justice system, because she can't win,' Cunningham said.
'If she's too emotional, she's combative. If she's not emotional enough, she's rehearsed. If she refuses to agree with suggestions, she's combative and difficult. But if she does agree, then she doesn't know her own mind. If she uses the same language at multiple points, then it's contrived, but if she uses different language, she's inconsistent.'
Cunningham said that these ideas are all rooted in a 'myth of the ideal victim.'
'That there is a right way for someone to look and sound when they're describing sexual assault,' Cunnigham said. 'That there is a correct way, or a good way, for a real victim to testify.'
Michael McLeod, Carter Hart, Alex Formenton, Dillon Dubé and Cal Foote are all charged with sexual assault after an alleged incident in June 2018 in which 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 2018 World Junior Championship victory.
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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.
Cunningham said that E.M. emerging naked from the bathroom of Room 209 to find more men in the room was a 'highly stressful' and 'unpredictable' situation. That helps explain how she was feeling in the moment, why she did not always behave in ways that seem logical to an outside observer and how this interlocks with case law that addresses trauma response and memory loss or gaps, Cunningham said.
'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,' Cunningham said. 'And some people will do a combination of all of these things. These are all normal, predictable responses.'
Cunningham addressed Julianna Greenspan's repeated assertions that E.M. used the word 'men' because she had an agenda. Greenspan is the attorney for Foote.
'Her desire to use accurate language at trial and actually refer to them as men does not demonstrate any sort of animus and agenda,' Cunningham said. 'She knows, as do we all, they were not boys when this thing happened. They were legally adults.'
Cunningham contrasted that with defense attorneys 'continuously' referring to the defendants as 'boys' while also portraying E.M. as a 'woman,' with one even referring to her as an 'older woman.'
'This is a juxtaposition that infantilizes the defendant and leaves the impression that [E.M.] was more mature and bears a greater responsibility for her actions than the defendants do,' Cunningham said. 'There is no negative inference that can be drawn from [E.M.] using an entirely accurate term to describe the defendant. In reality, they were adults at the time. They were of a similar age and station in life to [E.M].'
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Cunningham refuted the notion that E.M. had motive to fabricate based on some of the defense assertions — that she wanted to save face with her boyfriend, her mother and because of her civil claim.
Instead, she argued that E.M.'s credibility as a witness is supported by the fact that she already had a cash settlement with Hockey Canada, so she had nothing to benefit from continuing in a criminal trial with her version of what happened if it wasn't true.
'She could have taken that money and run,' Cunningham said. 'She did not need to come to this court, 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. There is quite simply no evidence of financial motive.'
Prior to the afternoon break, Cunningham and Carroccia sparred considerably during Cunningham's argument that the June 26, 2018 group chat showed the genesis of the players crafting a narrative about what happened that night. The Crown prosecutor asserted that they used that as a forum to get on the same page about how to describe the events.
Several things stated by players in that group chat were not true, Cunningham argued, yet still took hold and were integrated into a number of players' stories about what happened. She specifically took issue with the ideas that the players were coming to the room for food and that E.M. was 'begging' for sex.
'The group chat shows the participants in the chat were all exposed to a discussion of a developing narrative,' Cunningham said.
'Or they were repeating what they believed happened,' Carroccia responded.
After a number of tense exchanges in which Cunningham asked Carroccia to consider the totality of the evidence in context of the entire chat, she abandoned the argument because she said she could tell that Carroccia did not find it 'persuasive.'
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Cunningham returned to the idea of E.M. 'begging' for sex — multiple players, including Crown witnesses, said that E.M. was asking players for sex — and said that was inconsistent with other evidence.
She asked why McLeod would take the 'consent videos' he filmed that night if he felt she was 'begging' for sex, why he would tell police in his 2018 police interview that he filmed them because he was 'worried something like this would happen' if she was consenting enthusiastically, and why, if she was 'begging' for sexual activity throughout the night, players had failed to capture that via video or audio recording.
Cunningham referenced the fact that multiple witnesses have described points in which E.M. was crying (Brett Howden described it as 'weeping') and their reasoning — they said she was upset players in the room weren't engaging with her sexually — and said that reasoning was 'illogical.'
'But guys were doing stuff to her, right? Three guys put their penises in her mouth. Another guy put his penis in her vagina and her mouth. Guys were slapping her on the buttocks and doing the splits over her,' Cunningham said.
If she was upset that people wouldn't 'do stuff' to her, and it's true that they didn't want to engage with her, why didn't they simply let her leave the room when she got dressed at multiple points and said she was going to leave? Cunningham asked.
Cunningham ended the day by covering the elements of consent law the Crown was asking Carroccia to consider as part of its case — that E.M. did not voluntarily consent to the specific sexual acts that have been charged. Cunningham stressed that Canadian law does not allow for broad, unspecific consent and that it has to be renewed consistently and tied to a certain specific act, not to sexual activity writ large.
'Consent has to be ongoing and consciously given throughout the sexual activity in question. Consent is not a one-and-done box check at the beginning or end of an encounter.' Cunningham said, adding that consent 'cannot be given in advance. It has to be contemporaneous' with the specific act.
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Cunningham said E.M. did not weigh her options in the hotel room that night and make a conscious choice: 'There is no voluntary agreement when she believes she has no choice in the matter.'
Cunningham said that if this was not enough to convince Carroccia that the sexual activity was non-consensual, she asked her to alternatively consider that the fear and stress she felt vitiated E.M.'s consent.
She pointed out that E.M. was naked in a room of eight to 10 men — who were strangers — not knowing what was going to happen or how they'd react if she tried to leave or say no.
'Sexual assault is a gendered crime. The vast majority of victims are female. The vast majority of perpetrators are male,' Cunningham said. 'We as a society are starting to have a better understanding of just how prevalent and pervasive all forms of violence against women are and how patriarchal structures contribute to and perpetuate that violence. This is not a new phenomenon. It is not controversial or novel to accept that for most women existing in society means experiencing the fear that you may become the victim of some form of violence of a man.'
— The Athletic's Dan Robson contributed reporting remotely from Toronto.
(Courtroom sketch of Crown attorney Meaghan Cunningham during E.M.'s closed-circuit TV testimony earlier in the trial by Alexandra Newbould / The Canadian Press via AP)
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