This started with “a white lie.”
It’s ended up in a London courtroom where five 2018 Team Canada junior hockey players are on trial on sexual assault allegations that Michael McLeod’s defence lawyer David Humphrey called “preposterous.”
Closing arguments began Monday in the high-profile trial, where Humphrey and Carter Hart’s defence lawyer Megan Savard made submissions, with Humphrey calling the 27-year-old complainant in the case “a willing and enthusiastic participant” in what happened in Room 209 of the Delta Armouries hotel in London on June 19, 2018.
Humphrey laid out for Superior Court Justice Maria Carroccia “an embarrassment of riches” for the defence when putting together a long list of credibility and reliability issues with the woman’s testimony.
McLeod, 27, Hart, 26, Alex Formenton, 25, Dillon Dube, 26, and Cal Foote, 26, all members of the championship team, have pleaded not guilty to sexual assault at the hotel where the team was staying for a Hockey Canada gala and golf tournament.
McLeod also has pleaded not guilty to a second charge of sexual assault for being a party to an offence. He and some of the team were celebrating at Jack’s bar on Richmond Row when he met the woman, who was 20 at the time and whose identity is protected by court order, and brought her back to the hotel for consensual sex.
The woman alleges McLeod called other teammates into the room – up to 10 at one point – where she was repeatedly sexually abused. But all five accused and eyewitnesses say the woman was the aggressor who begged and taunted them to have sex with her.
Carroccia has heard over the course of trial that Formenton had sexual intercourse; McLeod, Hart and Dube received oral sex; Dube slapped the woman’s behind; and Foote did the splits over her while she was naked on the floor. The woman testified, and claimed in her 2022 lawsuit, that she was scared and terrorized.
As is the protocol at criminal trials, the defence teams are making their closing arguments first because they called evidence.
There were issues from the beginning. Her mother had found her sobbing in the shower after coming home from the hotel at 5 a.m. Humphrey said the woman didn’t want to say that she was drinking, partying and willingly participating in sexual activity.
“It suited her purpose to present herself as a victim and so she creates this narrative that insulates herself from bearing personal responsibility,” he said, and she told her mother she was so drunk she was unable to consent.
“But what started as an understandable white lie shared in private with her mother snowballed beyond her control into a criminal investigation,” he said.
Humphrey pointed to the woman’s original statement to London police Det. Stephen Newton in June 2018 after her mother had contacted them. Newton “had concerns that her decision to speak to the police was not her own,” Humphrey said. The woman changed her mind about whether to pursue charges five times, he said.
By February 2019, the police closed the investigation because there were no grounds to lay charges when security video from the hotel showed she was “nowhere near the point of incapacity due to intoxication,” Humphrey said, and Newton had concluded “there were elements of consent in her active participation in the sexual interactions.”
Humphrey said three years later the woman “retools her narrative to support her $3.55-million lawsuit against Hockey Canada and others,” supplementing “her ‘too drunk to consent’ narrative to a ‘too terrified to consent’ narrative.”
Humphrey pointed out her “new” civil allegations in April 2022 secured “a quick settlement from Hockey Canada” a month later.
“Extremely quick, quite frankly,” Carroccia said to Humphrey.
The eight unnamed players in the lawsuit didn’t even know about it until it was settled, Humphrey said. He said “we may have a different world” if the men had been able to publicly respond with statements of defence.
“We wouldn’t have burdened with years of one-sided public narrative,” Humphrey said, instead of the case becoming “a national cause célèbre.”
Humphrey said the woman converted “a planned night out with co-workers … into an alcohol-fuelled night dancing and partying” ultimately leading to “disinhibited sexual activity” and her own choice to take the night into a different direction.
The woman “is perfectly entitled to do that,” Humphrey said, and “it’s natural that young people, especially under the influence of alcohol, make regrettable choices to give into sexual attractions, but as sobriety returns, regret and embarrassment often emerge and concern for personal reputation is natural.”
