Defence in hockey sexual assault trial continues cross-examination of complainant

Content warning: This story includes allegations of sexual assault.

LONDON, Ont. — The complainant in the sexual assault trial for five former NHLers broke down in tears after being challenged on Wednesday about identifying her assailants on the night of the alleged incident in June 2018.

The woman, known as “E.M.” in court documents because of a publication ban on naming her, answered from elsewhere in the courthouse via CCTV to cross-examination by lawyer Megan Savard, who represents Carter Hart.

Toward the end of questioning during cross-examination by Savard about misidentifying one of the John Does in the statement of claim in a 2022 lawsuit against Hockey Canada, E.M. said she was “really trying” but was becoming “flustered with everything” before covering her face and appearing to cry. E.M. and the jury were then excused for the day by Justice Maria Carroccia.

Earlier, E.M. told Savard she had trouble identifying the men in the room because “a lot of them look alike,” and she didn’t want to misidentify someone because she understood the seriousness of the allegations. She added she didn’t identify anyone definitively, she was “just trying my best to help” and that she was “leaving the rest of the investigation up to” London police.

Savard suggested earlier to E.M. that she was performing for the men in the room in the Delta Armouries hotel in the early hours of June 19, 2018, putting on the “persona of a porn star,” offering to provide sexual services.

“I don’t have any memory of that,” E.M. said during the second day of intense cross-examination. “It could be possible.”

Savard suggested that one of E.M.’s “coping mechanisms on this unusual night” might have been to offer sex.

“I was not acting like myself,” E.M. said.

“You were acting like a porn star?” Savard asked.

“Yes, I felt that was the thing they wanted. They were trying to re-create a porn scene,” E.M. said.

Savard also questioned whether E.M. was drunk or acting sober, in particular in reference to one of the phone videos shown in court in which she says she is “so sober.”

“There are times in the room where you are putting in an effort to act in a way that’s different than what you’re actually feeling?” Savard asked.

“Yes,” E.M. said. E.M. added that if she had been sober, she would’ve remembered the cellphone videos in which she appears to give consent.

Inconsistencies in E.M.’s three statements to London police in 2018 and her statement as part of the Hockey Canada investigation of 2022 also came under scrutiny by Savard. E.M. said she didn’t thoroughly examine her Hockey Canada statement before signing it electronically because, in her mind, the London police investigation had been concluded in February 2019 and the Hockey Canada investigation wasn’t as serious.

Savard said E.M.’s explanations for the “inaccuracies” between the statements were “false.”

“I don’t agree with that,” E.M. responded.

“I truly believe that when I signed (the Hockey Canada statement), I thought it was for a separate investigation. I didn’t know it would all be part of the same investigation eventually.”

Michael McLeod, 27, has been charged with two counts of sexual assault, including one relating to aiding in the offence. Dillon Dube, 26, Cal Foote, 26, Alex Formenton, 25, and Hart, 26, have each been charged with one count of sexual assault. All have pleaded not guilty to their charges.

Cross-examination by Daniel Brown, lawyer for Formenton, is expected to begin Thursday.