Crown prosecutors argue a woman accusing five hockey players of sexual assault did not voluntarily agree to the sexual acts that took place in a London, Ont., hotel room, nor did the players take reasonable steps to confirm her consent.
Prosecutor Meaghan Cunningham is also asking the judge to reject the evidence of some witnesses that the complainant was the "sexual aggressor" that night in June 2018, as well as the defence suggestion that the woman asked Michael McLeod to invite his teammates into the room for sexual activity.
In her final submissions, Cunningham argues the evidence shows McLeod brought his teammates into his hotel room without any belief the woman was interested in that and knowing she had not asked for it — something the prosecutor says is important to understanding the events that followed.
Defence lawyers made their closing submissions this week, repeatedly challenging the complainant’s credibility and reliability as a witness and arguing she was an active participant in the sexual encounter.
The trial — which began in late April and heard from nine witnesses, including the complainant and one of the accused — largely turns on the issue of consent.
McLeod, Carter Hart, Alex Formenton, Dillon Dube and Callan Foote have pleaded not guilty to sexual assault, while McLeod has also pleaded not guilty to an additional charge of being a party to the offence of sexual assault.
McLeod, Hart and Dube are accused of obtaining oral sex from the woman without her consent, and Dube is also accused of slapping her buttocks while she was engaged in a sexual act with someone else.
Formenton is alleged to have had vaginal sex with the complainant inside the hotel room's bathroom without her consent, and Foote is accused of doing the splits over her face and "grazing" his genitals on it without her consent.
Most of the 2018 world junior team was in London that June for a series of events marking their gold-medal performance earlier in the year. After an open-bar gala hosted by Hockey Canada on June 18, many ended up at Jack's, a downtown bar where the complainant was drinking and dancing with co-workers, court has heard.
The woman, then 20, was introduced to McLeod by one of his teammates and eventually they left together to go to his hotel room, where they had sex, court has heard. That encounter is not part of the trial, which centres on what happened afterward.
McLeod sent a text to a team group chat asking if anyone wanted a "three-way," and Hart replied he was "in," according to screenshots shown in court. Over the next while, several teammates came into the room, though a few only stayed a short time, court heard.
The arrival of unknown men scared the woman, who was naked and drunk at the time, she told the court over more than a week on the stand. She felt she had no choice but to go along with what they wanted, and engaged in sexual acts while on "autopilot," she said.
Under cross-examination, the woman said she took on a "porn star persona" as a coping mechanism because she believed it would bring the situation to an end more quickly, as she felt the men expected a "porn scene."
Two teammates called by the Crown testified the woman at some point asked the group whether anyone would have sex with her. Hart, the only accused player to take the stand in his own defence, also recalled the woman making similar comments.
The complainant said she had no memory of saying anything like that, but that it was possible given her level of intoxication.
In their submissions to Ontario Superior Court Justice Maria Carroccia, lawyers for McLeod, Hart, Formenton and Dube argued their clients engaged in consensual sexual activity with the complainant.
Foote's lawyer, meanwhile, argued Wednesday her client did not touch the woman sexually — or at all.
Julianna Greenspan pointed to Hart's testimony that he saw Foote, fully clothed in a shirt and shorts, do the splits over the complainant's torso without coming into contact with her body, "all in the full context of smiles and laughs, not just by those directly around, but also (the complainant) herself."
The judge should be left with a reasonable doubt that "whatever allegedly took place was a non-threatening and momentary interaction in jest," and "qualitatively distinct" from the sexual conduct admitted by the other accused players, Greenspan argued.
Carroccia is expected to deliver her ruling on July 24.
Picture Courtesy: THE CANADIAN PRESS/Nicole Osborne
