A woman accusing five hockey players of sexual assault made up a false narrative because she didn't want to take responsibility for her decisions that night, a defence lawyer for one of the players argued as final submissions in the case began Monday.
David Humphrey, who represents Michael McLeod, argued the complainant has presented an "entirely unbelievable and unreliable" version of what transpired the night of June 18 into the early hours of June 19, 2018, and urged the judge to disregard several aspects of the woman's testimony, including that she acted out of fear.
He argued the woman may not have been willing to acknowledge to others and even herself that she had been "sexually adventurous in a hotel room" with several men she had just met, and created a narrative "in which she bears no responsibility" for her participation in those acts.
She was upset that she had cheated on her boyfriend and felt McLeod and Alex Formenton, another accused player who was his roommate at the hotel, had been rude to her as she left, Humphrey said.
When her mother found her in the bathroom at home, looking upset, "it suited her purposes to present herself as a victim," the defence lawyer argued.
"But what started as ... an understandable white lie shared in private with her mother snowballs beyond her control into a criminal investigation."
McLeod, Formenton, Dillon Dube, Carter Hart and Callan Foote have pleaded not guilty to sexual assault. McLeod has also pleaded not guilty to an additional charge of being a party to the offence of sexual assault.
Prosecutors allege McLeod, Hart and Dube obtained oral sex from the woman without her consent, and Dube slapped her buttocks while she was engaged in a sexual act with someone else.
Foote is accused of doing the splits over the woman's face and "grazing" his genitals on it without her consent. Formenton is alleged to have had vaginal sex with the complainant inside the bathroom without her consent.
All five of the accused were members of Canada's 2018 world junior hockey team and were in London, Ont., with many of their teammates for a series of events marking their gold-medal victory at that year's championship, court has heard. Most of the team ended up at a downtown bar, Jack's, after an open-bar gala hosted by Hockey Canada, court heard.
The complainant, who was 20 at the time, was at the bar with some co-workers and eventually left with McLeod to go to his hotel room, where they had sex. That encounter is not part of the trial, which instead focuses on what happened after several other players came into the room.
She was drunk, shocked and scared when men she didn't know came into the room, she told the court during days of testimony, and felt unsure of how they would react if she didn't go along with what they wanted. She described feeling her mind "shut down" and engaging in sexual acts while on "autopilot."
In his submissions, Humphrey noted the onus is not on his client or the other accused players to prove their innocence or disprove the Crown's case, nor is the court's task to assess whether the men "could have been better behaved or more respectful."
Whether the complainant subjectively consented to the sexual activity is the crux of the case, and while only she can provide direct evidence of what was in her mind at the time, her credibility is "central" to the issue, he argued.
Humphrey suggested the woman came up with the explanation that she engaged in sexual acts because she was scared when she turned to the civil courts after the initial police investigation was closed without charges.
The detective in charge of the case told the woman he didn't have grounds to lay charges in part because she didn't appear intoxicated in videos that showed her coming in and out of the hotel and because it seemed there was a "certain level of consent given her active involvement," court has heard.
Court has heard from some of the players in the room, including Hart, that the woman at some point asked the group whether anyone would have sex with her. When that suggestion was put to her during cross-examination, the woman said she didn't remember saying it, but if she did, it was a sign that she was out of her mind from intoxication.
Humphrey said the idea that someone would invite people to have sex as a way to get out of a frightening situation is "preposterous." Someone terrified would "do the minimum to avoid harm," he argued.
Lawyers for the other players will also get the opportunity to make submissions to Ontario Superior Court Justice Maria Carroccia, followed by prosecutors. The judge is also expected to set a date to deliver her ruling.
The trial began in late April and has heard from nine witnesses, including the complainant and one of the accused.
Picture Courtesy: THE CANADIAN PRESS/Nicole Osborne
