Content warning: This story includes allegations of sexual assault.
LONDON, Ont. — On Wednesday, the prosecution asserted that the complainant in the trial involving five former NHL players accused of sexual assault was not the one who initiated the events in June 2018.
During the trial, E.M., whose identity is protected by a publication ban, was alleged by defense attorneys to have aggressively sought sexual activity with the players in Room 209 of the Delta Armouries hotel in London during the early hours of June 19, 2018.
Assistant Crown attorney Meaghan Cunningham argued Wednesday that the previous testimony from Taylor Raddysh and Boris Katchouk, who described E.M. as being quiet and under the covers when they arrived at the room, contradicts the defense`s claim that she asked Michael McLeod to bring his teammates there for sex.
“Someone is not telling the truth,” Cunningham stated to Justice Maria Carroccia in court.
“It goes against logic and common sense that if she were truly the instigator, wanting to engage in sexual activity with others besides Mr. McLeod, she would not interact with Raddysh and Katchouk. This makes absolutely no sense.”
She also noted that Raddysh and Katchouk, who departed before the remaining players arrived, were the only two individuals who saw E.M. that night who were not part of the group chat created on June 26, 2018, to discuss the events.
“Their account is entirely inconsistent with the testimony provided by everyone involved in the group chat,” Cunningham remarked.
Cunningham contended that the evidence indicates McLeod was the one who orchestrated the plan, citing his 2018 interview with London police Detective Stephen Newton where he admitted telling the players in the room not to use their phones to record events and to “be smart about this.”
Cunningham suggested that Justice Carroccia should view the subsequent events through the lens that the night was initiated by McLeod.
“This is how everything began,” Cunningham stated. “E.M. did not initiate this. He informed the others that she was available for their sexual pleasure. She was unaware. This casts all witness testimonies in a significantly different perspective.”
She further added that McLeod`s text message to a group of players, “Who wants to be in a 3 way quick,” implies urgency because, as she argued, “he knows she isn’t even aware she has supposedly made such an offer to his friends.”
Earlier on Wednesday morning, legal counsel for Cal Foote and Dillon Dube concluded their closing arguments.
Julianna Greenspan, Cal Foote`s lead attorney, began her submission by stating, “Cal Foote did not sexually assault E.M.”
She contended that E.M. altered her account from her initial interview with London police, later claiming that a man, subsequently identified as Foote, performed a split over her while naked on June 19, 2018.
“She didn’t mention it in 2018 because the person was not naked,” Greenspan argued. “Her explanation lacks common sense.”
Carter Hart testified that during the trial, he witnessed Foote doing the splits over E.M. while fully clothed, and that he did not touch her during this action. Hart also stated that E.M. was laughing at the time.
Video evidence presented during the trial showed Foote performing the splits on the dancefloor at Jack’s bar while fully clothed. Greenspan asserted that the same scenario occurred in Room 209.
“Evidence shows that individuals in that room said, ‘Footer, do the splits.’ … There is no evidence suggesting anyone said, ‘Oh, and remove your clothes. Take off your clothes this time when you do the splits, unlike the usual way you do them with clothes on.’”
Greenspan also raised questions about why the prosecution did not call other players who were present in Room 209 that evening as witnesses. The Crown called Raddysh, Katchouk, Brett Howden, and Tyler Steenbergen. Those not called included Drake Batherson, Jake Bean, Maxime Comtois, Sam Steel, and Robert Thomas. Police interviews with McLeod and Alex Formenton were shown, and an audio recording of Dube`s interview was played.
Concluding her argument for Dube, Lisa Carnelos stated that the Crown failed to prove beyond a reasonable doubt that E.M. did not consent, arguing that Justice Carroccia must therefore acquit all five defendants.
Closing submissions, also termed closing arguments, serve for both the defense and prosecution to summarize evidence, emphasize crucial points, and attempt to persuade, in this instance, the judge, to rule favorably for their side. It is important to note that closing submissions themselves are not considered evidence.
McLeod faces two counts of sexual assault, one of which pertains to aiding in the offense. Dube, Foote, Formenton, and Hart are each charged with one count of sexual assault. All defendants have pleaded not guilty.
The prosecution is scheduled to continue presenting its closing arguments on Thursday, followed by responses or rebuttals from the defense lawyers, potentially extending into Friday. The trial is concluding its eighth week. The verdict is set to be delivered by Justice Carroccia in court on July 24.
Tristan Blackwood