E.M.'s 'white lie' snowballed into sex assault charges, defence argues at ex-world junior players' trial

Victims of traumatic events “may not have a complete and detailed memory of the event’ but they have an “overriding and enduring memory” of the thing that is frightening, Humphrey argues.

The fact E.M. testified it took “years to process” the event is not believable, he adds.

“It doesn’t take years to process that you were scared,” Humphrey says.

He asks the judge to consider that E.M. first said she was scared when she was filing her civil claim, and argues she “scripted” being scared to bolster her lawsuit.

Two defence witnesses, then world junior hockey players Tyler Steenbergen and Brett Howden, testified E.M. was asking men to have sex with her and egging them on. Carter Hart (the only accused man to take the witness box) also testified about that, Humphrey reminds the judge.

E.M. testified she was scared and her mind disconnected from her body as the men made her perform sex acts.

Humphrey, however, tells court it’s “crazy” and “preposterous” to think that when E.M. was scared, she did more than just go along with what the men were saying.

“When you’re terrified, you do the minimum to avoid the harm. You give in to demands. It’s preposterous to say that, ‘I came up with this consent that to get out of the room, I will invite everyone to have sex with me.’”

If E.M. had truly been scared in the hotel room, she would have told Det. Stephen Newton that in her first interview, Humphrey says. (Newton led the first investigation, starting in 2018, that ended a few months later with no charges).

“If she were scared in the room, and that was the real reason for her participation in the sexual acts, she would have said so,” Humphrey says. “She didn’t say she was scared or afraid because she was not scared or afraid.”

E.M. told police she was drunk, but then in her civil lawsuit, says she was “terrified,” Humphrey tells court.

McLeod’s lawyer says E.M. became a “national cause célèbre” after her lawsuit was settled with Hockey Canada and it became public (first reported by TSN’s Rick Westhead).

The men didn’t know about the lawsuit until after it was settled and appeared in the news, and Humphrey says that “burdened” the defence side with a “one-sided narrative for years.”

“She has an interest to support the narrative she gave her family and she used to secure a settlement from Hockey Canada that is now known by all. It is that background that your honour must weigh her evidence,” Humphrey says.

E.M. takes “no personal responsibility” for her actions and defaults to “claims of drunkenness and fear as justification for all those actions,” he says. “She is not an honest or reliable witness” and has “motive to fabricate.”

According to Humphrey, E.M. told her mom a “white lie that snowballed into a criminal investigation” because she regretted drinking too much, cheated on her boyfriend and was “sexually adventurous” with a group of men.

Essentially, E.M. didn’t want her mom to know that she got drunk and had sex, so she made up a story, and her mom and mom’s boyfriend took it to the police and Hockey Canada, Humphrey puts to Justice Maria Carroccia.

“She wants people to see her as a victim rather than a person who made personal choices,” he says. “As her drunkenness diminished, she may not have wanted to acknowledge to others or to herself that she had just been sexually adventurous with multiple men in a hotel room that she just men that night."

David Humphrey, Michael McLeod’s lawyer, is the first lawyer for the accused men to give closing arguments, and says he will focus on the reliability and credibility of E.M.’s testimony.

“This is a case where the defence has an embarrassment of riches — a cornucopia of compelling credibility and reliability concerns in E.M.’s testimony,” Humphrey argues.

The case is all about consent and the onus is on the Crown to prove the allegations. There’s an “innocent explanation" to explain E.M.’s fabrication of what happened, Humphrey says.

“It was E.M. who chose to abandon restraint,” and she was a willing participant in the drinking and the dancing, and then the actions in the hotel room, he argues.

She may not have initially planned a night like this, but her “inhibitions were lowered and her sexual interest was heightened.”

As sobriety returns, regret comes and so does “concern for personal reputation,” Humphrey tells the court.

Good morning. I’m Kate Dubinski, a reporter based in London, who has been covering this trial from the beginning.

Once again, there were supporters of E.M. outside the courthouse this morning as the closing arguments get set to begin. There are also a lot of members of the public in both the main courtroom and the overflow courtroom.

Each of the five defence teams will deliver closing arguments first, and have said they’ll take one to two hours each. After that, it will be the Crown’s time to give its submissions.

After weeks of testimony, the final arguments we’ll hear beginning today will all come down to preparation, according to Michael Coristine, a former senior Crown who now works as a criminal defence lawyer in Toronto.

“These lawyers have spent hours and hours, hundreds of hours getting to this point, pouring over all the statements, all the evidence,” Coristine, who isn’t involved in the world junior hockey sexual assault trial, told me. “There's no ‘night at the improv.’ This is all carefully constructed, crafted. The closing submissions were likely written weeks in advance in anticipation of the issues.”

The defence may raise reasonable doubt arguments, around whether the players might have been under the mistaken belief or reasonable apprehension that E.M. might have consented, he said.

“I would certainly focus on the strengths of my client's evidence and the corroborative evidence around that, and focus a little less on the damaging parts while still confronting them because you want to be credible with the judge and always acknowledge that the Crown did have some evidence, or we wouldn't be here.”

Coristine says the defence doesn't have to prove anything — just raise a doubt on these factors.

“If the judge arrives at a shoulder shrug and says, ‘Look, I have a feeling that some things happened in this room that were not above board or not conventional and maybe not even consensual but I can't be sure about it,' then that's a win for the defence. It always is in every case.”

As the defence starts its closing arguments, here’s a quick primer on the concept of “reasonable doubt.”

“Reasonable doubt is an important principle in the criminal justice system generally,” says Lisa Dufraimont, a professor at Toronto’s Osgoode Hall Law School who isn’t involved in the world junior hockey case.

“An accused person is presumed to be innocent and then it's up to the Crown, the prosecutor, to prove beyond a reasonable doubt that they are guilty, that they've committed all the elements of the offence,” adds Dufraimont.

“What that really means is that if there is a plausible view, a reasonable story that could be accepted from the evidence that the person isn't guilty, then they'll be acquitted.”

Dufraimont says it is a difficult standard for the Crown to meet in any criminal case.

“In sexual assault cases,” she says, “proof beyond a reasonable doubt is particularly challenging because we often have issues of consent.”

That often means the judge has to consider a number of factors when trying to determine whether or not the complainant consented.

“We have to look at what the complainant said and did at the time. There may be credibility issues about the complainants' claims, there may be credibility issues about other witnesses or the accused person who were there in the room on the issue of consent, so it's a really difficult issue to navigate in terms of proof beyond a reasonable doubt,” she said.

A judge, Dufraimont says, has to look at the direct and circumstantial evidence that weighs in both directions and determine if it meets the standard of proof beyond reasonable doubt. She can also choose to accept some, none or all of a witness's testimony.

“It's easier said than done,” she said. “At the end of the day, it's for the Crown to prove the case beyond a reasonable doubt. If the judge does not know whom to believe, the accused persons will be acquitted.”

The last witness in the trial, a London Police Service detective who led the 2022 investigation that resulted in charges against the five accused, finished testifying last Monday.

Kate Dubinski, my colleague who has covered the trial from the very beginning, was in London court to hear what Det. Lyndsey Ryan had to say.

She summarized Ryan’s testimony in this story, so check it out to see where proceedings left off before closing arguments get underway today.

It’s been a few days since we’ve had a live page of trial coverage. That’s because the final witness wrapped up testimony on June 2, and court adjourned for the remainder of the week so the lawyers could prepare their closing arguments.

The trial has stretched across three months and a lot of dramatic turns have unfolded in the courtroom.

To get caught up on where things stand, my colleague Katie Nicholson put together a helpful week-by-week rundown of the testimony and key moments.

You can check it out here.