Border Patrol agent whose death is tied to cultlike Zizians is being buried with military honors
MINNEAPOLIS — A U.S. Border Patrol agent whose killing in Vermont during a traffic stop near the Canadian border has been tied to a cultlike group is scheduled to be buried with full military honors Saturday at a national cemetery.
David Maland, 44, died Jan. 20 during the stop on Interstate 91 in Conventry, about 20 miles (30 kilometers) south of the border with Canada. The driver of the stopped car is accused of opening fire on Maland and other agents, sparking a shootout that left her companion dead. Both belonged to a group called the Zizians that may be linked to six deaths in three states , investigators said.
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17 hours ago
A Border Patrol agent died in 2009. His widow is still fighting a backlogged US program for benefits
When her husband died after a grueling U.S. Border Patrol training program for new agents, Lisa Afolayan applied for the federal benefits promised to families of first responders whose lives are cut short in the line of duty. Sixteen years later, Afolayan and her two daughters haven't seen a penny, and program officials are defending their decisions to deny them compensation. She calls it a nightmare that too many grieving families experience. 'It just makes me so mad that we are having to fight this so hard,' said Afolayan, whose husband, Nate, had been hired to guard the U.S. border with Mexico in southern California. 'It takes a toll emotionally, and I don't think they care. To them, it's just a business. They're just pushing paper.' Afolayan's case is part of a backlog of claims plaguing the fast-growing Public Safety Officers' Benefits Program. Hundreds of families of deceased and disabled officers are waiting years to learn whether they qualify for the life-changing payments, and more are ultimately being denied, an Associated Press analysis of program data found. The program is falling far short of its goal of deciding claims within one year. Nearly 900 have been pending for longer than that, triple the number from five years earlier, in a backlog that includes cases from nearly every state, according to AP's review, which was based on program data through late April. More than 120 of those claims have been in limbo for at least five years, and roughly a dozen have languished for a decade. 'That is just outrageous that the person has to wait that long,' said Charlie Lauer, the program's general counsel in the 1980s. 'Those poor families.' Justice Department officials, who oversee the program, acknowledge the backlog. They say they're managing a surge in claims — which have more than doubled in the last five years — while making complicated decisions about whether cases meet legal criteria. In a statement, they said 'claims involving complex medical and causation issues, voluminous evidence and conflicting medical opinions take longer to determine, as do claims in various stages of appeal.' It acknowledged a few cases "continue through the process over ten years.' Program officials wouldn't comment on Afolayan's case. Federal lawyers are asking an appeals court for a second time to uphold their denials, which blame Nate's heat- and exertion-related death on a genetic condition shared by millions of mostly Black U.S. citizens. Supporters say Lisa Afolayan's resilience in pursuing the claim has been remarkable, and grown in significance as training-related deaths like Nate's have risen. 'Your death must fit in their box, or your family's not going to be taken care of,' said Afolayan, of suburban Dallas. Their daughter, Natalee, was 3 when her father died. She recently completed her first year at the University of Texas, without the help of the higher education benefits the program provides. Congress created the Public Safety Officers' Benefits program in 1976, providing a one-time $50,000 payout as a guarantee for those whose loved ones die in the line of duty. The benefit was later set to adjust with inflation; today it pays $448,575. The program has awarded more than $2.4 billion. Early on, claims were often adjudicated within weeks. But the complexity increased in 1990, when Congress extended the program to some disabled officers. A 1998 law added educational benefits for spouses and children. Since 2020, Congress has passed three laws expanding eligibility — to officers who died after contracting COVID-19, first responders who died or were disabled in rescue and cleanup operations from the September 2001 attacks, and some who die by suicide. Today, the program sees 1,200 claims annually, up from 500 in 2019. The wait time for decisions and rate of denials have risen alongside the caseload. Roughly one of every three death and disability claims were rejected over the last year. U.S. Sen. Ted Cruz and other Republicans recently introduced legislation to require the program to make determinations within 270 days, expressing outrage over the case of an officer disabled in a mass shooting who's waited years for a ruling. Similar legislation died last year. One group representing families, Concerns of Police Survivors, has expressed no such concerns about the program's management. The Missouri-based nonprofit recently received a $6 million grant to continue its longstanding partnership with the Justice Department to serve deceased officers' relatives — including providing counseling, hosting memorial events and assisting with claims. 