The Crown continued its closing submissions Thursday in the world junior sexual assault trial, arguing that the defense was not necessarily fair in its cross-examination of the complainant.
Crown attorney Meaghan Cunningham returned to the podium on Thursday to continue arguing why the complainant, referred to as E.M. due to a publication ban, should be believed in this case.
Part of Cunningham’s submissions included calling out the defense counsel’s cross-examination style toward E.M., saying their conduct was offensive.
"What was happening to (E.M.) over the course of seven days of cross-examination, the cross-examination of (E.M.), those questions were not innocuous,” Cunningham said. “Quite often, they were very accusatory, and as I've already pointed out, defense counsel conveyed quite clearly through their words and tone, sometimes even laughing or scoffing during their questioning of her, they conveyed to her the apparent unbelievability of her answers."
Cunningham specifically mentioned that defense attorney David Humphrey laughed when E.M. testified that she wanted to appease the men as a reason for her sexual behavior in the London, Ont., hotel room.
Cunningham branched off of this, saying the complainant’s acts during the alleged incident can’t simply be viewed based on logic, recalling when Humphrey suggested to E.M. that she could have just gone back into the bathroom, or even put her clothes back on and tried to leave when she exited the bathroom to multiple new men in the hotel room.
“I submit that many of the submissions made by defense about (E.M.'s) testimony require your honor to engage in that prohibited analysis,” Cunningham said. “They require your honor to judge her conduct against assumptions about how someone in her situation should behave generally, and these suggestions and submissions, and also in my submission, assume that anyone in her situation is necessarily making conscious choices, and that logic is what should dictate how we evaluate her evidence, which in my submission, that is not the case.”
Humphrey represents Michael McLeod, one of the five accused former members of Canada’s 2018 world junior team, including Carter Hart, Alex Formenton, Dillon Dube and Cal Foote. These five men pleaded not guilty to sexual assault stemming from a June 2018 incident, in which E.M. alleges she was sexually assaulted in a London hotel room. McLeod has also pleaded not guilty to a second charge as a party to the offense.
During the cross-examination process, some of the defense counsel referred to E.M. as an “older woman,” Cunningham told the judge. She also said Foote’s lawyer, Julianna Greenspan, said at multiple points in the trial the complainant referred to the players as “boys” as opposed to “men” in her 2018 statement to police. But Cunningham pointed out that E.M. also referred to the players as “the guys,” and that the ‘boys versus men’ argument just attempts to put more of the responsibility on the complainant.
“This is a juxtaposition that infantilizes the defendants and leaves the impression that (E.M.) was more mature and bears a greater responsibility for her actions than the defendants do,” Cunningham said.
Cunningham also touched on the debate about how intoxicated E.M. was during the early hours of June 19, 2018.
Multiple members of the defense counsel argued the complainant did not appear to be moving or speaking in an intoxicated manner in the security footage and cell phone videos shown in court. But Cunningham defended the argument that the complainant had a high level of intoxication by saying the way alcohol affects individuals is very subjective, and while she may not have appeared as highly intoxicated, she very well could have been.
“She knows how she looks sober, and she knows how she looks drunk,” Cunningham said. “None of these men in the room do."
Hockey Canada Sexual Assault Trial Judge Sets Verdict Date As Defense's Closing Arguments Continue
Warning: coverage of the Hockey Canada trial includes graphic details of alleged sexual assault that may be disturbing to readers.
The trial is expected to resume on Friday, with the continuation of the Crown’s closing arguments.