She attempted to assert herself as soon as the clapboard struck ACTION. Which is a mug鈥檚 game for anyone testifying in a courtroom. A witness isn鈥檛 the choreographer or director, even if she may be the star attraction.
In her sixth day on the stand at the trial of five former junior hockey players facing a spectrum of sexual assault charges, the complainant rather flung down a glove during cross-examination by a defence lawyer representing one of the accused. It was a non sequitur answer to an innocuous question.
“I feel this is also my time to stand up for myself,” declared the woman, known only as E.M., her identity protected by a standard publication ban. 鈥淪o I鈥檇 like to respond how I鈥檇 like to respond, if that鈥檚 all right.”
Lawyer Dan Brown shot back: 鈥淣o, it鈥檚 not all right.”
Justice Maria Carroccia gently rebuked the witness: 鈥淚鈥檇 like you just to answer the questions you鈥檙e asked.”
It was that kind of day Friday, as the marathon grilling continued. And there are still two more defence lawyers who will be taking the lectern.
鈥淵ou鈥檙e trying to make me second-guess everything I say and then I鈥檓 not sure,” the witness, testifying via CCTV from another room in the courthouse, complained. 鈥淚f I say something and it鈥檚 wrong, you鈥檒l discredit me.”
Well yes, that’s how a cross examination usually rolls. And the witness has already admitted that a statement to police she signed in 2022 contained significant errors. The complainant also settled a lawsuit with Hockey Canada that referenced eight “John Doe” players.
The complainant had misidentified one player who was never at Jack’s Bar on the night of June 18, 2018聽鈥 he was only 18, couldn鈥檛 yet legally drink聽鈥 and a second player, picked out from a police photo lineup based on the colour of his hair, who was never charged.
鈥淚 don鈥檛 think I wrongly accused anybody,” she told Brown. 鈥淚 was doing my best to help with the investigation. I didn’t mean to wrongly identify anyone.”
Again, when Brown took the witness back to events in a hotel room in the early morning hours after she’d left the bar with one of the players聽鈥 identified as Michael McLeod聽鈥 with whom she had consensual sex (the first time) before a number of his teammates arrived at his alleged invitation, she was apparently mistaken about who had laid a bedsheet on the floor upon which, she says, she was made to perform sexual acts.
鈥淚t didn鈥檛 feel like I had any other option,鈥 the woman testified under tense cross-examination on Wednesday.
鈥淚t didn鈥檛 feel like I had any other option,鈥 the woman testified under tense cross-examination on Wednesday.
That exchange with Brown annoyed the witness as well, because it was an area that had already been explored in earlier testimony. 鈥淚鈥檓 sorry. I thought we were not going to repeat things we鈥檇 already gone through this week.”
Brown: 鈥淚 get to ask the questions.”
The cross got frequently chippy. Some of the witness鈥檚 objections were reasonable; others were not. In any event, there鈥檚 little to gain from challenging a lawyer. The lawyer’s questions are not evidence, only the witness’s answers.
E.M. told court earlier this week that she鈥檇 had at least eight drinks that night and so she was quite inebriated. Lots of drinking, lots of dancing, lots of fun during what began as a night out with girlfriends. She became friendly with a group of young men whom she didn鈥檛 initially know were hockey players. Some of them, she’s testified, pulled her hand against their crotches.
But when Brown directed the witness to look at videotape from the bar, she couldn鈥檛 point out any instance that showed coerced groping. The only groping sequence showed the complainant laying her hand, at her initiation, against McLeod鈥檚 groin. 鈥淚t鈥檚 not on the surveillance, but that doesn鈥檛 mean it didn鈥檛 happen,” said E.M. of the allegedly unwanted intimacy. 鈥淵ou鈥檙e trying to make me think I don鈥檛 remember this.”
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
Brown: 鈥淚鈥檓 not trying to make you think anything.”
E.M. doesn鈥檛 dispute that she left the bar with McLeod anticipating they would have sex and that the intercourse which ensued was consensual. It鈥檚 what happened afterwards in Room 209 that鈥檚 at the crux of the case聽鈥 that she was so drunk and so shocked when McLeod allegedly invited all these other young men to join in the sexual escapade that she felt disconnected from her body, unable to resist or express her unwillingness. Even, as she described it for the jury, assuming the persona of a porn star as a coping mechanism.
The five accused聽鈥 McLeod, Alex Formenton, Carter Hart, Dillon Dub茅 and Cal Foote聽鈥 have all pleaded not guilty.
Brown, who鈥檚 representing Formenton, asked E.M. why she chose to go back to the hotel with McLeod. 鈥淚 honestly don鈥檛 know. We were just dancing and kissing 鈥 He was really all over me. And I was all over him.”
They were definitely attracted to each other, although the witness couldn鈥檛 recall registering any details about McLeod鈥檚 appearance other than he was taller than her, which was nice. 鈥淎s long as it鈥檚 a tall guy, you鈥檒l go home with him?” Brown snidely asked. E.M.: “No, that鈥檚 not what I said.”
The sequence of events has been somewhat jumbled, which is understandable all this time later, and hasn鈥檛 always aligned with the footage E.M. was watching.
E.M. had a boyfriend at that time and there was a moment when she went to the bathroom, tried to clarify in her own mind what she was doing and whether she should bring everything to a halt. But McLeod, she said, was waiting for her outside the bathroom and she missed the chance to get away from the situation.
鈥淲e continued dancing. I was with him the rest of the night 鈥 I made the decision to leave with him. I was fine going home with him.”
Brown has cast doubt on E.M.‘s contention that she was exceedingly drunk and 鈥渙ut of it” when she left the bar. Before leaving, she had a brief interaction with the bouncer, whom she鈥檇 known from high school. She didn鈥檛 mention this person in her statement to police. Brown suggested she omitted the bouncer because she didn鈥檛 want investigators to interview someone who might contradict her avowal of extreme drunkenness.
McLeod was on the dance floor at 1:18 a.m., as the video time stamp showed.
鈥淎s far as making good your escape, you had all the time in the world to get away from him,” suggested Brown.
E.M. countered that the footage showed her unsteady on her feet, leaning on the wall for support.
鈥淚t’s visible signs of drunkenness. I think that鈥檚 pretty clear there.”
By that point, however, she鈥檇 gotten over her frisson of indecision. 鈥淚鈥檝e always said that I had no problem going home with him.”