'We are very appreciative of the PSOB and their work with survivor benefits,' spokesperson Sara Slone said. 'Not all line-of-duty deaths are the same and therefore processing times will differ.' Born in Nigeria, Nate Afolayan moved to California with relatives at age 11. He became a U.S. citizen and graduated from California State University a decade later. Lisa met Nate while they worked together at a juvenile probation office. They talked, went out for lunch and felt sparks. 'The next thing you know, we were married with two kids,' she said. He decided to pursue a career in law enforcement once their second daughter was born. Lisa supported him, though she understood the danger. He spent a year working out while applying for jobs and was thrilled when the Border Patrol declared him medically fit; sent him to Artesia, New Mexico, for training; and swore him in. Nate loved his 10 weeks at the academy, Lisa said, despite needing medical treatment several times — he was shot with pepper spray in the face and became dizzy during a water-based drill. His classmates found him to be a natural leader in elite shape and chose him to speak at graduation, they recalled in interviews with investigators. He prepared a speech with the line, 'We are all warriors that stand up and fight for what's right, just and lawful." But on April 30, 2009 — days before the ceremony — a Border Patrol official called Lisa. Nate, 29, had fainted after his final training run and was hospitalized. It was dusty and 88 degrees in the high desert that afternoon. Agents had to complete the 1.5-mile run in 13 minutes, at an altitude of 3,400 feet. Nate had warned classmates it was too hot to wear their black academy shirts, but they voted to do so anyway, records show. Nate, 29, finished in just over 11 minutes but then struggled to breathe and collapsed. Now Nate was being airlifted to a Lubbock, Texas, hospital for advanced treatment. Lisa booked a last-minute flight, arriving the next day. A doctor told her Nate's organs had shut down and they couldn't save his life. The hospital needed permission to end life-saving efforts. One nurse delivered chest compressions; another held Lisa tightly as she yelled: 'That's it! I can't take it anymore!' Lisa became a single mother. The girls were 3 and 1. Her only comfort, she said, was knowing Nate died living his dream — serving his adopted country. When she first applied for benefits, Lisa included the death certificate that listed heat illness as the cause of Nate's death. The aid could help her family. She'd been studying to become a nurse but had to abandon that plan. She relied on Social Security survivors' benefits and workers' compensation while working at gyms as a trainer or receptionist and dabbling in real estate. The program had paid benefits for a handful of similar training deaths, dating to a Massachusetts officer who suffered heat stroke and dehydration in 1988. But program staff wanted another opinion on Nate's death. They turned to outside forensic pathologist Dr. Stephen Cina. Cina concluded the autopsy overlooked the 'most significant factor': Nate carried sickle cell trait, a condition that's usually benign but has been linked to rare exertion-related deaths in military, sports and law enforcement training. Cina opined that exercising in a hot climate at high altitude triggered a crisis in which Nate's red blood cells became misshapen, depriving his body of oxygen. Cina, who stopped consulting for the benefits program in 2020 after hundreds of case reviews, declined to comment. Nate learned he had the condition, carried by up to 3 million U.S. Black citizens, after a blood test following his second daughter's birth. The former high school basketball player had never experienced any problems. A Border Patrol spokesperson declined to say whether academy leaders knew of the condition, which experts say can be managed with precautions such as staying hydrated, avoiding workouts in extreme temperatures and altitudes, and taking rest breaks. Under the benefit program's rules, Afolayan's death would need to be 'the direct and proximate result' of an injury he suffered on duty to qualify. It couldn't be the result of ordinary physical strain. The program in 2012 rejected the claim, saying the hot, dry, high climate was one factor, but not the most important. It had been more than two years since Lisa Afolayan applied and three since Nate's death. Most rejected applicants don't exercise their option to appeal to an independent hearing officer, saying they can't afford attorneys or want to get on with their lives. But Lisa Afolayan appealed with help from a border patrol union. A one-day hearing was held in late 2012. The hearing officer denied her claim more than a year later, saying the 'perfect storm' of factors causing the death didn't include a qualifying injury. Lisa and her daughters moved from California to Texas. They visited the National Law Enforcement Officers Memorial in Washington, where they saw Nate's name. Four years passed without an update on the claim. Lisa learned the union had failed to exercise its final appeal, to the program director, due to an oversight. The union didn't respond to AP emails seeking comment. Then she met Suzie Sawyer, founder and retired executive director of Concerns of Police Survivors. Sawyer had recently helped win a long battle to obtain benefits in the death of another federal agent who'd collapsed during training. 