Players tried to get 'narrative' straight in group texts, Crown tells Hockey Canada sex assault trial

WARNING: This post contains graphic details.

Even if E.M. made comments to the effect of, “‘Someone come f–ck me,’” that doesn’t mean she provided “valid consent” for the specific acts that the men are charged with.

E.M. masturbating on the bed sheet doesn’t communicate consent, Cunningham says.

“Masturbating, like flirting, communicates nothing,” she says.

E.M. testified the men put a bed sheet on the floor of the hotel room and asked her to get on it and put on a masturbation show for them, which she did, as a way to give them what they wanted.

“You cannot infer that because someone is masturbating, they want to perform oral sex or they're willing to have a penis in their vagina,” Cunningham says. “You cannot treat that as a communication of consent to any other sexual act. You just can't. The law does not permit it.”

The Crown is now explaining the legal concept of consent.

Cunningham says:

• Consent is an affirmative concept. It’s not “yes means yes until someone says no.” It’s, “No, until someone decides yes.”
• If someone in their own mind isn’t making a choice, there is no consent.
• Consent is a voluntary choice in a particular act with a particular person.
• “You heard from six men who were in the room. They all said she was consenting. No one but E.M. can say if she was consenting. It is only what is in her own mind that matters.”
• Consent is not a “one and done box check at the beginning of an encounter.”
• Consent can’t be given in advance. Has to be contemporaneous (at the same time) with the touching.
• It’s a voluntary agreement of the complainant to engage in a particular sexual activity.
• There is no such thing in law as consenting to sexual activity. You can only consent to specific acts.
• “E.M. might have said, ‘Someone do something to me.’ That is not a valid consent in law to anything. It doesn’t involve a particular act with a particular person.”

McLeod told police he took the “consent video” after E.M. got upset. He calmed her down and recorded the video, and then the oral sex happened, Cunningham says.

Cunningham attempts to play the video in court but there’s a delay, so she reads out what McLeod said off the top of the video: “‘You’re OK with this though, right?’”

The fact he says “though” is quite telling, Cunningham says. If E.M. had been begging for sex, he wouldn’t have said the word “though.”

Cunningham also points to the text McLeod sent to E.M. on June 20, 2018, in which he told E.M., “You said you were having fun??” Cunningham says it appears McLeod is trying to use the videos he took as proof to E.M. that she consented.

If she had been begging for it all night, he would have put that in the text to her, Cunningham says.

The men say they were uncomfortable with E.M.’s alleged sexual aggression and most of them didn’t want to do anything sexual with E.M. because they had girlfriends, Cunningham reminds the judge. But they didn’t allow her to leave the hotel room, she adds.

“If no one wants to do stuff with her, why not just let her leave” when she puts her clothes on, Cunningham argues.

Instead of doing nothing and letting her leave, they convince her to stay (according to testimony from E.M., and statements by Hart, Howden and McLeod), the Crown adds.

“The totality of the evidence paints a really clear picture that she is upset, she’s trying to leave, and they are taking steps to keep her in the room.”

“The only reasonable inference is that they are doing that because they want her to stay. They are the ones who want the sexual activity in the room to continue. There’s no other reasonable inference.”

Howden said to police in 2018 that he heard E.M. “weeping,” Cunningham reminds the judge.

Cunningham says there are parts of the group chat that prove E.M. was not the sexual aggressor or “begging for sex” that night.

Howden texted “she’s the one who got naked and started begging everyone,” and McLeod replied, “Yeah what should I say if they ask why I took the videos tho.”

Cunningham says in court today that McLeod asks that because he realizes the narrative that she was begging for sex doesn’t align with him taking a video asking her if she’s OK.

“If you're saying she’s giving such enthusiastic consent that they were literally begging for it,” why would you have to take a video to prove it, Cunningham puts to the judge.

McLeod told London police in 2018 that he was concerned the woman would later say she wasn’t consenting to what happened in Room 209.

