Justice Maria Carroccia, left, looks out over the courtroom in London, Ont., on April 22 in this sketch. Dillon Dubé, Carter Hart, Michael McLeod, Cal Foote and Alex Formenton, five former members of Canada's world junior hockey team, have pleaded not guilty.Alexandra Newbould/The Canadian Press
The credibility and character of the complainant were on trial during her sixth day in the witness box in the sexual assault case against five former members of Canada‘s 2018 world junior hockey team.
Under cross-examination by defence lawyer Daniel Brown, the complainant, who is known publicly as E.M., was questioned for hours on Friday about her actions at Jack’s bar on the night of the alleged attack – from the amount of alcohol she consumed, to her ability to take responsibility for her choices, to the inconsistencies within a statement to police in 2018.
E.M., whose identity is protected by a publication ban, pushed back. She acknowledged the errors in the statement but said her core narrative has remained consistent, and that she did “not make the choice” to be sexually assaulted, as she alleges.
Court has heard that on June 18, 2018, E.M. met members of Canada‘s world junior hockey team at Jack’s bar in downtown London, Ont. The men were in town for a Hockey Canada gala, at which the team was being honoured for its win at the world championships earlier that year. E.M. has told the court that after a night of drinking and dancing at Jack’s, she left with player Michael McLeod and had consensual sex at a nearby hotel.
She alleges that after they finished, Mr. McLeod texted his teammates to come to the room to engage in sexual activity without her knowledge. (The defence has asserted it was E.M. who told Mr. McLeod to invite his teammates to the room.)
Mr. McLeod, Carter Hart, Alex Formenton, Dillon Dubé and Cal Foote are each accused of sexually assaulting E.M. in the hotel room. Mr. McLeod faces a second charge of being a party to sexual assault.
Each has pleaded not guilty.
On Friday, Mr. Brown, who is representing Mr. Formenton, told the court that the narrative E.M. gave to police in 2018 about Jack’s was not supported by video surveillance, including her claims that the players she met at the bar were buying her drinks all night, that she had tried to “ditch” Mr. McLeod to no avail, that she fell in front of him and that at times the men were forcing her to touch their crotches on the dance floor.
E.M. acknowledged that she recounted some things incorrectly – such as the extent to which she bought herself drinks and when she fell – however she maintained that just because a memory wasn’t caught on video didn’t mean it didn’t happen.
Mr. Brown showed the jury footage of when E.M. first encountered the players, in which she can be seen dancing with one of Mr. McLeod’s former teammates, who was not charged. The defence lawyer pointed out the pair appear to be holding hands while dancing, while his head was in her neck.
He asked her if she was attracted to him.
“I‘m just dancing with someone at a bar,” E.M. said.
Mr. Brown asked E.M. if she thought Mr. McLeod was attractive. E.M. replied that he seemed attractive, but that because of her level of intoxication, she wasn’t really “registering faces.”
Said Mr. Brown: “So if it wasn’t Mr. McLeod’s looks that attracted you to him, what was it that you found so attractive that you wanted to go home with him?” (Defence counsel has previously asserted to E.M. that she was interested in the players because they were elite-level hockey players, which she has denied.)
“It was just someone who I was spending a lot of time with and we were dancing and kissing,” E.M. said. “He seemed taller, that was attractive to me.”
“So what you’re saying, I suppose is, as long as it’s a tall guy, at this point of the night, you’ll go home with him?” Mr. Brown asked.
“That‘s not at all what I said,” E.M. said.
Court has heard that E.M. consumed about eight drinks at Jack’s bar, as well as two drinks before arriving at the bar. But on Friday morning, Mr. Brown told the jury that the drinks at Jack’s are small and E.M. likely drank less than what she has described in her testimony.
Mr. Brown showed the jury a small plastic shot glass taken from Jack’s recently, which he said was the same size as the one that held the alcohol in “Jagerbomb” drinks that E.M. was consuming on the night in question. He poured water into the cup to illustrate that it holds about half an ounce of liquid.
“Perhaps you haven’t drunk as much as you thought,” Mr. Brown told her.
E.M., who is now 27, has testified that at the time of the alleged assault she weighed 120 pounds and stood 5’4”.
At the end of the day, Mr. Brown presented E.M. with screenshots of a Facebook Messenger conversation she had with a coworker around midnight that night. Court heard that E.M. had gone to the bar with this coworker. In the messages, the woman asks E.M. if she needs help getting away from the men she’s with.
“I‘m ok for now but I‘ll let you know for sure,” E.M. wrote back.
The coworker messaged the next morning to see if E.M. got home okay. E.M. replied: “Hey girll!! Ya I did thank you.” The pair made plans to go out drinking again soon.
Mr. Brown asked E.M. why – after she’s claimed to have had the “worst night of drinking” ever –she was making plans to go out drinking again. E.M. explained that this coworker was a new friend.
“I was not about to open up and tell her what happened,” E.M. said. “Something horrible just happened to me, and I‘m going to tell this kind of a stranger what just went down? I was really embarrassed. I felt so much shame.”
“Shame and embarrassment for the choices you made,” Mr. Brown said.
E.M. stopped him: “No. I‘d like to finish. I made the choice to dance with them. And drink at the bar. And not make the choice to have them do what they did.”
The trial is set to resume Monday.