'I said, 'Lisa, this could be the fight of your life, and it could take forever,'" Sawyer recalled. "'Are you willing to do it?' She goes, 'hell yes.'' The two persuaded the program to hear the appeal even though the deadline had passed. They introduced a list of similar claims that had been granted and new evidence: A Tennessee medical examiner concluded the hot, dry environment and altitude were key factors causing Nate's organ-system failure. But the program was unmoved. The acting Bureau of Justice Assistance director upheld the denial in 2020. Such rulings usually aren't public, but Lisa fumed as she learned through contacts about some whose deaths qualified, including a trooper who had an allergic reaction to a bee sting, an intoxicated FBI agent who crashed his car, and another officer with sickle cell trait who died after a training run on a hot day. In 2022, Lisa thought she might have finally prevailed when a federal appeals court ordered the program to take another look at her application. A three-judge panel said the program erred by failing to consider whether the heat, humidity and altitude during the run were 'the type of unusual or out-of-the-ordinary climatic conditions that would qualify.' The judges also said it may have been illegal to rely on sickle cell trait for the denial under a federal law prohibiting employers from discrimination on the basis of genetic information. It was great timing: The girls were in high school and could use the monthly benefit of $1,530 to help pay for college. The family's Social Security and workers' compensation benefits would end soon. But the program was in no hurry. Nearly two years passed without a ruling despite inquiries from Afolayan and her lawyer. The Bureau of Justice Assistance director upheld the denial in February 2024, ruling that the climate on that day 15 years earlier wasn't 'unusually adverse.' The decision concluded the Genetic Information Nondiscrimination Act didn't apply since the program wasn't Afolayan's employer. Arnold & Porter, a Washington law firm now representing Afolayan pro bono, has appealed to the Court of Appeals for the Federal Circuit. Her attorney John Elwood said the program has gotten bogged down in minutiae while losing sight of the bigger picture: that an officer died during mandatory training. He said government lawyers are fighting him just as hard, 'if not harder,' than on any other case he's handled. Months after filing their briefs, oral arguments haven't been set.
Hamilton Spectator
20 hours ago
- Hamilton Spectator
A Border Patrol agent died in 2009. His widow is still fighting a backlogged US program for benefits
When her husband died after a grueling U.S. Border Patrol training program for new agents, Lisa Afolayan applied for the federal benefits promised to families of first responders whose lives are cut short in the line of duty. Sixteen years later, Afolayan and her two daughters haven't seen a penny, and program officials are defending their decisions to deny them compensation. She calls it a nightmare that too many grieving families experience. 'It just makes me so mad that we are having to fight this so hard,' said Afolayan, whose husband, Nate, had been hired to guard the U.S. border with Mexico in southern California. 'It takes a toll emotionally, and I don't think they care. To them, it's just a business. They're just pushing paper.' Afolayan's case is part of a backlog of claims plaguing the fast-growing Public Safety Officers' Benefits Program. Hundreds of families of deceased and disabled officers are waiting years to learn whether they qualify for the life-changing payments, and more are ultimately being denied, an Associated Press analysis of program data found. The program is falling far short of its goal of deciding claims within one year. Nearly 900 have been pending for longer than that, triple the number from five years earlier, in a backlog that includes cases from nearly every state, according to AP's review, which was based on program data through late April. More than 120 of those claims have been in limbo for at least five years, and roughly a dozen have languished for a decade. 'That is just outrageous that the person has to wait that long,' said Charlie Lauer, the program's general counsel in the 1980s. 'Those poor families.' Justice Department officials, who oversee the program, acknowledge the backlog. They say they're managing a surge in claims — which have more than doubled in the last five years — while making complicated decisions about whether cases meet legal criteria. In a statement, they said 'claims involving complex medical and causation issues, voluminous evidence and conflicting medical opinions take longer to determine, as do claims in various stages of appeal.' It acknowledged a few cases 'continue through the process over ten years.' Program officials wouldn't comment on Afolayan's case. Federal lawyers are asking an appeals court for a second time to uphold their denials, which blame Nate's heat- and exertion-related death on a genetic condition shared by millions of mostly Black U.S. citizens. Supporters say Lisa Afolayan's resilience in pursuing the claim has been remarkable, and grown in significance as training-related deaths like Nate's have risen. 