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Crown Analyzes 'Consent' Videos, Defense Replies In Final Day Of Hockey Canada Sexual Assault Trial
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- Crown Analyzes 'Consent' Videos, Defense Replies In Final Day Of Hockey Canada Sexual Assault Trial
Warning: coverage of the Hockey Canada trial includes details of alleged sexual assault that may be disturbing to readers.
The Crown ended its closing arguments Friday in the Hockey Canada sexual assault trial , putting a major focus on the two "consent" videos filmed on the morning of the alleged sexual assault.
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Two cellphone videos shown in court were taken inside Room 209 of the Delta Armouries hotel in London, Ont., in the early morning of June 19, 2018.
During these early morning hours, the complainant, referred to as E.M. due to a publication ban, alleges she was sexually assaulted in the London hotel room. The five accused – Michael McLeod, Carter Hart, Alex Formenton, Dillon Dube and Cal Foote – are all former members of Canada's 2018 world junior men's hockey team, who were in London for a ring ceremony and gala put on by Hockey Canada.
All five men have pleaded not guilty to charges of sexual assault, with McLeod pleading not guilty to an additional charge as a party to the offense.
Crown attorney Meaghan Cunningham revisited the cellphone videos from the hotel room on Friday. The first of these videos was taken by McLeod slightly after 3:00 a.m. on June 19.
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"You're OK with this, though, right?" McLeod asks E.M.
"I'm OK with this," E.M. said.
The second video was taken just before 4:30 a.m.
"Say it," McLeod said.
E.M. replied that it was "all consensual."
"What else?" McLeod asked.
"You are so paranoid," E.M. said. "Holy. I enjoyed it. It was fine. I'm so sober. That's why I can't do this right now."
Cunningham argued before the presiding judge, Justice Maria Carroccia, that these two videos were not a valid way for McLeod or any of the others to obtain consent from the complainant.
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"That is not a reasonable step to ascertain valid consent," Cunningham said. "At the very least, it is Mr. McLeod relying on a mistake of law about what consent is, and that is no foundation for defense of honest mistaken belief in communicated consent."
Cunningham also pointed out the wording McLeod used in the videos. She suggested that the use of phrases, such as "say it" and "what else," paints the picture that McLeod is the one "directing" what should be said in the video.
"Your honor should find that when Mr. McLeod is saying 'say it' and 'what else,' that indicates he's the one directing what she should say in this video," Cunningham said. "If she has been begging people for sex, calling them out for not doing stuff with her, why would he be telling her to say it's 'all consensual' and 'it was fine, I enjoyed it.' Wouldn't we expect him to get her to confirm that she was the one asking people to do stuff or to confirm that she was begging for sex all night?"
Hockey Canada logo (Tom Szczerbowski-Imagn Images)
The Crown's submissions continued as assistant Crown attorney Heather Donkers argued why the five accused should be found guilty, beginning with Hart.
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Hart, who was the only accused player to testify in the trial, said previously that during his time in the hotel room, he asked E.M. for a "blowie" (oral sex) after he heard her asking the men in the room for sex. However, Donkers said that it was important to note that the complainant never directly offered oral sex, and that Hart did not take the necessary steps to obtain consent.
"(Hart) did not have a conversation with her, either to ascertain what brought her there, what she was interested in, what her limits were, what contraception should be potentially used," Donkers said.
Donkers argued that Dube did not mention slapping the buttocks of the complainant in his 2018 police interview and that he called members of the team, telling them not to mention the slapping to investigators. Donkers suggested Dube did not receive valid consent for his actions, saying he took "absolutely zero steps" to make sure E.M. was consenting to the slapping.
In the case of Formenton, Donkers argued there "wasn't any conversation" involved before the two had sex in the hotel bathroom, and that for E.M., "it just felt like a continuation of what was going on." And in the case of Foote allegedly doing the splits naked over top of E.M. and grazing his genitals across her face, Donkers argued that the defense saying he was clothed during this act doesn't add up.
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"If all they wanted was for someone to partway squat over her torso, any one of the men already in the room could have done that," Donkers said.
The Hockey Canada sexual assault trial is taking place at Ontario Superior Court in London, Ont. (Anthony Fava)
Once the Crown finished its closing arguments, the defense had its chance to reply.
McLeod's lawyer, David Humphrey , called back to an argument made in the Crown's closing submissions that McLeod's police statement was flawed and "paints him and his friends in the best light." Humphrey denied this, saying that McLeod's statement to police was not meant to be "deflecting guilt."
One of Formenton's lawyers , Hillary Dudding, referenced the Crown's argument that the men should have checked up on E.M. if they thought she was acting strangely. Dudding suggested that this thinking adheres to "stereotypes" of what a woman should and shouldn't do.
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"That reasoning implies that a woman assertively asking for sex is so inherently bizarre and odd that it requires some kind of explanation, other than she is actually excited about it," Dudding said.
Foote's lawyer, Julianna Greenspan, concluded the defense's closing submissions, arguing that despite the Crown's stance, there was "no fear" in McLeod's hotel room during the alleged sexual assault.
"There is no credible or reliable evidence of fear in that room that night, and injecting such generalized notions of women and women's fears does not and should not make it so in this case," Greenspan said.
With that, the trial reached its conclusion.
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Justice Carroccia thanked the Crown and defense teams for their work over the past eight weeks, their "very helpful submissions" and their "very professional manner." As the judge adjourned the trial, both legal teams exchanged pleasantries with one another and shook hands.
While the trial may be done, a verdict in the matter is currently scheduled to be delivered on July 24, 2025, at 10 a.m. ET.
