The Crown prosecuting five former junior hockey players accused of sexually assaulting a woman took aim at defence criticisms of her
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The “myth of the ideal victim,” the Crown says, is at the heart of the Team Canada 2018 world junior hockey sexual assault trial.
And so is “why some people feel that victims aren’t treated fairly in the criminal justice system,” said Crown attorney Meaghan Cunningham during her closing argument at the high-profile Superior Court trial.
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“She can’t win,” Cunningham said.
“She’s either too emotional – she’s combative. If she’s not emotional enough, she’s rehearsed. If she refuses to agree with suggestions, she’s combative and difficult. But if she does agree, she doesn’t know her own mind. If she uses the same language at multiple points, it’s contrived, but if she uses different language, she’s inconsistent.”
Cunningham said this strategy by the defence “finds its roots … in this myth of the ideal victim, that there is a right way for someone to look or sound when they’re describing sexual assault, that there’s a correct way or a good way for a real victim to testify.”
She argued the complainant, whose identity is protected by a court order, has been consistent in her answers and urged Superior Court Justice Maria Carroccia to find the woman forthright and truthful.
The five players – Michael McLeod, 27, Carter Hart, 26, Dillon Dube, 26, Cal Foote, 26, and Alex Formenton, 25 – all members of the 2018 championship team who went on to professional careers, have pleaded not guilty to sexual assault . McLeod also has pleaded not guilty to a second sexual assault count for being a party to an offence.
They were charged in early 2023 after London police reopened its investigation into what occurred in Room 209 of the Delta Armouries hotel in London on June 19, 2018, during a Hockey Canada gala and golf tournament.
The woman, then 20, met McLeod at Jack’s bar on Richmond Row and returned to the hotel with him for consensual sex. She testified she was drunk and was shocked, after the sexual encounter with McLeod, when several teammates assembled in his room, where she says she was sexually abused and assaulted without her consent.
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She said she was drunk and had a trauma response that caused her to separate her mind from her body to cope with the sexual demands of the players.
The defence contends the woman was the aggressor who begged and taunted them for sexual activity. Some players took advantage of her offers.
Cunningham countered that the woman gave credible evidence of being shocked to find other men in the room when she came out of the bathroom naked after sex with McLeod.
She was frightened and confused, Cunningham said, and didn’t know what to expect next.
Carroccia should not conclude that because the woman walked into the room naked and sat on the bed, it is an indicator she wanted to have sex with the men or that she felt comfortable, she said.
Instead, because she was scared, she “plays the role that she thinks is expected of her which, at this point in time, is being a good sport, (taking) the lighthearted approach in their presence,” Cunningham said.
“But the events snowball from there,” the Crown said. “More and more men keep arriving. She finds herself in over her head because the men are being aggressive. They’re telling her what they wanted her to do.”
The men were “goading each other into doing things,” Cunningham said. “They’re making her feel like an object. She is intimidated by their presence, so she goes along with what she thinks is expected.”
That’s when the woman described a “weird feeling of my mind kind of separating from my body … I didn’t feel I had any control. I didn’t feel I had a choice.”
The Crown had planned to call an expert witness to explain normal reactions to traumatic events like sexual assault, including disassociation, Cunningham said, but recent appeal court rulings dismissed the need for that expertise.
Still, Cunningham argued, the woman’s testimony made clear that she didn’t feel in control or she was thinking clearly. “She’s explaining very eloquently, that she was experiencing a trauma response. There’s nothing implausible about this.”
The woman testified for nine days. Throughout a blitz of cross-examination by the defence, Cunningham said the woman “remained calm, careful and fair. She certainly did not leave the impression she was just making things up.”
“It is clear, listening to her testify, that she was trying to be accurate and precise when she could be, within the limitations of her memory,” Cunningham said.
But Carroccia noted there were times when she had to tell the woman to answer questions directly instead of going on other tangents.
“There’s nothing wrong with a complainant wanting to stand up for themselves. The question is whether that impacts or colours the way they give their evidence,” the judge said.
Cunningham said most times, the woman would answer questions and then give an explanation for her answer. “If (the woman) had any agenda while testifying, it was to ensure that she was not misunderstood. It was to ensure that she had the opportunity to fully explain her experience.”
And, the Crown argued, it is natural her understanding about what happened evolved as she processed it. In June 2018, during her first interviews with London police, “she was still very much grappling with what had happened to her, what she wanted to do about it, (and) how she felt about it,” Cunningham said.
But she had no motive to lie about what happened in the hotel room, Cunningham said. Even though now-retired Det. Stephen Newton was concerned she was under pressure from her mother, there isn’t any evidence she was, the Crown said.
“The fact that she changed her mind five times about proceeding is not evidence of pressure. It isn’t evidence especially that she felt swept along with something outside of her control,” Cunningham said, adding that it shows she “was in the driver’s seat,” and still was when the investigation was reopened in 2022.
Her first police statement in 2018 “was measured” and never said she was forcibly restrained or threatened.
The defence has argued she “re-scripted her narrative” after police closed the case and changed her account when filing a civil suit.
But Cunningham argued there was no fundamental shift. “She did not specifically say she was afraid during the first interview with the detective… she also explained that she was still processing everything that had happened.”
Also, the Crown said, the existence of the $3.55-million civil suit that was quickly settled by Hockey Canada in May 2022 is not relevant to the criminal case. The woman could have chosen not to participate in the criminal investigation.
“There is no connection between the money and her participation in this trial,” Cunningham said.
The Crown turned its argument back to what’s been described about what happened that night in the hotel room, both by player witnesses who were there and in a group text once Hockey Canada began asking questions in 2018. Cunningham specifically noted texts where the men said the woman was “begging” them to have sex with her.
Cunningham suggested, based on all the evidence, that was “a gross exaggeration of what actually happened and it really makes no sense.”
Even if the judge believes the woman said, “Isn’t anyone going to (have sex) with me?” as some players testified, Cunningham said, “It is not evidence, subjectively, she was voluntarily agreeing to any sexual activity – and it’s not a reason to disbelieve her evidence of her subjective mental state.”
Cunningham outlined the legal test for consent: “If someone in their own mind isn’t making a voluntary choice, there is no consent. And it’s not just making a voluntary choice, they have to be making a voluntary choice to engage in a particular sex act with a particular person.”
While the men in the room say the woman consented, “no one but (she) can actually provide direct testimony about whether she was consenting. It’s a subjective state of mind.”
Cunningham said the woman was fearful as soon as she emerged from the bathroom and that escalated as events unfolded. She coped by being light-hearted and not refusing some of the suggestions in a bid to not provoke an angry response.
“This is what I would describe as a harm reduction step that can’t be equated with a sign of affirmative consent,” she said.
“It doesn’t matter whether her fear was reasonable – only that it was sincere,” Cunningham said. If the judge finds the woman “didn’t want the sexual touching to take place but participated out of honestly held fear,” then she didn’t consent, Cunningham said.
The Crown will continue its closing argument on Friday.
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