BURST
The Crown says the defence is relying on “myths and stereotypes” about sexual assault to defend five 2018 Team Canada world junior hockey players.
The defence says the Crown is relying on “a thoroughly incredible and unreliable” complainant to suggest the men didn’t obtain the appropriate legal consent for sex.
It’s now up to Superior Court Justice Maria Carroccia, who is expected to deliver her decision on July 24, to sort out the evidence at what’s been both a marathon and high-profile trial that has put what happened in Room 209 at the Delta Armouries hotel under the legal microscope.
On the final day of the trial Friday, Carroccia heard the last of the Crown’s lengthy final argument and the defence rebuttal of the prosecution’s insistence that the complainant was vulnerable, drunk and traumatized – and not the eager participant the defence says she was – when 10 teammates showed up in Michael McLeod’s hotel room in the early morning of June 19, 2018.
McLeod, 26, Carter Hart, 26, Dillon Dube, 26, Alex Formenton, 25, and Cal Foote, 26, have each pleaded not guilty to sexual assault. McLeod has also pleaded not guilty to a second charge of sexual assault for being a party to the offence.
The case, which has garnered outsized national and international media attention, surrounds a night of partying in London on June 18 and 19, 2018, when the team was in the city for a Hockey Canada gala and golf tournament celebrating Canada’s gold medal months earlier.
Some of the players ended up at Jack’s bar on Richmond Row. It’s where McLeod met the woman, who was 20, and the two of them returned to the Delta Armouries hotel, where the team was staying, for consensual sex.
It’s what happened in the room after the consensual encounter that’s under scrutiny. The woman has testified, and the Crown contends that she was shocked when she emerged naked from the hotel room bathroom to see that a group of players arrived at McLeod’s room after he invited them for sexual activities.
Along with being drunk, the woman said she had a trauma response and felt her mind separate from her body to cope with the demands of the men who directed her to participate in several sexual activities.
The defence has pointed to the woman as the aggressor and instigator of the sexual activity, first masturbating in front of them while on a bedsheet spread onto the floor, then begging and taunting the men to have sex with her. Some took her up on her offers and insist she consented to the activities.
London police investigated the allegations in 2018, but closed the case when it was determined there weren’t grounds to lay charges because the evidence didn’t show that the woman was unable to consent to sex because she was so intoxicated, as she claimed.
However, the case was reopened in 2022 after the woman launched a $3.55-million lawsuit against Hockey Canada, the Canadian Hockey League and eight unnamed players. Hockey Canada settled it in a month, without telling the players about the lawsuit or the settlement.
Consent and the law surrounding it has always been the central issue. Crown attorney Meaghan Cunningham said the defence leaned on victim shaming and blaming for what happened in Room 209 and suggested that the woman, now 27, chose to “abandon restraint” and offer sex to the men.
Cunningham said that is a stereotype: That “women signal their sexual availability by drinking and going out and getting drunk and dancing and flirting on the dance floor, that all of these things make it more likely that she also chose to engage in sexual activity with the men back at the hotel.
“It’s not only a myth, but I submit it is not what happened here on the evidence,” the Crown said.
Cunningham and assistant Crown attorney Heather Donkers argued that the law required the men to take further steps to ensure the woman was consenting to the sexual activity and “merely suspecting, guessing, supposing, or hoping that the complainant said yes through her words or actions is insufficient.”
“It has to be a belief that she is communicating something, not just ‘I think this is what was going on in her mind when she was doing this’,” Cunningham said.
“In that room, there was a very high level of vulnerability. She was naked and there were 10 of them. They all knew each other and she was a stranger to all of them,” Cunningham said. “These are circumstances where the law demands more steps be taken than in other situations. The reasonable steps requirement is at a very high level in the circumstances that were known to everyone in that room.
“At no time did anyone on any of the evidence here attempt to engage in a sincere conversation with (the woman) about what she truly wanted to happen,” Cunningham said. “At no point does someone say, ‘Hey, do you want to slow this down?’”
Cunningham reminded Carroccia that the men in the room found the woman’s conduct to be “bizarre,” “strange” and “outrageous,” but no one said if they ever asked her, “Are you feeling OK? Is this what you really want to be doing?”
Two cellphone videos filmed by McLeod that appear to show the woman confirming she consented to the sexual activity “are not evidence of consent,” Cunningham said, adding they are only indications she is agreeing with McLeod and affirming what he wanted her to say.
Donkers reviewed each of the accusations against the men, arguing that none of them received the legal consent for oral sex, vaginal sex, spanking, or, in Foote’s case, doing the splits over the woman. All of them should be found guilty, she said.
Cunningham summarized what the Crown says happened. After having consensual sex with the woman McLeod “thought it would be fun to invite his teammates over to enjoy her as well,” the Crown said. He sent text messages until 10 people were in the room.
“(The woman’s) testimony about her mental state in the room that night makes perfect sense when you view it in context,” Cunningham said. “She is not making logical choices because that is not how she responded to the highly stressful, unpredictable situation she found herself in.”
But the defence rebuttal zeroed in on the Crown’s shifting theory, including a written submission to the judge last week that said she should accept that the woman wasn’t asking for sex in the room, then conceding in argument that she might have been asking the men for sex.
McLeod’s defence lawyer David Humphrey said that was “a reasonable concession in recognition of the overwhelming evidence,” and also supports the defence position – “that (the woman) was consenting. She was communicating consent throughout.”
There’s also a flaw in the Crown’s theory, the defence said, about the sequence of events. The woman testified that after McLeod brought players Boris Katchouk and Taylor Raddysh into the room and suggested oral sex, the men left quickly and the woman, who had been under the covers in bed, retreated in fear into the bathroom.
Piecing together the timeline using hotel lobby surveillance video, there was at least 15 minutes between Katchouk leaving the room and other people showing up. Based on the evidence, the woman was in the bathroom the entire time, naked, even though her clothing was there and the sex with McLeod was finished.
“So on her evidence, she doesn’t put her clothes on, she opens the door, sees more men and instead of just stepping back into the privacy and security of the bathroom, she emerges naked, walks into a room full of men and sits naked on the bed,” Humphrey said.
“That is consistent with her not being surprised men were in the room and consistent with her wanting to have sex with them.”
Hart’s defence lawyer Riaz Sayani went further. The woman, he said, testified to having a trauma response when she saw Katchouk and Raddysh, yet no traumatic event had happened at that point.
Also, the woman didn’t report being frightened or scared when she was interviewed by police in 2018, but reported fear and terror in 2022. Sayani said nothing in case law about trauma suggests that someone can “forget the central fact they were scared during the traumatic encounter, let alone to do so for several years, as the complainant says.”
The final word went to Foote’s defence lawyer Juliana Greenspan, who noted that during the Crown’s PowerPoint while making final arguments, one of the slides read “no evidence from Callan Foote.”
Greenspan said the judge knows that the note was illegal and “an inappropriate, unjust and inexcusable infringement on my client’s inalienable right to silence.” If a jury were still hearing the case, Greenspan said she would have asked for a mistrial.
She suggested the Crown created the slide because it has been “preoccupied with litigating the public opinion through the media.”
“We leave all accused in Your Honour’s hands as you consider all of the actual evidence in this case through the continued lens of the presumption of innocence and the Crown’s significant burden of proof,” Greenspan said.