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When allegations of sexual assault against members of Canada’s 2018 world junior hockey team were first investigated, player Michael McLeod volunteered to make a statement to London police.
It’s what he didn’t say to now-retired Det. Stephen Newton on Nov. 17, 2018, that the Crown says should concern Superior Court Justice Maria Carroccia at the high-profile trial of five men who were teammates on the world championship team.
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His omission, Crown attorney Meaghan Cunningham said, contradicts the heart of the defence argument that all the sex at the Delta Armouries hotel room on June 19, 2018, was the complainant’s idea.
“Mr. McLeod does not say that this was (the woman’s) idea. He does not say that she asked him to invite his teammates into the room for group sexual activity,” Cunningham said Wednesday as she began her closing argument, pointing to McLeod as the one who “set (the woman) up.”
“If this was something that had happened, I submit you can be confident he would have said that during this interview. There is no logical or plausible reason why he wouldn’t, if it was a true fact.”
Cunningham argued that the 27-year-old woman, whose identity is protected by a court order, “did not voluntarily agree to the charged sexual acts that took place in the room that night.
“The woman did not make an affirmative, voluntary choice to engage in sexual activity,” Cunningham said.
McLeod, 27, Alex Formenton, 25, Carter Hart, 26, Dillon Dube, 26, and Cal Foote, 26 – all members of the 2018 championship team who went on to professional careers – have pleaded not guilty to sexual assault. McLeod has also pleaded not guilty to a second sexual assault count for being a party to an offence.
The allegations stem from a boozy night in London while the team was in town for a Hockey Canada gala and golf tournament on June 18 and 19, 2018. The judge has heard that some of the team ended up at Jack’s bar on Richmond Row to drink and dance, and that’s where McLeod met the woman, who was 20 years old, and took her back to the Delta Armouries hotel for consensual sex.
It’s what happened in the hotel room that forms the basis of the charges. The woman claims that several members of the team – as many as 10 – came to Room 209 at McLeod’s invitation without her knowledge, and that she was sexually abused while naked on a bedsheet.
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She testified over several days and insisted she was extremely drunk when she went back to the hotel, and had disassociated her mind from her body to cope with what she described as a harrowing early morning with the men.
The defence and even two players who were called as Crown witnesses say the woman was the sexual aggressor, who masturbated in front of them, then begged and taunted them to have sex with her. The players with girlfriends refused, but there were some who took her up on her offer, all of which they say was consensual sex.
The trial began in late April. Julianna Greenspan, Hart’s defence lawyer, made the final of the five defence arguments Wednesday morning.
Cunningham is expected to continue her argument Thursday, but began Wednesday afternoon urging Carroccia to accept that the evidence shows McLeod “brought his teammates into the room for sexual activity with (the woman) without any belief that she was interested in that, and knowing, in fact, that she had not asked for that.”
Understanding that core fact, she said, will help the judge assess what happened that night and the evidence of the woman, which the defence has strenuously argued is not credible or reliable.
Cunningham pointed to a text exchange McLeod had with the woman on June 20, 2018, after he was told that police and Hockey Canada had been alerted to the activities in his hotel room. The court has heard that McLeod tracked the woman down through Instagram and arranged to text her.
McLeod asked her if she had gone to police. The woman replied that her mother had. McLeod wrote back, “You were having fun.”
The woman responded: “I was OK going home with you. It was everyone else afterwards that I wasn’t expecting. I just felt like I was being made fun of and taken advantage of.”
McLeod wrote back, “I understand that you are embarrassed about what happened,“ and then urged the woman to straighten things out with her mother and police because the mother “is misrepresenting” what happened.
Cunningham said McLeod didn’t express surprise or shock – or say, “What are you talking about? You asked me to invite them in.”
Carroccia interjected that McLeod did say it was “a serious matter” that was being misrepresented. Cunningham said she didn’t see that as a response but “an adoption by silence” of the woman’s claim that she “wasn’t expecting” the other men and was “really drunk.”
While the defence argued that the woman was the instigator, Cunningham said that there was no evidence – only suggestions during cross-examination. She pointed to the group text McLeod sent out to the team inviting them to “a 3-way, quick,” and how he pulled both Crown witnesses Boris Katchouk and Taylor Raddysh into the room and asked if they wanted oral sex.
Both Katchouk and Raddysh testified to seeing the woman in bed with the covers up to her neck. The only comment made by the woman, the court heard, was to Katchouk, who was briefly alone in the room with her and holding a piece of pizza. He testified she asked if she could have a bite.
Katchouk agreed that she was being “flirty” but Cunningham asked: “How do you ask for a bite of pizza flirtatiously?”
After the two men left, Cunningham said the woman went into the bathroom and was “shocked” to see more men in the room when she came out naked. “This is the moment . . . where she first begins to perceive that she is in a dangerous situation – a situation without a viable or safe means of escape,” and when the woman essentially went on “autopilot”, disassociating her mind from her body, Cunningham said.
She noted that the woman was steadfast during cross-examination in saying she didn’t think she would have stated or demanded that the players in the room have sex with her. And the evidence from Katchouk and Raddysh was that she did not offer them sex. So, logically, Cunningham argued, it doesn’t make sense she would offer sex to others after they left.
She said McLeod recruited the men to come to the room and some showed up looking for sex “even before they laid eyes on her, even without knowing her name.”
Earlier in the day, Greenspan called the 2022 revival of the Hockey Canada and London police investigations of the 2018 allegations “Tunnel Vision 101” because they both relied on a new narrative that anchored the woman’s $3.55-million civil action against Hockey Canada, the Canadian Hockey League and eight unnamed players from the team.
Hockey Canada quickly settled the lawsuit without the players’ knowledge and then “went on a bit of a rampage,” Greenspan said, to corroborate the woman’s allegations.
The same urgency came over London police in 2022 when it reopened its investigation that had been closed in 2019 because there weren’t grounds to lay charges.
“The police, just like the complainant and just like Hockey Canada, were focused on (the woman’s) truth, not the truth,” said Greenspan.
Hockey Canada’s investigation, she said, was “premised on coercion” with warnings to former players that if they didn’t cooperate, “they could be named and shamed.”
London police, she added, chose not to do further interviews with the complainant to limit the number of times she had to “relive the traumatic experience.”
The trial, Greenspan said, has been conducted while “the public and the press have been actively engaged at quite a high and, quite frankly, suffocating level,” pointing specifically to courthouse demonstrations she described as “active efforts to bully and intimidate.
“The most upsetting part of all of this is a glaring reality – that the concepts of the presumption of innocence and holding the state to this burden of proof beyond a reasonable doubt have been, outside these walls of justice, forgotten,” she said.
Foote, Greenspan added, was fully clothed and did not touch the woman when he did the splits – his party trick – over her torso at his teammates’ request, and there was no evidence he saw McLeod’s text or went to the room looking for sex.
The evidence was that everyone, including the woman, was smiling and laughing, Greenspan said.
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