LONDON, Ont.鈥擲he never said 鈥渘o.鈥
Even though she may have wanted to, even though she felt trapped and coerced, even though she鈥檇 had a lot to drink 鈥 as did the many young men who wheeled through that hotel room, lured by the scent of sex.听
Almost seven years have passed since that night and the cascading scandal that followed much later, which put Hockey Canada in the crosshairs of public outrage and with the very culture of hockey in Canada under the microscope. Amidst a torrent of denunciation and revulsion over purported toxic masculinity in this country鈥檚 defining sport. As if the game was at fault for producing players of such immense privilege and narcissism.听
It鈥檚 not the game, though, that is on trial here. It鈥檚 five defendants, members of the 2018 world junior hockey championship team 鈥 outcasts from pro hockey since the charges were laid early last year 鈥 who鈥檝e pleaded not guilty to sexual assault.听
In the same courtroom where, in 2009, half a dozen members of the notorious Bandidos biker gang were tried in connection with eight first-degree murders 鈥 each accused sitting in separate glass-partitioned cubicles 鈥 the former and possibly never-again hockey players were stacked row upon row with their lawyers. Looking very much like, well, NHL players in civilian clothes, as if they鈥檇 just gotten off the team bus.听
But on June 18, 2018, they were feted luminaries, in town for a Hockey Canada fundraising gala. Followed 鈥 at least a couple of them 鈥 by drinking and dancing at a waterhole called Jack鈥檚 Bar, where, court heard, they fatefully intersected with a 20-year-old woman who can be identified only by the initials E.M. 鈥 her identity protected under the usual publication ban afforded to alleged victims of sexual assault.听
The courtroom heard graphic details as the Crown laid out its opening statement in the
On Wednesday, with Superior Court Justice Maria Carroccia presiding, Crown Attorney Heather Donkers delivered the opening address to the jury. It can be described as a roadmap for the evidence that the prosecution expects to present at a trial that might extend to eight weeks. Five defendants after all, ranging in age now from 25 to 27: Michael McLeod, Alex Formenton, Carter Hart, Dillon Dub茅 and Cal Foote. Flanked by top-drawer defence lawyers.听
Donkers wasted no time cutting to the crux of the thing. This trial will pivot on the issue of consent.听
鈥淭his case is not about whether (E.M.) said 鈥榥o,鈥 or removed herself from an unwelcome situation when she had the opportunity. This case is about whether (E.M) voluntarily agreed to engage in each and every instance of sexual touching that took place, at the time that they happened.鈥澨
And that will doubtless open the field to a dispute over what consent means in Canadian law in the context of sexual intimacy. 鈥淭he evidence we anticipate you will hear in this case may not match up with expectations you have about what a sexual act is or looks like,鈥 said Donkers.
What鈥檚 been entered in an agreed statement of facts amounts to the bare bones of events from that evening into the small hours of June 19,听and that the events in question took place听in Room 209 at the Delta Hotel, which was registered to McLeod and Formenton.听
听
McLeod, said Donkers, had been among a group of players who鈥檇 gone to Jack鈥檚 Bar. It was McLeod, continued the Crown, who approached E.M. there with some of her friends. They chatted, they danced 鈥 video from the bar was entered as an exhibit. The complainant consumed about eight alcoholic drinks, said Donkers. Then, shortly after 1:20 a.m. she left the bar with McLeod and headed to the Delta, where all the players were staying.
In Room 209, McLeod and E.M. had sexual intercourse. 鈥淭his first act of sexual intercourse is not the subject of this trial,鈥 said Donkers. 鈥淪oon after that sexual act ended, the atmosphere in the room changed.鈥澨
There鈥檚 nothing unusual about a pick-up in a bar. Attractive young woman meets attractive young man and they repair to a private place for sex. But in the prosecution鈥檚 presentation, things got strange; more than E.M. had bargained for. The complainant noticed McLeod texting on his phone. E.M. did not know to whom or for what purpose. Jurors will see, Donkers indicated, messages McLeod sent to teammates in a chat group. One of those, said Donkers, asked: 鈥淲ho wants to be in a three-way, quick?.鈥澨
E.M. was naked under the bed cover when other men began arriving. It鈥檚 alleged that up to 10 men were in that hotel room at different points in the night.听
Five former members of Canada’s 2018 World Juniors hockey team, from left to right, Alex Formenton, Cal Foote, Michael McLeod, Dillon Dube and Carter Hart as they individually arrived to court in London, Ont., on Tuesday.
Nicole Osborne The Canadian Pres鈥淵ou will hear from some witnesses that, at different times in the night, (E.M.) was offering to perform sexual acts or was asking whether anyone was going to have sex with her.鈥澨
Donkers, while providing only a superficial overview, told the jury that the complainant went along with what was unfolding 鈥 鈥渨hat she felt they expected of her鈥 鈥 because she was drunk, uncomfortable and didn鈥檛 know what else to do.听
鈥淓ach of the five accused in this case had sexual contact with (E.M.) without her voluntary agreement to the specific acts that took place.鈥 Without her consent, continued Donkers, McLeod, Hart and Dillon obtained oral sex. Without her consent, continued Donkers, Dub茅 slapped the woman on her naked buttocks while she was engaged in a sexual act with someone else. Without her consent, continued Donkers, Formenton had vaginal sex with the complainant in the bathroom. Without her consent, continued Donkers, Foote 鈥渄id the splits鈥 over the woman鈥檚 face as she lay on the ground, grazing his genitals over her face. At the end of the night, McLeod allegedly vaginally penetrated E.M. again, without her consent.听
McLeod is facing a second charge for allegedly being a party to the continuing sexual assault 鈥 that, throughout the night, he 鈥渁ssisted and encouraged his teammates to engage sexually鈥 with the complainant, 鈥渒nowing she had not consented鈥.听
Although听E.M. will testify, court will not hear, said Donkers, that she said 鈥渘o鈥 to the specific sexual acts for which the ex-players were charged, nor did the alleged victim resist those acts. But she was 20 years old, intoxicated and didn鈥檛 feel she had a choice in the matter. In any event, alleged Donkers, none of the defendants took any steps to ensure that the sex acts were consensual.听
鈥淚nstead, they just did what they wanted.鈥