'Your death must fit in their box, or your family's not going to be taken care of,' said Afolayan, of suburban Dallas. Their daughter, Natalee, was 3 when her father died. She recently completed her first year at the University of Texas, without the help of the higher education benefits the program provides. The officers' benefits program is decades old and has paid billions Congress created the Public Safety Officers' Benefits program in 1976, providing a one-time $50,000 payout as a guarantee for those whose loved ones die in the line of duty. The benefit was later set to adjust with inflation; today it pays $448,575. The program has awarded more than $2.4 billion. Early on, claims were often adjudicated within weeks. But the complexity increased in 1990, when Congress extended the program to some disabled officers. A 1998 law added educational benefits for spouses and children. Since 2020, Congress has passed three laws expanding eligibility — to officers who died after contracting COVID-19, first responders who died or were disabled in rescue and cleanup operations from the September 2001 attacks, and some who die by suicide. Today, the program sees 1,200 claims annually, up from 500 in 2019. The wait time for decisions and rate of denials have risen alongside the caseload. Roughly one of every three death and disability claims were rejected over the last year. U.S. Sen. Ted Cruz and other Republicans recently introduced legislation to require the program to make determinations within 270 days, expressing outrage over the case of an officer disabled in a mass shooting who's waited years for a ruling. Similar legislation died last year. One group representing families, Concerns of Police Survivors, has expressed no such concerns about the program's management. The Missouri-based nonprofit recently received a $6 million grant to continue its longstanding partnership with the Justice Department to serve deceased officers' relatives — including providing counseling, hosting memorial events and assisting with claims. 'We are very appreciative of the PSOB and their work with survivor benefits,' spokesperson Sara Slone said. 'Not all line-of-duty deaths are the same and therefore processing times will differ.' Nate Afolayan dreamed of serving his adopted country Born in Nigeria, Nate Afolayan moved to California with relatives at age 11. He became a U.S. citizen and graduated from California State University a decade later. Lisa met Nate while they worked together at a juvenile probation office. They talked, went out for lunch and felt sparks. 'The next thing you know, we were married with two kids,' she said. He decided to pursue a career in law enforcement once their second daughter was born. Lisa supported him, though she understood the danger. He spent a year working out while applying for jobs and was thrilled when the Border Patrol declared him medically fit; sent him to Artesia, New Mexico, for training; and swore him in. Nate loved his 10 weeks at the academy, Lisa said, despite needing medical treatment several times — he was shot with pepper spray in the face and became dizzy during a water-based drill. His classmates found him to be a natural leader in elite shape and chose him to speak at graduation, they recalled in interviews with investigators. He prepared a speech with the line, 'We are all warriors that stand up and fight for what's right, just and lawful.' But on April 30, 2009 — days before the ceremony — a Border Patrol official called Lisa. Nate, 29, had fainted after his final training run and was hospitalized. It was dusty and 88 degrees in the high desert that afternoon. Agents had to complete the 1.5-mile run in 13 minutes, at an altitude of 3,400 feet. Nate had warned classmates it was too hot to wear their black academy shirts, but they voted to do so anyway, records show. Nate, 29, finished in just over 11 minutes but then struggled to breathe and collapsed. Now Nate was being airlifted to a Lubbock, Texas, hospital for advanced treatment. Lisa booked a last-minute flight, arriving the next day. A doctor told her Nate's organs had shut down and they couldn't save his life. The hospital needed permission to end life-saving efforts. One nurse delivered chest compressions; another held Lisa tightly as she yelled: 'That's it! I can't take it anymore!' Lisa became a single mother. The girls were 3 and 1. Her only comfort, she said, was knowing Nate died living his dream — serving his adopted country. Sickle cell trait was cited in this benefit denial When she first applied for benefits, Lisa included the death certificate that listed heat illness as the cause of Nate's death. The aid could help her family. She'd been studying to become a nurse but had to abandon that plan. She relied on Social Security survivors' benefits and workers' compensation while working at gyms as a trainer or receptionist and dabbling in real estate. The program had paid benefits for a handful of similar training deaths, dating to a Massachusetts officer who suffered heat stroke and dehydration in 1988. But program staff wanted another opinion on Nate's death. They turned to outside forensic pathologist Dr. Stephen Cina. Cina concluded the autopsy overlooked the 'most significant factor': Nate carried sickle cell trait, a condition that's