He said “undoubtedly” the woman would prefer her friends, family and boyfriend see her “as a victim of men plying her with liquor to the point of incapacity” and she may not want to acknowledge she was “sexually adventurous” and her feelings had been hurt because McLeod and his roommate Formenton “had been disrespectful and rude at the end of the night.”
Humphrey said the woman’s version is contradicted by what’s clear in the security videos from both Jack’s and the Delta. “Thank goodness we have those videos,” he said, because they tell a different story.
Other players, specifically Crown witnesses Tyler Steenbergen and Brett Howden, testified they were in the room when the woman was naked and asking for sex, Humphrey said. “It’s our submission that evidence of communicated consent is overwhelming,” he said.
“Even she acknowledges that it’s possible she was saying these things,” Humphrey said, which he said is “bizarre.
“It’s preposterous to say, ‘Somehow I came up with this concept, that the way to get out of the room is to invite everybody to have sex’,” he said.
Humphrey also pointed to McLeod’s “consent” videos that he filmed showing the woman affirming she gave consent to all the sexual activity where she “looks and sounds like someone not significantly affected by alcohol.”
“Mr. McLeod was right in his instinct to get some recorded confirmation of her consent,” Humphrey said.
Savard argued Hart’s encounter with the woman was “brief and unambiguously consensual.”
Hart, who Savard said was “frank and forthright” in his testimony, was the only accused to testify. He described being drunk and excited to see a naked woman in the room who was asking for sexual encounters, how he asked for oral sex and how she consented.
“It does make sense that Mr. Hart would seek explicit consent to oral sex,“ Savard said. “This was by everyone’s account, a surreal sexual situation… And it is natural in that circumstance to ask a question aimed at making sure that this is real, that it’s not a dream that is too good to be true,” she said.
Also, “it was a negotiation that led to an activity that was clearly consensual for both,” Savard said.
Savard asked Carroccia to accept the evidence of Steenbergen and Howden that there was a single act of oral sex performed on Hart and there was no “trio” of oral sex encounters as described by the woman, who didn’t even identify Hart during the initial police investigation.
If there is any stereotype running through this trial, “it is this insidious idea that hockey players by virtue of the fact that they play closely together on a team in professional sports naturally protect their own,” Savard said.
But she asked Carroccia to look at Hart’s testimony, how he wasn’t particularly helpful to the co-defendant’s cases. “The Crown’s path to success depends on the Crown convincing your honour that these young men are effectively working in concert.”
“These men are former professional colleagues who worked together for three weeks in 2018, did not know each other well beforehand, have not seen each other meaningfully since, and have no reason to lie for each other,” Savard said.
She said there is “an evidentiary gap on the issue of oppressive or coercive circumstances.” There was no physical coercion, no blocking of the door, no threats, no use of force, she said.
The woman had little memory of the sexual activities, Savard said. The woman also testified she went on “auto-pilot” and adopted “a porn star persona” and “her body did a number of things that her mind hadn’t authorized,” the lawyer said.
Even though Savard said the defence’s primary position is that the woman “was consenting enthusiastically, regretting it later,” the woman’s testimony suggests that her initial state of mind when she looked out from the bathroom after having sex with McLeod and saw a group of men was “worry,” which Savard argued isn’t traumatic.
“It is not in and of itself something that causes your mind to detach from your body and float onto the ceiling and remove your ability to choose,” she said.
Savard agreed that when there are coercive factors present, “trauma can make you do all sorts of non-intuitive things… but the important piece here is that nothing traumatic has happened yet.
“We’re not talking about a victim of sexual assault… We’re taking about a woman who’s just had a consensual experience and is encountering not an assault, but people coming into a room. Not an assault, not a violation of her sexual integrity.”
Savard suggested the woman went back into the hotel room and “sat down amongst those men because she wanted to be there.”
The trial continues with more closing submissions Tuesday.
