Crown in World Junior sexual assault trial argues E.M. did not ‘voluntarily agree to charged sexual acts’

Defense lawyers wrapped up their closing arguments at the world junior sexual assault trial. CTV London's Nick Paparella reports.

Warning: This story contains graphic details and allegations of sexual assault

Lisa Carnelos, lawyer for former world junior hockey player Dillon Dubé, continued her final submissions in a London., Ont., courtroom on Wednesday morning.

Carnelos told the court that to this day, none of the players have spoken to Dubé and there is no collusion to make up a story, previously suggested by the Crown.

“This is the most lame attempt at collusion I’ve seen in my life,” she said.

Carnelos argued that based on “credibility issues” with the complainant, known as E.M., the Crown’s case “must fail.”

“They failed to prove sexual assault allegations made by her,” she said.

Dubé along with four other former world junior players – Cal Foote, Carter Hart, Michael McLeod and Alex Formenton – have pleaded not guilty to sexual assault in connection with an encounter at a hotel room in London in 2018.

Final submissions from defence

Foote’s lawyer, Julianna Greenspan, focused on her client and the “reliability” and “credibility” of E.M.

Greenspan argued the Crown failed to prove the alleged interaction with Foote occurred “in a sexual contact.”

E.M. previously testified Foote did the splits on her and “grazed” his genitals on her face in room 209 at the Delta Hotel.

Greenspan suggested the Crown’s case was “lacking foundation, contrary to the burden of truth and overreaching for a conviction.”

She argued Foote was “fully clothed” and it was a “non-threatening” interaction, as shown by Hart’s testimony.

Hart previously testified that there was no physical contact between E.M. and Foote, and he had his shorts and T-shirt on.

Greenspan suggested: “It was a fun exchange, and you could see her smiling and laughing?”

Hart agreed.

“Hart testified it was a cool thing that Foote could do the splits, and that he saw him do it on the dance floor the night before,” said Greenspan.

Greenspan argued E.M. did not say the person who did the splits on her had no pants on in her 2018 statement with retired police officer Steven Newton.

“The reason she failed to do so is because it did not happen,” said Greenspan.

E.M.’s version of the events on the night in question are “manifestly unreliable” and manifestly “not credible,” said Greenspan.

Greenspan argued it was clear in E.M.’s testimony that she “indeed had an agenda.”

The court previously heard E.M. initially refer to the men as “boys” in her 2018 interview with Newton, but in her testimony call them “men.”

“The complainant’s evidence speaks for herself and reaffirms there was a calculated reason behind her language,” said Greenspan.

Greenspan argued this “subtle change” points to a witness who is “not worthy of belief.”

Final submissions from the Crown

Crown attorney Meaghan Cunningham began her final submissions on Wednesday afternoon, starting by saying E.M., didn’t “voluntarily agree to the charged sexual acts” that took place in the early morning hours of June 18, 2019.

The Crown argued Justice Maria Carroccia “must reject” the theory put forward by defence.

Cunningham suggested “E.M. did not ask for group sex.” She argued McLeod failed to “affirmatively mention” the “3-way” text he sent to the group chat at 2:09 a.m., during his interview with Newton.

“He had every interest in saying things that made him look less culpable and making it clear E.M. was the instigator,” said Cunningham.

Cunningham went on to highlight the text message exchange between E.M. and McLeod on June 20, 2019, where E.M. says she was okay going home with McLeod but not expecting “everyone else afterwards.”

The Crown suggested there is no evidence that E.M. asked for the men to come to the room or told McLeod to invite them.

Cunningham argued E.M.’s testimony was clear and consistent in regarding the claim that she was “surprised” when the other men came into the room.

She suggested evidence provided by former World Junior players Taylor Raddysh and Boris Katchouk about how E.M. was behaving supports the claim that she “did not ask for group sex.”

Cunningham reminded the court that both Raddysh and Katchouk testified E.M. did not “offer” or “ask” for any sexual contact from them.

“If she had asked McLeod to invite his friends to the room for sexual activity, you would expect her to say something to the first two teammates that entered the room,” said Cunningham.

The Crown argued someone was “offering sexual acts” to McLeod’s teammates, but it “wasn’t E.M.”

Cunningham suggested McLeod was “trying to recruit more people” to participate in sexual acts with E.M.

Cunningham reminded the court that McLeod texted Raddysh, telling him to come to his room if he wanted “a gummer,” recruited Katchouk from the hallway, called Hart and knocked on Raddysh’s door.

“These are the actions of a man who is personally invested in bringing men into the room to engage sexually with E.M.,” said Cunningham.

Cunningham will continue her final submissions on Thursday morning.

If you or someone you know is struggling with sexual assault or trauma, the following resources are available to support people in crisis:

If you are in immediate danger or fear for your safety, you should call 911.

A full list of sexual assault centres in Canada that offer information, advocacy and counselling can be found ​on the website for Ending Sexual Violence Association of Canada.

Helplines, legal services and locations that offer sexual assault kits in Alberta, B.C., Saskatchewan, Manitoba, Quebec, Ontario and Nova Scotia can be found here.

National Residential School Crisis Line: [phone]

24-hour crisis line: 416 597 8808

Canadian Human Trafficking Hotline: [phone]

Trans Lifeline: [phone]

Sexual misconduct support for current or former members of the Armed Forces: [phone]

Read about your rights as a victim here.