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Jury hears first evidence in London hockey trial

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Content advisory: This article includes allegations of sexual assault.

London, Ont. – A jury deciding the fate of five former members of Canada’s 2018 world junior hockey team charged with sexual assault watched a series of surveillance videos Monday that show E.M., the complainant in the case, arriving at a London bar around 11 p.m. on June 18, 2018, moving between an ATM, a bar where she appears to order drinks, and then a crowded dance floor.

The videos were part of the first testimony heard by the jury of nine women and five men in Ontario Superior Court in London in the case against Michael McLeod, Carter Hart, Alex Formenton, Dillon Dube, and Callan Foote.

The players are charged with sexually assaulting a woman who is identified in court documents as E.M. in June 2018 at a London hotel following a Hockey Canada golf and gala event. McLeod faces a second sexual assault charge as a party to the offence.

The players have all pleaded not guilty. If they are convicted, they face as many as 10 years in prison.

The videos, which do not have sound, also show members of the world junior team arriving at Jack’s Bar at about the same time as E.M. The players, many of whom wear T-shirts and backward baseball hats, have their I.D.’s checked before walking into the establishment.

London police officer Tiffany Waque testified that the series of videos and photos were obtained by police in connection with their investigation into the incident. The photos included an image of current Ottawa Senators player Drake Batherson wearing his 2018 world junior championship ring, and a drawing of the layout of Jack’s Bar.

Court finished on Monday afternoon at around 1 p.m. Justice Maria Carroccia told the jury she was ending early so jurors could vote in the federal election. Waque is scheduled to continue her testimony on Tuesday morning.

In the government’s opening statement earlier on Monday, assistant Crown attorney Heather Donkers described an hours-long alleged sexual assault that began early in the morning of June 19, 2018, with a text message sent by McLeod to his Team Canada teammates asking if anyone was interested in participating in a “3 way.”

Donkers told the jury on Monday that the case against the five players, “is about consent. And equally important, it is about what is not consent.”

“This case is about whether [E.M.] voluntarily agreed to engage in each and every instance of sexual act that took place, at the time that they took place,” Donkers said. “At the end of this trial, we will ask you to find each of the five defendants guilty of sexual assault because they touched [E.M.] without her voluntary agreement to each sexual act when it took place.”

The five players sat in a courtroom that was packed with the players' families and friends, members of the media, and the public, and listened expressionless as Donkers addressed the jury.

Donkers told the jury that on June 18, 2018, E.M., who was then 20, went out to Jack’s Bar in London with a group of friends and consumed about eight alcoholic drinks over the course of the evening. While she was at the bar, McLeod and Dube were among the hockey players who surrounded E.M. on the dance floor, Donkers said.

Shortly after 1:20 a.m., McLeod and E.M. left the bar together and went to McLeod’s room – Room 209 – at the Delta Armouries Hotel in London where the hockey players were staying. Donkers said E.M. and McLeod engaged in consensual sex.

“Soon after that sexual act ended, the atmosphere in the room changed,” Donkers said. “[E.M.] will testify that she observed Mr. McLeod on his phone and she believed he was messaging people, but she did not know who or what he was messaging.”

Donkers said the jury would see copies of those text messages, “which include messages Mr. McLeod sent to his teammates in a group chat asking ‘who wants to be in a 3 way quick. 209- mikey.’”

“You will also hear that Mr. McLeod went into the hallway and invited people into his room, where [E.M.] still lay, naked, under the covers of the bed,” Donkers said. “Before long, more and more men began arriving in room 209. There were up to 10 men inside this standard-sized hotel room at different points in the night.”

Donkers said E.M. will testify that she felt drunk, surprised by what was happening, and uncertain how to react.

“You will hear from some witnesses that, at different times in the night, [E.M.] was offering to perform sexual acts or was asking whether anyone was going to have sex with her,” Donkers said. “And you will hear from [E.M.] that throughout the night, she was going along with what the men in the room wanted — what she felt that they expected of her — because she was drunk, uncomfortable, and she did not know what would happen if she did anything else.

“It is anticipated that you are going to hear from [E.M.], and others in the room, that in this context, each of the five accused in this case had sexual contact with [E.M.] without her voluntary agreement to the specific acts that took place.”

Donkers said that McLeod, Hart and Dube obtained oral sex from [E.M.], that without her consent, Dube slapped [E.M.] on her naked buttocks while she was engaged in a sexual act with someone else, that, without her consent, Formenton had vaginal sex with [E.M.] in the bathroom, and that without her consent, Foote “did the splits over [E.M.]’s face while she lay on the ground, grazing his genitals over her face.”

“We anticipate you will hear evidence that at the end of the night, Mr. McLeod sexually assaulted [E.M.] once more by vaginally penetrating her without her consent,” Donkers said.

“…The Crown anticipates that you will not hear from [E.M.] that she said “no” to the specific sexual acts that constitute a sexual assault, nor that she was physically resisting at those times. But we anticipate you will hear [E.M.] testify that when she was in this hotel room, at age 20, intoxicated, and a group of large men that she did not know were speaking to each other as if she were not there, and then they started telling her to do certain things, she did not feel that she had a choice in the matter. On occasion, she tried to leave the room, but the men coaxed her into staying. And so, she found herself going through the motions, just trying to get through the night by doing and saying what she believed that they wanted.”

Donkers explained why McLeod faces the second sexual assault charge as a party to the offence.

“This count relates to the anticipated evidence that throughout the night, Mr. McLeod assisted and encouraged his teammates to engage sexually with [E.M.], knowing she had not consented,” Donkers told the jury.

Donkers said jury members would hear testimony about two brief videos that were taken by McLeod of [E.M.] towards the end of the night, in which [E.M.] made statements including “it was all consensual.”

“Please listen carefully when [E.M.] testifies about what was happening before and during the recording of these videos,” Donkers said. “Pay close attention not only to what was said in these videos, but also what was not said... At the end of the trial the Crown expects to argue that these videos are not evidence of consent to any of the specific acts that the charges relate to.”

Donkers said there would also be testimony about what happened following the evening at the Delta.

“We expect you will hear and see evidence of [E.M.] leaving the Delta hotel in tears and calling a friend in that heightened emotional state, before she took an Uber home and cried in the shower,” Donkers said. “We anticipate you will hear evidence about police being contacted, and then about text messages sent by Mr. McLeod to [E.M.], including a message in which he said: ‘What can you do to make this go away?’”

Donkers said that there would also be evidence about a group chat between some of the members of the team, including all five of the defendants, a few days later, in which there were discussions about what happened at the hotel, and about “making sure they all said the same thing to investigators.”

“We expect you will hear evidence about individual phone calls made by Dillon Dube and Callan Foote asking some of their teammates to leave out what they had each done to [E.M.] when describing what had taken place in the hotel room,” Donkers said.

After Donkers finished her opening statement, she read the jury an agreed statement of fact – a statement that neither side contested.

Donkers told the jury that London police were given five videos in 2022 from the cell phone of Batherson. Donkers also said McLeod provided police with two videos in 2019 that were filmed in his hotel room on June 19. One of the videos was filmed at 3:25 a.m., and the other was filmed at 4:26 a.m.  

Police were also provided with one continuous Snapchat video in three segments from McLeod’s phone, Donkers told the jury.

After Donkers read the agreed statement of fact, Waque began her testimony.