“If she was demanding sex, begging for sex repeatedly, wouldn’t it make sense to capture that on video, or even audio? If he was truly interested in capturing her enthusiastic consent on video, they had plenty of opportunity because [the men] say she was saying stuff like that all night,” Cunningham says.

There’s a back-and-forth between the judge and Crown about whether there was other food in the room.

Formenton said he saw empty chicken wing boxes, but McLeod didn’t pick up the food until after Formenton’s arrival, Cunningham says.

It’s possible those were there before, Carroccia tells Cunningham.

They go back and forth about that for a while, then the Crown says, “I’m getting the sense that this is not a persuasive argument. I’m going to take a break.”

Carroccia nods, and the court takes a break.

Carrcoccia has been asking Cunningham a lot of questions about her closing submissions, interjecting and asking for clarification, case law, and sometimes telling Cunningham she’s putting forward evidence that isn’t allowed.

Cunningham says it’s also important to remember Dubé said he got a text from Jake Bean telling him there was food in the room, and that’s why he went there. He also told investigators he didn’t check his phone, so didn’t see the text from McLeod inviting the team for a threesome.

The Crown says there was no text from Bean.

Cunningham puts up a photo of Dubé entering the hotel lobby, with his shirt off, on his phone at 3:13 a.m.

“It’s reasonable to infer that he said that to explain why he’s shocked to find a naked woman in (Room) 209,” she says. “It doesn’t add up. It’s all designed to give him plausible deniability that he saw that text from Mr. McLeod. It’s reasonable to infer that he was going to 209 because he knew that sex was on offer.”

Dubé is smiling at the defence table while the shirtless picture from the hotel lobby is up on the screen. He then pinches the top of his nose and puts his head down.

The men told police in 2018 that it was food, not texts from McLeod about a threesome, that brought other players on the hockey team to Room 209 that night, Cunningham reminds the judge.

“Your Honour can conclude that going to McLeod’s room for food is a false idea planted into the group chat, which makes its way into the accounts of all these men, either intentionally or not.”

McLeod “flat out lied” to the detective in 2018 that the men were going to his room because he ordered some food, Cunningham argues.

McLeod did order some food and told the detective it arrived at 2:10 a.m., but it actually arrived at 2:57 a.m., Cunningham points out. He told the detective he waited in the lobby for food, but the video shows it was the delivery person who was waiting for McLeod.

The bag of food McLeod picked up was “small” and “not an order that you would make to share with even two other people,” let alone a big group, Cunningham says, showing a still shot from the lobby surveillance video.

The food was in a white plastic disposable bag like one a lot of food deliveries come in, she says.

But it’s Jake Bean who “takes the first stab” at telling the men what the narrative should be, Cunningham says of the group chat.

He texts, “No boys, like we don’t need to make anything up. No one did anything wrong. We went to the room to eat. This girl came. She wanted to have sex with all of us. No one did. She gave a few guys head, and then we got out of the room when things got too crazy.”

Cunningham puts the text up on the screen for the judge. The lawyer says there are many lies in that text, including that Bean doesn’t know “no one did anything wrong,” because he left early, he knows it’s false that they all went to the room to eat, and that the woman was already there and she didn’t come after the fact.

The narrative evolves with a text from Howden, which includes that“the girl started begging everyone to have sex with her.” That’s the first time someone mentions the woman begging.

“The group chat shows that the participants were all exposed to a discussion of a developing narrative,” Cunningham says, calling it a “group work project” to try to figure out what the story should be.

The defence has said the group chat between players on June 26, 2018, shows a group of young men who were scared and worried about a Hockey Canada investigation and possible police investigation.

The Crown says it’s important to consider who was in the group chat. Raddysh and Katchouk are not; Dubé only included people in the group chat that were in the room that night when sexual acts happened, Cunningham says.

The group chat “specifically and deliberately includes only the people who have to get their stories straight,” she says.

When McLeod texts, “We all need to say the same thing if we get interviewed. Can’t have different stories or make anything up,” he is laying out for the men that their stories have to match and he’s “padding the record” in case anyone sees the group chat in the future, Cunningham says.