The female complainant in the high-profile world junior sexual assault trial “chose to abandon restraint” the night of the alleged acts, a defence lawyer for one of the players says.
David Humphrey, lawyer for Michael McLeod, told Superior Court Justice Maria Carroccia Monday the complainant, known as E.M. in court documents, created a “false narrative” in the face of regret after meeting McLeod and his teammates in London, Ont., in June 2018.
“This is a case where the defence has an embarrassment of riches — a cornucopia of compelling credibility and reliability concerns in E.M.’s testimony,” Humphrey told Carroccia during his closing submissions inside a London courtroom.
“She’s created a false narrative in which she bears no responsibility.”
Closing submissions began Monday after the defence rested its case last week. The trial, which has been proceeding by judge alone after two juries were dismissed, began in late April.
McLeod, Carter Hart, Alex Formenton, Dillon Dube and Callan Foote have pleaded not guilty to sexual assault stemming from what the Crown alleges was non-consensual group sex with the then 20-year-old woman in McLeod’s hotel room.
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McLeod has also pleaded not guilty to an additional charge of being a party to the offence of sexual assault.
Defence lawyers said last week they would collaborate to avoid repetition during their submissions, and that they’d need two-to-three hours each. Crown prosecutors said they’d need a day for their closing submissions.
‘Her communication of consent is overwhelming’: Humphrey
Court has heard that the team was in London for events marking its gold-medal performance at that year’s championship, and that the complainant was out with friends when they met at a downtown bar on June 18, 2018.
After being with McLeod and his teammates at the bar, E.M. would go on to have consensual sex with McLeod in his room in the early morning hours of June 19. Court has heard that E.M., who testified she was drunk and not of clear mind, was in the washroom after she had sex with McLeod and came out to a group of men in the room allegedly invited for a “3 way” by McLeod in a group chat.
It was then that the Crown alleges several sexual acts took place without E.M.’s consent.
The 27-year-old woman, whose identity is protected under a standard publication ban, was subject to intense cross-examination during her nearly two weeks on the stand.
Defence lawyers have suggested E.M. wasn’t as drunk as she has testified she was, wanted a “wild night” with the players and was “egging” them on to have sex with her, and accused her of having a “clear agenda” at the trial.
E.M. has pushed back against those claims and at points outright rejected them, saying she was coaxed into staying in the room, was disrespected and was taken advantage of by the group, who she said “could see I was out of my mind.”
Only Hart testified at the trial, while the other players’ lawyers cited evidence and police interviews that were already played out in court as part of the reasons why they weren’t calling evidence.
Humphrey argued Monday E.M. “made a choice to take that night in a different direction” and when her sobriety returned, “regret emerges.”
He argued when E.M.’s mother found her crying after she got home, she told her a “white lie that snowballed into a criminal investigation” because she regretted drinking too much and cheating on her boyfriend with a group of men.
Humphrey said her mother pressured her into going to the police, and with E.M. being a self-identifying people-pleaser, the pressure got to a point where she could no longer resist. After police in 2018 decided not to lay charges, E.M., “armed” with that information, “retools her narrative” to support her lawsuit against Hockey Canada.
“She is not an honest or reliable witness,” Humphrey said.
“Her communication of consent is overwhelming.”
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