usually benign but has been linked to rare exertion-related deaths in military, sports and law enforcement training . Cina opined that exercising in a hot climate at high altitude triggered a crisis in which Nate's red blood cells became misshapen, depriving his body of oxygen. Cina, who stopped consulting for the benefits program in 2020 after hundreds of case reviews, declined to comment. Nate learned he had the condition, carried by up to 3 million U.S. Black citizens, after a blood test following his second daughter's birth. The former high school basketball player had never experienced any problems. A Border Patrol spokesperson declined to say whether academy leaders knew of the condition, which experts say can be managed with precautions such as staying hydrated, avoiding workouts in extreme temperatures and altitudes, and taking rest breaks. Under the benefit program's rules, Afolayan's death would need to be 'the direct and proximate result' of an injury he suffered on duty to qualify. It couldn't be the result of ordinary physical strain. The program in 2012 rejected the claim, saying the hot, dry, high climate was one factor, but not the most important. It had been more than two years since Lisa Afolayan applied and three since Nate's death. Lisa Afolayan's appeal was not common Most rejected applicants don't exercise their option to appeal to an independent hearing officer, saying they can't afford attorneys or want to get on with their lives. But Lisa Afolayan appealed with help from a border patrol union. A one-day hearing was held in late 2012. The hearing officer denied her claim more than a year later, saying the 'perfect storm' of factors causing the death didn't include a qualifying injury. Lisa and her daughters moved from California to Texas. They visited the National Law Enforcement Officers Memorial in Washington, where they saw Nate's name. Four years passed without an update on the claim. Lisa learned the union had failed to exercise its final appeal, to the program director, due to an oversight. The union didn't respond to AP emails seeking comment. Then she met Suzie Sawyer, founder and retired executive director of Concerns of Police Survivors. Sawyer had recently helped win a long battle to obtain benefits in the death of another federal agent who'd collapsed during training. 'I said, 'Lisa, this could be the fight of your life, and it could take forever,'' Sawyer recalled. ''Are you willing to do it?' She goes, 'hell yes.'' The two persuaded the program to hear the appeal even though the deadline had passed. They introduced a list of similar claims that had been granted and new evidence: A Tennessee medical examiner concluded the hot, dry environment and altitude were key factors causing Nate's organ-system failure. But the program was unmoved. The acting Bureau of Justice Assistance director upheld the denial in 2020. Such rulings usually aren't public, but Lisa fumed as she learned through contacts about some whose deaths qualified, including a trooper who had an allergic reaction to a bee sting, an intoxicated FBI agent who crashed his car, and another officer with sickle cell trait who died after a training run on a hot day. Today, an appeal is still pending In 2022, Lisa thought she might have finally prevailed when a federal appeals court ordered the program to take another look at her application. A three-judge panel said the program erred by failing to consider whether the heat, humidity and altitude during the run were 'the type of unusual or out-of-the-ordinary climatic conditions that would qualify.' The judges also said it may have been illegal to rely on sickle cell trait for the denial under a federal law prohibiting employers from discrimination on the basis of genetic information. It was great timing: The girls were in high school and could use the monthly benefit of $1,530 to help pay for college. The family's Social Security and workers' compensation benefits would end soon. But the program was in no hurry. Nearly two years passed without a ruling despite inquiries from Afolayan and her lawyer. The Bureau of Justice Assistance director upheld the denial in February 2024, ruling that the climate on that day 15 years earlier wasn't 'unusually adverse.' The decision concluded the Genetic Information Nondiscrimination Act didn't apply since the program wasn't Afolayan's employer. Arnold & Porter, a Washington law firm now representing Afolayan pro bono, has appealed to the Court of Appeals for the Federal Circuit. Her attorney John Elwood said the program has gotten bogged down in minutiae while losing sight of the bigger picture: that an officer died during mandatory training. He said government lawyers are fighting him just as hard, 'if not harder,' than on any other case he's handled. Months after filing their briefs, oral arguments haven't been set. 'This has been my life for 16 years,' Lisa Afolayan said. 'Sometimes I just chuckle and keep moving because what else am I going to do?' Error! Sorry, there was an error processing your request. There was a problem with the recaptcha. Please try again. You may unsubscribe at any time. By signing up, you agree to our terms of use and privacy policy . This site is protected by reCAPTCHA and the Google privacy policy and terms of service apply. Want more of the latest from us? Sign up for more at our newsletter page .
