E.M.'s testimony was 'deliberately slippery' to advance agenda, defence argues at Hockey Canada trial

Brown says that when E.M.’s mom found her crying in the shower, E.M. realized she needed to tell a story about people doing “bad things” to her, rather than “take responsibility for the bad choices she made.”

Brown argues E.M. wanted to save her relationship with her boyfriend, and knew the men were hockey players and if the story came out, there would be public shaming.

“She created a lie and the lie was that she didn’t make the choice willingly to leave the bar and go to the hotel with Mr. McLeod. If the choice wasn’t hers, if it was someone else’s fault, if she was sexually assaulted, she could be absolved of her conduct.”

However, Brown says, E.M. didn’t know there were videos that didn’t match her story.

When the police detective (now-retired London police sergeant Stephen Newton) tells her that he can’t lay charges because the hotel video shows her not too drunk to consent, “her quest for justice is just starting. She wants money. She wants a lot of money. She wants $3.5 million. She doubles down.”

(Hockey Canada eventually settled the civil lawsuit brought by E.M., without telling the players involved, for an undisclosed amount of money).

Brown argues that E.M. shifted her narrative in her Hockey Canada statement, to include that she was drunk and the players knew it, and they were forcing drinks down her throat.

He says her whole story is a lie.

Brown puts to the judge that sometimes, consensual sex is regrettable later, especially when there’s a lot of alcohol involved.

But the sexual activity that happened on the night in question in June 2018 — even if it was unusual, unenjoyable or regrettable — was not non-consensual.

“We have lots of evidence that she was consenting and only her version that she wasn’t,” Brown says.

He says there are four “states of mind” described by E.M., and he will go through each:

• She was too drunk to consent.
• Her mind and body separated and she was on autopilot, an automaton.
• Through fear and terror, she did things she didn’t want to do.
• She is a people pleaser who was socially pressured to have sexual activity she didn’t want.

Brown contends a fifth mental state — “EM was enthusiastically consenting to what was happening in Room 209” — is the one that’s true.

E.M. was not a reliable witness, Brown says.

He lists what E.M. testified to, but then says videos prove these otherwise: that the players got her drunk, she was so drunk she was out of it, she was separated from her friends by the players, she had no opportunity to escape from McLeod at the bar, and no one checked in on her during that night.

“None of the witnesses corroborate the oppressive atmosphere that E.M. says existed in the room,” Brown says.

“Consent to sex with a stranger is still consent. Consent while drunk is still consent. Consent to sex by one woman with more than one man is still consent.”

The third defence lawyer to deliver closing arguments is Dan Brown, lawyer for Formenton, who court has heard had sex with E.M. in the bathroom.

He argues what happened between E.M. and his client isn’t “complicated.”

“She repeatedly asked for someone to have sex with her and Mr. Formenton agreed to do so,” Brown says. “He did this because she wanted to have sexual intercourse and he wanted to have sex. They both agreed.”

Savard says E.M.’s testimony evolved from feelings to facts.

“She feels an event is non-consensual, but then testifies to an internal state of mind that is more consistent with regret than consent. She feels she is on autopilot, then testifies to facts that show conscious choice and agency,” Savard says.

Hart’s lawyer gives an example of testimony about the size of drinks at Jack’s bar.

E.M. testified she feels the drinks there are no different than other drinks, Savard points out.

“She testified, ‘I’ve never thought they had smaller drinks than anywhere else. That’s my fact.’”

There’s no difference between “a fact” and “the facts” for E.M., Savard contends, and it’s evident throughout her testimony.

E.M. has “revisionist tendencies,” and changes her story over the last seven years to “pivot when she’s confronted with new hurdles and new bad facts. And it takes one to know one. That is a job we commonly do as lawyers. But it is not something a witness should be doing.”

Savard has now wrapped up her closing arguments.

Megan Savard says she has about 10 more minutes of closing arguments.

She says she wants to answer a question that Justice Maria Carroccia asked McLeod’s lawyer, David Humphrey, yesterday, about whether or not it is normal for a person to come to court with a goal or agenda in mind.

“Generally, not this much of an agenda,” Savard says. “There’s a difference between hoping for an outcome but nonetheless trying to be careful, objective and a non-advocate, so to speak, versus actively trying to advance an agenda, and it is the latter that we are dealing with here, and that is a credibility problem.”

The way E.M. testified obscures what she did, how she felt, what others did, and how and why she changed her account, Savard tells Carroccia.

“The goal is to obscure because this witness knows that the truth will not serve her agenda, which is to see her not in consent,” Savard says.

Savard calls E.M. “deliberately slippery” in how she gave her testimony, and gives some examples from E.M.’s testimony.

Good morning. I’m a reporter based in London, Ont., and I’ve been covering this trial since the outset, starting in late April.

Yesterday, we heard from David Humphrey, lawyer for Michael McLeod (the only one of the five men who faces two charges – one of sexual assault, the other for being a party to the offence, for allegedly inviting his teammates into his hotel room for sex acts with E.M. without her knowledge or consent. McLeod has pleaded not guilty to both counts).

We also heard yesterday from Megan Savard, lawyer for Carter Hart, the only one of the five who testified at the trial. She has a bit more to say today.

Three more legal teams have to deliver their closing arguments. They represent Alex Formenton, Dillon Dubé and Cal Foote.

(I always list the men in the same order each is listed on the indictment, and in the order in which each man sits in the courtroom, from front to back. That’s also the order the lawyers deliver their closing and opening statements).

After the defence teams are done, the Crown will deliver closing arguments.

This is the eighth and final week set aside for the trial. After all the closings are over, the case will be with the judge, who we expect will set a date to deliver her verdict and reasons for her decision.

The five men on trial have all pleaded not guilty to one count each of sexual assault; Michael McLeod is the only one facing a second charge, and has pleaded not guilty to being a party to the offence.

We’ve had some queries about the potential penalties for any convictions. (Whether anyone is found guilty is up to Justice Maria Carroccia alone).

We put the question of possible sentences to a couple of legal experts who aren’t involved in this trial.

They say sentencing is a highly individualized process.

The sentences could range, depending on the circumstances of the offence and the offender.

For sexual assault, everything is available, from an absolute discharge all the way up to federal prison time, says Sarah Leamon, a criminal defence lawyer watching the trial from Vancouver.

For sexual assaults involving penetration, the typical starting point is two years less a day in jail, she adds.

In McLeod’s case, he could only be found guilty of the second charge of being a party to the offence if someone else is found guilty of sexual assault ‒ and then, the sentence (for being convicted of being a party to the offence) could start at six to 12 months in prison, says Nick Cake, a former Crown who’s now a criminal defence lawyer in London.

In the world juniors case case, if anyone is convicted of sexual assault, Cake says, the Crown will likely seek a penitentary sentence of two years or more, while a conviction involving oral sex would be at least two years.

There is no minimum sentence for sexual assault convictions in this case because E.M. was not a minor at the time of the alleged offence. The maximum penalty would be 14 years in prison.

All the offences (which fall under the Criminal Code) qualify for anything from a discharge to custody, including a conditional sentence order (house arrest), Cake says.

I’m a producer based in Toronto and I’ll be curating our live page today.

Our team of reporters is back at the London courthouse to cover the latest developments from the trial.

To get caught up on yesterday’s proceedings, click here. You can also find all of our online trial coverage here any time.

We’re expecting court to get underway around 10 a.m. ET.