What woman hasn鈥檛 fibbed about her weight? What woman hasn鈥檛 shaved off a few pounds? And what woman wants to be asked about it under oath?聽
It was but a small detail on the sixth day of cross-examination for E.M., the complainant in a fistful of sexual assault charges against five former junior hockey players. But let no pebble of inconsistency go unturned by the defence.聽
E.M. 鈥 her name protected by a standard publication ban 鈥 admitted that she weighed 138 pounds at the time she met members of the 2018 world championship team at Jack鈥檚 Bar in London, Ont., afterwards accompanying one of them to his hotel room. Where, the jury has heard over and over again, she engaged in consensual intercourse with that young man, Mike McLeod. But she was shocked when up to 10 players then filed through Room 209, allegedly at McLeod鈥檚 invitation by text, and she was pressured into servicing five of them sexually.聽
McLeod and his co-accused 鈥 Alex Formenton, Cal Foote, Dillon Dub茅, Carter Hart 鈥 have each pleaded not guilty. The issue revolves around the matter of consent. The defendants will claim E.M. was a willing participant in everything that unfolded in the early morning hours of June 19, 2018. E.M. has told court that she consented only to the initial intercourse with McLeod; the rest was a kind of unstated coercion as her mind separated from her body. But she鈥檚 also agreed that she never expressly said no, never tried to leave, and at no time was prevented from leaving.聽
Monday in the London courthouse began with Dan Brown, counsel for Formenton, grilling E.M. about her weight, and correlating it the-then 20-year-old鈥檚 state of inebriation, which she鈥檚 testified was extreme after imbibing at least eight drinks 鈥 though Brown has shown that many shots contained only half an ounce of alcohol and buck-a-beer was just one-third of a pint glass.聽
鈥淵ou wanted to give the impression you had more alcohol than you did,鈥 said Brown, which the witness denied.
鈥淚 felt kind of like I was numb and on autopilot and going through the motions,鈥澛爐he woman testified,聽鈥渨atching it all happen and not feeling like
鈥淚 felt kind of like I was numb and on autopilot and going through the motions,鈥澛爐he woman testified,聽鈥渨atching it all happen and not feeling like
Medical records from when E.M. went to the hospital a few days later indicated she weighed 138 pounds, yet she told a detective in her first interview that she weighed 120 pounds. 鈥淢aybe I was hopeful I was still 120 pounds.鈥澛
Again, Brown suggested she had tried to present herself as much smaller than the players who were likewise throwing back drinks. 鈥淣o, that wasn鈥檛 what I was doing.鈥澛
Brown: 鈥淪o you just said what you said rather than the truth.鈥澛
Such minor quibbles could stick with a jury, particularly if the intention is to portray the complainant as someone who is untruthful and lacking in credibility.聽
When she got to the hotel room with McLeod, E.M. said she undressed herself in the bathroom. No one compelled her to remove her clothes or to remain naked, not then and not later, when she says she was made to lie on a bedsheet on the floor. 鈥淣ot with physical force, but I believe they did it in other ways.鈥澛
Brown put it to the witness that she later led Formenton into the bathroom. 鈥淚 don鈥檛 believe I was leading him in there.鈥澛
Brown: 鈥淭here鈥檚 going to be a witness at this trial who says you pulled him in.鈥澛
While some of her memory is hazy, the complainant said she remembers the men 鈥渟houting, saying 鈥榮omeone have sex with this girl.鈥欌澛
It was the complainant, Brown asserted, who鈥檇 said she wanted someone to have sex with her. That she鈥檇 said, in an exasperated tone: 鈥淎re you going to f—- me or play golf?鈥 (The players, in town for a Hockey Canada gala, had a golf game scheduled for the morning.)聽
鈥淣o, I don鈥檛 remember saying that at all,鈥 the witness protested. 鈥淒efinitely not. It doesn鈥檛 sound like something I would say.鈥澛
It was E.M., Brown continued, who was 鈥渆gging the players on鈥.聽
E.M.: 鈥淚鈥檓 aware of those suggestions. But I was shocked because those are not words that would come out of my mouth. I know I was out of my mind and not feeling like I was in control 鈥 I remember them saying what they wanted to see or wanted me to do.鈥澛
Brown maintained that Formenton didn鈥檛 want to have sex in front of his teammates, and that was why the complainant led him into the bathroom. She recalled it differently: 鈥淚 resigned myself to the fact that it was going to happen in the bathroom.鈥澛
On her sixth day of cross-examination and in graphic detail, the complainant was pushed on the defence claim she was an active participant that night.
On her sixth day of cross-examination and in graphic detail, the complainant was pushed on the defence claim she was an active participant that night.
Formenton offered to wear a condom before bending her over the sink and taking her from behind. 鈥淚t鈥檚 not like he forcefully bent me over, but I was bent over the counter.鈥 Brown claimed E.M. was not yet sufficiently lubricated and that she wetted her fingers. She did not remember telling Formenton that she didn鈥檛 want him to ejaculate inside her. 鈥淚 don鈥檛 recall that, but that鈥檚 how it ended.鈥澛
With Formenton done, she left the bathroom and performed oral sex on some of the others. 鈥淚鈥檓 not 100 per cent sure if that was before I went into the bathroom or after. Sorry, it鈥檚 blurry.鈥澛
Formenton was McLeod鈥檚 roommate. He then got into his own bed, said Brown. E.M., however, said that Formenton had leaned in towards her. 鈥淚 felt like he was coming toward me for a hug.鈥澛
Brown said the complainant was feeling scorned by the players after providing them with sex, after only Formenton and McLeod 鈥 who clearly wanted her gone 鈥 were left in the room. 鈥淣o, I wasn鈥檛 feeling scored about that. I definitely felt disrespected. I felt disrespected the whole night.鈥澛
She put her clothes back on, preparing to leave. 鈥淚鈥檓 fully dressed at that point. I could finally say no. They were done with me.鈥澛