Hamilton Spectator
a day ago
- Hamilton Spectator
Hockey Canada sex assault trial ends as Crown lays out why each player should be convicted
As the Crown wrapped up its closing arguments Friday at the high-profile trial of five professional hockey players accused of sexual assault, they ended with the complainant's own words from her marathon nine days on the stand. The jury has heard — in graphic detail — her allegations about what took place inside a London, Ont., hotel room in 2018. The jury has heard — in graphic detail — her allegations about what took place inside a London, Ont., hotel room in 2018. 'They were objectifying me, they were literally in there laughing at me,' the woman had testified. 'Literally any one of those men could have stood up and said, 'This isn't right.' And no one did ... They didn't want to think about if I was actually OK, or if I was actually consenting.' After hearing nearly six weeks of evidence and a full week of closing arguments from the five defence teams and the Crown, it's now up to Superior Court Justice Maria Carroccia to decide the guilt or innocence of Alex Formenton, Michael McLeod, Carter Hart, Dillon Dubé and Cal Foote, in a judgment set to be delivered July 24. The prosecutors and defence lawyers shook hands as the trial finally came to an end Friday afternoon at the London, Ont., courthouse, after having originally started in April as a jury trial, but is now a judge-alone case . Carroccia thanked the lawyers for the 'very professional manner' in which they handled the case, 'which we all know has garnered a lot of public attention.' A pair of stills from videos showing the dance floor inside Jack's Bar in London, Ont., on the night of June 18-19, 2018, show the complainant with world junior team members Dillon Dubé, circled left, and Michael McLeod, right. All members of the 2018 Canadian world junior championship team — and most of them playing in the NHL by the time of their arrests last year — the five men stand accused of sexually assaulting the then-20-year-old complainant in a room at the Delta Armouries hotel in London in the early hours of June 19, 2018, while the team was in town to attend the Hockey Canada Foundation's annual Gala & Golf fundraising event. The complainant had met McLeod at Jack's Bar and returned to his room where they had consensual sex, only for multiple men to come in afterward, some prompted by a group chat text from McLeod about a '3 way.' The Crown has alleged that McLeod had intercourse with the complainant a second time in the hotel room's bathroom; that Formenton separately had intercourse with the complainant in the bathroom; that McLeod, Hart and Dubé obtained oral sex from the woman; that Dubé slapped her naked buttocks, and that Foote did the splits over her head and his genitals 'grazed' her face. Prosecutors have argued that the men failed to take reasonable steps to confirm the woman's consent to each act, and that she never made an 'affirmative, voluntary choice.' A screenshot of a group chat involving members of Canada's 2018 world junior championship team. The Crown contends the complainant either didn't voluntarily consent, or her consent was cancelled by the fact she was scared and intimidated to be in a hotel room full of men she didn't know while she was intoxicated as well as naked after having had sex with McLeod. The defence, meanwhile, has argued that the complainant was consenting throughout the night and fabricated her version of events as she tried to make stick her allegations from a $3.5-million sexual assault lawsuit filed against Hockey Canada in 2022, which the sports organization quickly settled for an undisclosed sum. The prosecution further alleges that through the use of a group chat, the players created a false narrative that the complainant was the aggressor and repeatedly demanded to have sex with men in the room — a Crown argument that has faced resistance from the judge. The Crown has also asked the judge to reject some of the testimony of their own player witnesses, something Carroccia described as 'interesting' on Friday. 'Effectively, what you're saying is where it doesn't help the Crown, don't accept it, and where it does help the Crown, accept it,' the judge said. On Friday, the prosecution finished its closing arguments by outlining its case for a conviction against each accused man. 'This is a unique case where, in the Crown's submission, no matter which facts you accept amongst the sometimes challenging puzzle of evidence, there is a clear path to conviction for each of the five accused,' Crown attorney Heather Donkers told Carroccia. 'Mr. McLeod is the one who orchestrated this whole sordid night,' Crown attorney Meaghan Cunningham said Friday. Michael McLeod arrives at court with his lawyers. 'Knowing that (the complainant) 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.' McLeod is the only accused man facing two charges — sexual assault and being a party to a sexual assault, for allegedly encouraging his teammates to engage in sexual activity with the complainant when he knew she wasn't consenting. In a 2018 police interview, he told a detective he received oral sex from the complainant and engaged in intercourse with her again before she left the hotel room, but omitted the fact he texted a players' group chat to come to his room for a '3 way,' as well as messaging others directly. The Crown argued Friday that McLeod is one of three men the complainant testified she performed oral sex on while she was on a bedsheet on the ground, although she herself did not identify McLeod as one of the three. The Crown said there were no words spoken between McLeod and the complainant at that time to confirm her consent. The Crown also asked that Carroccia accept that another instance of oral sex happened while McLeod was on the bed. To this, the judge pointed out that court heard testimony about the complainant getting up on the bed and placing McLeod's penis in her mouth without him actually doing anything — evidence that Donkers described as ambiguous and not an indication of consent. 