Defence wraps its case in hockey players' sex assault trial

Defence lawyers representing five hockey players accused of sexual assault closed their case Monday, wrapping up testimony in a trial that has heard from nine witnesses over roughly six weeks, including the complainant and one of the accused.

Lawyers for the defence and the Crown are set to make legal submissions next week, and the judge is expected to set a date to deliver her ruling in the case.

Michael McLeod, Dillon Dube, Alex Formenton, 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.

The Crown alleges McLeod, Hart and Dube obtained oral sex from the complainant 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.

Four of the five accused — McLeod, Formenton, Dube and Foote — chose not to testify at trial. Hart took the stand over two days last week, including one day of cross-examination by the Crown. Court also heard or watched recordings of interviews McLeod, Formenton and Dube gave to police in 2018.

People accused of crimes are not required to testify in their own defence, nor is the defence required to call any evidence.

The accused players were all members of Canada's 2018 world junior hockey team and court has heard many on the roster were in London, Ont., for a few days in June 2018 for series of events celebrating their championship win.

One of those events was an open-bar gala hosted by Hockey Canada, after which several players decided to continue celebrating at a downtown bar, court has heard.

The complainant was at the bar drinking and dancing with co-workers, but ended up leaving with McLeod, court has heard. The two returned to his hotel room and had sex, an encounter that is not part of the trial.

The trial focuses on what happened after a group of players came into the hotel room.

The complainant, who was 20 at the time, testified she was surprised and scared when men she didn't know came into the room. She was naked and drunk, and felt she had to go along when they started describing sexual acts they wanted her to perform, she said.

She felt her mind "shut down" and engaged in sexual acts while on "autopilot," she told the court.

Defence lawyers for the players have suggested she initiated sexual activity, at times taunting the players to have sex with her.

On Monday, court heard testimony from London police Det. Lyndsey Ryan, the lead detective assigned to the case when it was reopened in 2022. 

The original investigation, led by then-Det. Steve Newton, was closed without charges in early 2019, and Ryan told the court she was tasked with making sure "everything was done properly."

Under questioning from one of Hart's lawyers, Riaz Sayani, Ryan said she first spoke to the complainant on July 20, 2022 to let her know that the investigation was being reopened. Police announced the move later that day, court has heard.

They spoke again on the phone about a week later, and the complainant mentioned a statement she had submitted to Hockey Canada and the NHL, the detective said. Ryan requested a copy of the statement and the woman agreed, she said, later clarifying that she obtained the statement from the woman's lawyers.

Sayani suggested the detective found the 2022 statement "helpful" because it included "significant differences" from the statement the complainant gave police in 2018.

He pointed to a document prepared ahead of trial in which Ryan noted that in 2018, the complainant was "self-blaming and not sure if what happened was wrong," while in 2022, “she seems to understand how she felt and that what happened in that room was wrong.”

The 2022 statement seemed to indicate the complainant "had processed some stuff," Ryan said. She agreed it was helpful, but said it didn't change anything for her in terms of the investigation, nor did she have any intention of re-interviewing the complainant at the time she received it.

"We thought that we had everything we needed from her," and re-interviewing her would be "re-traumatizing," she said.

Ryan was asked for more details on her initial interaction with the complainant, and the decision not to interview her again for the renewed investigation, under cross-examination by prosecutor Meaghan Cunningham.

When she heard the investigation was being reopened, the woman told Ryan it was a lot of information to process, partly because she believed that chapter of her life had closed once her civil lawsuit against Hockey Canada and eight unnamed players was settled, the detective said.

"She was actually quite upset," Ryan said. "I got the sense that I was opening up some wounds that she was trying to close."

"She wasn't expecting this," so they determined she didn't need to make a decision at that point, Ryan said.

The detective agreed one of the reasons she decided not to pursue another interview with the complainant was because she wanted to limit how many times the complainant had to relive the events of that night.

Ryan was asked about her observations regarding the complainant's two statements, and her comment that the woman initially seemed to be blaming herself and was uncertain whether what happened was wrong.

"From your perspective, was that problematic for you in finding grounds to believe an offence had occurred?" Cunningham asked.

"No, I found it actually quite normal," Ryan said, based on her experience with these types of investigations.

In the document where she made those observations, Ryan attributed the change between the 2018 and 2022 statements to the complainant having had four years to understand she was not to blame and that "her acquiescence did not mean consent," court heard.

At one point, as the detective mentioned the potential emotional impact of the investigation on the complainant, there was an audible gasp from the portion of the courtroom where members of the players' families and others were seated.

Ryan chose not to interview co-workers who were with the woman at the bar because she believed they did not have relevant information and was mindful of the complainant's privacy, she said, adding the co-workers didn't know what was alleged to have happened after they parted ways with the woman that night.

Picture Courtesy: THE CANADIAN PRESS/Nicole Osborne