It is peculiar how the prosecution is doing so much of the heavy lifting for the defence in the trial of five former junior hockey players who鈥檝e pleaded not guilty to a fistful of sexual assault charges.
Far be it for me to question trial strategy. I don鈥檛 believe myself to be smarter than a lawyer 鈥 which was the trap door that the complainant occasionally fell into during her nine days in the witness stand.
Lawyers rarely ask questions to which they don鈥檛 already know the answer. And this trial in a London, Ont., courtroom, has been interminable, with the most picayune of details being picked over again and again. It also demonstrates how different Canadian trials are from American trials, which usually move much more swiftly through the evidence.
Even before this trial launched 鈥 a mistrial and a discharged jury ago 鈥 there were reports that the Crown had 47 names on its witness list. That doesn鈥檛 mean 47 individuals will be called upon to testify.
But Tuesday saw the fourth player who was a member of that 2018 world championship team summoned by the prosecution. None of these young men was ever charged with anything although all had been among the group that had convened at Jack鈥檚 Bar on the night of June 18, 2018, following a Hockey Canada gala where they鈥檇 received their rings. And all had, at some point, been in Room 209 of the Delta Armouries hotel where the alleged sexual assaults had occurred in the wee morning hours of June 19, witnessing some of the purported incidents.
Thus far, each of those players has essentially supported the defence position that the sex was consensual, that the complainant was a willing participant, and that she outwardly gave no indication of being distressed or unenthusiastic. None has buttressed the prosecution case.
In her own testimony, the complainant 鈥 known only as E.M., her identity protected by a standard publication ban 鈥 said she had gone willingly to the hotel with one of the defendants, Michael McLeod, expecting they would have sex, but was shocked when he then text-invited teammates. Further, she told court 鈥 there was a still a jury empaneled at the time 鈥 that her mind had separated from her body during what she described as the ordeal; that she鈥檇 even taken on a 鈥減orn star persona鈥 in order to deal with what was happening. This survival mechanism, she said, explained her behaviour 鈥 the comments she made in a video McLeod filmed on his phone, and the contents of a text exchange later with McLeod where she stated that everything had been consensual and not to worry.
Equally confounding, at least to me, is why the prosecution made an exhibit 鈥 entered last week through another player, Tyler Steenbergen 鈥 documenting a group chat among players after they learned that Hockey Canada had launched its own investigation of the event, and that they would be interviewed.
What jumps out from that group chat is how often the players insisted to one another that they鈥檇 done nothing wrong, that it was all consensual, and that E.M. had been the instigator of what transpired. None of it in my view 鈥 and I can say this now that it鈥檚 a judge-alone trial 鈥 supports the Crown鈥檚 case. They were worried, certainly. But there鈥檚 no suggestion in the texts 鈥 and at that juncture the players didn鈥檛 realize the contents would someday become public in a courtroom 鈥 they were colluding to hide anything. What was said, repeatedly: 鈥淛ust tell the truth.鈥欌
So, on Tuesday under oath it was Brett Howden 鈥 now an NHL pro with the Las Vegas Golden Knights 鈥 testifying via video link for the prosecution in the case against McLeod, Cal Foote, Dillon Dub茅, Alex Formenton and Carter Hart.
Under questioning from聽Crown attorney Meaghan Cunningham, Howden testified that he鈥檇 seen E.M. perform oral sex on McLeod and Hart and that he believed the complainant was a willing, even craving, participant. 鈥淪he was asking guys to engage in sexual intercourse with her. I wasn鈥檛 worried about her in any way. She seemed like she wanted to do stuff.鈥欌
It was he, said Howden, who鈥檇 introduced E.M. to McLeod at Jack鈥檚 Bar. He later went to McLeod鈥檚 room in response to a text McLeod had sent about food being available. Howden was hungry after several hours spent at the bar. 鈥淚 remember just hanging out, more preoccupied with trying to get food.鈥欌
He saw E.M. coming out of the bathroom.
鈥淚 remember being surprised that she was there. I didn鈥檛 know how she got there or why she was there.鈥欌
While some of his memories were vague, Howden recalled this part quite assuredly. 鈥淲hat brought my attention to her was that she was coming on with whoever was around 鈥 trying to flirt with whoever she could flirt with.
鈥淚 remember things started to escalate quickly. That鈥檚 when she started asking the guys if any of them would have sex with her. Then she started chirping guys, egging them on, because nobody was taking her up on what she was asking for, calling guys pussies for not engaging with her. She couldn鈥檛 believe nobody was taking her up on her offer.
鈥淚 just remember everybody was pretty shocked, couldn鈥檛 believe she was being this aggressive and wanted all these things. It got kind of quiet because nobody could believe what she said 鈥 It was just kind of awkward being there.鈥欌
Howden recalled Hart finally saying: 鈥淥K, fine, I鈥檒l take her up on it.鈥欌
Hart, continued Howden, was standing while E.M. got on her knees to perform oral sex.
E.M. then allegedly took Formenton into the bathroom. He鈥檇 said to the others, 鈥淪hould I be doing this?鈥欌 To which the consensus had been: 鈥淪he鈥檚 taking you into the bathroom. It鈥檚 really your call.鈥欌
鈥淣o one was telling him not to do it because she seemed excited that someone had taken her up on the offer,鈥欌 said Howden.
Cunningham raised the matter of the players鈥 group text a week later, upon discovering that Hockey Canada had initiated an internal investigation. In one of his texts, Howden had mentioned flipping the allegations back against the complainant. (鈥淣obody forced her to do anything. If anything, we should put allegations on her.鈥欌)
Explaining that text on Tuesday, Howden said: 鈥淒uring all this, I think there was some anger that was coming across because in that situation she was the one initiating everything and the one putting us in that situation.鈥欌
Court was dismissed early after Cunningham told Justice Maria Carroccia that she wanted to address what she believes are inconsistencies in his testimony, compared to statements he鈥檇 previously given to investigators. This is her听飞颈迟苍别蝉蝉.
Cunningham took the rare step of asking the judge for time to prepare an application under the Canada Evidence Act that would allow her to cross-examine聽鈥 typically the defence’s job聽鈥 her own witness over inconsistencies from previous statements and gaps in memory..
“It’s the Crown’s position that this is not the kind of memory loss that would bring itself within past recollection.’’
Howden was to continue his testimony Wednesday.