'You can't possibly be saying that a woman who puts a man's penis in her mouth is not communicating that she wishes to,' Carroccia said in response. This led to a back-and-forth between the judge and Crown attorney. 'That is what I'm saying,' Donkers replied. 'Otherwise, there would never be a sexual assault that involves oral sex.' 'That's not true,' Carroccia shot back, saying Donkers misunderstood the point. The judge then put it in the form of a question: 'If a man does nothing and a woman takes his penis and puts it in her mouth, he's committing a sexual assault without asking her if that's OK?' Donkers apologized. She explained the Crown position that doing the act doesn't communicate consent, but agreed that if the judge were to find it was 'one-directional entirely,' that may raise a doubt as to whether that particular allegation had been proven. Donkers did not address at all the allegation involving intercourse, deferring instead to the Crown's brief written arguments. McLeod had told police he had hopped in the shower and the complainant came in with him and they had sex. In court, the woman testified about being tired by that point and that she felt it was a 'continuation' of the other sexual acts in the room — 'I didn't look at it as something I really wanted to do, just felt like one last thing I needed to do to go.' The Crown argues in its written materials that there is no evidence McLeod took any steps to ascertain the complainant's consent. As for being a party to sexual assault, Cunningham argued that McLeod can still be found guilty as long the judge concludes that a sexual assault happened in the room, regardless of whether any specific person is convicted. For example, she referred to the complainant's testimony of multiple men slapping and spitting on her. The whole reason the men knew to come to the room was because of McLeod, Cunningham argued, and he ensured throughout the night that the sexual activity could continue by calming the complainant down when she became upset, or by telling other players in the room not to take out their phones to record anything. McLeod made two cellphone recordings of the complainant; in one, she says 'I'm OK with this,' while in another, she says 'It was all consensual.' Cunningham argued the videos cannot be used as evidence of consent. 'They are also not evidence of any reasonable steps taken to sincerely ascertain valid consent in law,' she said. 'At their highest, they're the kind of token, lip-service, box-checking that the Court of Appeal says is not a reasonable step.' The first video doesn't actually establish to what the complainant was consenting and with whom, Cunningham said, while the second video was taken after the sexual activity and, the Crown highlighted, consent can't be given after the fact. The complainant herself testified she was just saying what she thought the men wanted to hear. The only accused man to testify in his own defence, Hart told the judge that in response to the complainant's demands for intercourse while she was on the ground, he asked for a 'blowie, meaning blowjob,' she said 'yeah' or 'sure,' moved toward him, helped pull down his pants, and performed oral sex about 30 seconds to a minute. Carter Hart outside court with his lawyers. Should the judge accept his account, Donkers argued he should have taken more steps to confirm the complainant's consent, given her obvious vulnerability. He could have taken her aside, asked for her name, her desires, her limitations, or whether this was something she truly wanted. In response to that, Carroccia pointed out the testimony of the Crown's witnesses about the complainant demanding to have sex. 'You just said to me he could have talked to her to find out more about her wants,' Carroccia said, 'but if I accept the evidence from your own witnesses, she was saying what her wants were, correct?' Donkers said that the witnesses testified about the complainant demanding intercourse, not oral sex. While Hart could only recall that instance of oral sex, he later said it was possible it happened again , after the Crown pointed out in cross-examination that McLeod told police he saw Hart receive oral sex twice. The complainant herself testified about giving oral sex to about three men in quick succession, though she never identified Hart to the police, nor that she performed oral sex on him twice. Players Brett Howden and Tyler Steenbergen identified Hart and McLeod as two of the three, while Dubé identified himself to police as the third. Howden testified he believes he saw Hart receive oral sex twice while in the room. 'So I should accept their evidence that Carter Hart probably got oral sex twice, but then find they're mistaken about Dillon Dubé?' the judge asked. 'If they're watching Carter Hart getting oral sex twice, they blink and miss Dillon Dubé? I just don't follow that argument.' Donkers countered that they might not have noticed Dubé because it happened so quickly. Formenton told police in 2018 that he followed the complainant into the bathroom after she had been demanding to have sex with men. There's a lack of evidence as to whether there was any conversation in the bathroom between the two, but Donkers argued that again, no steps were taken to confirm the complainant's consent before they had vaginal intercourse. Alex Formenton and his lawyers. But Carroccia had a question: What to make of Howden's testimony that he recalled that in response to the complainant's demands, Formenton said something along the lines of not wanting to do it front of everybody, and then he followed the complainant into the bathroom. 'Not so ambiguous, is it, in those circumstances?' Carroccia said. 'It's consistent with what she's offering, what she said, if I find that that was the sequence of events.' The judge reminded Donkers that Formenton doesn't have to prove that scenario, but rather the onus is on the Crown 'to disprove that that's what happened.' Donkers said the Crown doesn't have to prove or disprove 'any particular fact and issue beyond a reasonable doubt, what we have to prove is he's guilty of sexual assault.' 'I know that, Ms. Donkers,' the judge replied. While the Crown has argued that the defence has engaged in myth-based reasoning when questioning the complainant's behaviour in the room, Formenton's lawyer Hilary Dudding countered that, in fact, the prosecution was doing that. The Crown's reasoning 'really implies that for a woman to be assertively asking for sex in a group scenario is so inherently bizarre and odd that it requires some explanation other than that woman is consenting,' Dudding said. 'It's stereotypical thinking about what types of sex people like and don't like, what a woman might choose or not choose.' Dubé acknowledged in his 2018 police interview that he briefly received oral sex from the complainant, but omitted the fact that he slapped her naked buttocks. He did admit to slapping the complainant once or twice to a Hockey Canada investigator in 2022, in a statement that was excluded from the trial due to the 'unfair and prejudicial' way it was obtained. The complainant testified that multiple men were slapping her buttocks and that it hurt. The Crown argued that Carroccia should find Dubé slapped her twice — while she was on the ground after giving him oral sex, as witnessed by Steenbergen and on the bed while she was performing oral sex on McLeod, as witnessed by Howden. Dillon Dubé outside court. Dubé told police the oral sex happened in quick succession as the complainant performed on him, Hart, and McLeod — 'No chance for subjective consent,' Donkers said, but even if there was, it was cancelled by the complainant's fear of being in the room. Donkers argued that Dubé only mentioned getting oral sex to police because he 'knew he could try and portray that as consensual, based on comments he says (the complainant) was making about sex,' while he didn't mention the slapping because he knew that went too far as there is 'absolutely zero evidence' that the woman consented to that. 'He could not have had any legitimate belief she had communicated a willingness to be touched on her buttocks, gentle or hard, it does not matter,' Donkers said. 'That belief would have had to come from the myth that just because she had agreed to other things or appeared to agree to other things, that she would be OK being slapped. That is not a defence in law.' It's undisputed that Foote did the splits over the woman, Donkers said, but what's disputed is whether he was naked from the waist down, over which part of her body he did the splits, and whether his genitals touched her face. Court heard that the spits was a 'party trick' Foote often did, including on the dance floor at Jack's earlier that evening in June 2018. Cal Foote, centre, with his lawyers. Steenbergen partially witnessed Foote doing the splits, but couldn't tell if he was clothed below the waist, while Hart was adamant that Foote was wearing clothes and he did not physically touch the complainant, whom Hart said was laughing. The complainant 'viscerally testified' about someone doing the splits 'and having a penis in my face,' Donkers pointed out, although the complainant wasn't able to identify Foote. Given that this was a hotel room full of men 'amped up from a night of drinking' and who knew sexual activity with the woman was the focus in the room, it is 'abundantly clear' that Foote was called to the room to engage with the woman sexually as well, and specifically by doing the naked splits over her body, Donkers argued. 'This extraordinary event of June 19 for them called for extraordinary measures, not just an ordinary party trick they had seen as early as the night before at Jack's,' Donkers said. Cal Foote does the splits at Jack's Bar in London on the night of June 18-19, 2018, while teammates Brett Howden (on the far side of Foote, in white with a lighter-coloured backwards ball cap) and Dillon Dubé (in white on the near side of Foote) clear space on the dance floor. But even if the judge were to accept Hart's version that Foote did the splits while clothed and didn't touch the complainant, the judge should still conclude it was a sexual assault, Donkers said — even though the complainant maintained she was touched. 'It's reasonable to assume that in (Hart's) version of events, she thinks the touching is about to happen and in vulnerable circumstances of a sexual nature,' Donkers said. In the excluded statements from the Hockey Canada 2022 investigation that cannot form part of Carroccia's decision, both Formenton and Dubé said they witnessed Foote doing the splits, with Formenton specifying he wasn't wearing pants. 'So she's laying on the ground parallel between the beds,' Formenton said. 'I remember he takes pants off, top clothes still on, does splits over her upper body.' The players were 'compelled' to sit for an interview with Hockey Canada. But they weren't told Error! Sorry, there was an error processing your request. There was a problem with the recaptcha. Please try again. You may unsubscribe at any time. By signing up, you agree to our terms of use and privacy policy . This site is protected by reCAPTCHA and the Google privacy policy and terms of service apply. Want more of the latest from us? Sign up for more at our newsletter page .
