Defence’s ‘splits’ argument draws strong reaction from complainant in hockey player sexual assault cross-examination

After seven days the cross examination of the complainant in the sexual assault trial of five former junior hockey players is over. CTV's Nick Paparella reports

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

After seven days, the cross examination of E.M., the complainant in the sexual assault trial of five former junior hockey players, is over.

Julianne Greenspan the fifth and final defence attorney, questioned E.M in a London, Ont., courtroom on Tuesday.

During the afternoon session, Greenspan, who is representing Cal Foote, suggested to E.M. that she was not as drunk as she has testified she was on the evening of June 18, 2018. Greenspan said E.M. has had to maintain the “narrative” that she was drunk because of her family and her boyfriend.

“I’m going to suggest that it is because if you do not follow this mantra of being so drunk, you knew that your behaviour would not be accepted by others,” Greenspan asked. “Do you accept that?”

“I think that my behaviour was that way because I was drunk and I think the behaviour of others, that should be questioned,” E.M. responded.

Greenspan suggested that E.M.’s claim during the trial that she did not eat before going out to dance and drink the evening of the alleged incident was the first time in seven years that she has publicly shared that fact.

Greenspan also showed E.M. and the jury a pair of shoes that were the same make and model as the ones E.M. wore the evening of the alleged incident. While Greenspan called the shoes stilettos, E.M. said she would call them heels. The shoes could not be easily slipped on and off and had a zipper on the back.

Greenspan asked E.M. whether she put her shoes back on when she was trying to leave McLeod’s hotel room. When E.M. said she did not recall if she had put on the shoes, Greenspan suggested that E.M. didn’t actually want to leave.

“You were never planning on leaving, obviously without your shoes and you weren’t really getting dressed to leave,” Greenspan said.

“Why else would I be trying to get dressed and go to the door?” E.M. said.

“You were putting on, what I would suggest, an act to say: ‘Okay, I’m leaving,’ to put the focus back on you. Do you agree?” Greenspan asked.

“No, not at all,” E.M. responded.

“I’m going to suggest that it worked... because what happened was the attention was put back on you and you resumed interacting with the boys in the room,” Greenspan said.

“No, I don’t agree with it. This was never attention that I was asking for. I was trying to leave. I tried multiple times to do so,” E.M. answered.

Greenspan suggested some of the men who gathered in McLeod’s hotel room were not paying attention to the then-20-year-old E.M., even though she was naked, because they were discussing other subjects and celebrating their world junior championship win together.

“Let’s get right down to the chase,” Greenspan said. “The guys who came into the room and were hanging out in the room were all there just for you?”

“They were objectifying me,” E.M. testified. “They were literally in there laughing at me. They could have let me leave if they weren’t in there for me, or they could have left. They didn’t need to be in the room. Literally any one of those men could have stood up and said, ‘This isn’t right.’ No one did...They thought I was fair game.”

Greenspan also read E.M.’s initial statement to police on June 22, 2018, about one of the players doing the splits over top of her and putting his penis in her face while she was lying on the floor.

During the Crown’s opening statement, Crown attorney Heather Donkers told the jury that Foote had done the splits overtop of E.M., grazing his genitals over her face.

Greenspan suggested on Tuesday that one of the players doing the splits was a “pretty cool thing” and described it as a “party trick.” The lawyer said that as the players were all “goofing around” in McLeod’s hotel room, one of the players said, “Hey Footer, do the splits.”

E.M. then laid down on the floor and encouraged the act, Greenspan suggested.

“I don’t know who in their right mind does that,” E.M. said, shaking her head.

Greenspan then suggested that the player who did the splits was wearing shorts.

“I think I can clearly remember having a penis in my face when someone is doing the splits on me…,” E.M. said. “I don’t think this would have stood out as shocking to me in my mind if he did have pants or shorts on.”

When the player was over top of her, E.M. pulled him closer, the lawyer said.

“When you touch, and he recoils from you, he gets up and walks away,” Greenspan said.

“I don’t remember it happening like that,” E.M. testified.

Men or boys?

Earlier in the day, Greenspan concentrated heavily on E.M.’s, language in her 2018 police statement versus how she is speaking today.

“Having listened to your evidence and gone through transcripts with the Crown, with your evidence with the Crown on Friday, May 2 and Monday, May 5, I would suggest that you refer to these individuals as man and men over and over and do not once, not one single time refer to them as boy or boys,” said Greenspan. “Do you accept that?”

“Yes, I accept that.” said E.M.

“I was going to put this suggestion to you, ma’am, having gone through all of the complete references of boy, not one single use of man. A complete opposite to what you’ve done at this trial is that the reason why you have so carefully changed your language is because you have come into this trial with a clear agenda. Isn’t that right?” said Greenspan.

“No, absolutely not. I just, I’m older. I understand more. I just, they were men.” said E.M.

Surrounded with hockey

Greenspan also revealed that in June 2018, at the time of the alleged incidents, the complainant worked at a sporting goods retail store that Greenspan pointed out sold hockey equipment, hats, jerseys and other clothing. The retail chain was also a sponsor of the 2018 World Junior tournament.

“[The sporting goods store] sold Team Canada jerseys, right?” Greenspan questioned her.

“I believe so. Yes,” said E.M.

“They sold hats with NHL and Team Canada logos?

“That’s right.”

“So all sorts of Team Canada paraphernalia, right?”

“That’s right,” confirmed E.M.

As she continued her cross-examination, Greenspan told the court E.M.’s dad played university-level hockey, her brother played competitive hockey in a local league, and in 2014, her dad won the volunteer of the year award for that league. Court also heard E.M.’s cousins played Junior B level hockey.

When questioned about being “surrounded in your family with hockey fans and hockey players,” E.M. said, she didn’t know her dad won the volunteer award and about her brother and cousins, said: “It wasn’t anything I was interested in or paid attention to. So I don’t know why that has anything to do with me.”

The Crown will begin its re-examination of her Wednesday morning.

• Here’s a recap of week two in the trial
• Day 11: Defence suggests complainant was ‘taunting and threatening’ former junior hockey players during sexual assault trial

Michael McLeod, Carter Hart, Alex Formenton, Dillon Dube and Foote have pleaded not guilty to sexual assault in connection with an encounter that took place in a London, Ont., hotel room in the early hours of June 19, 2018.

McLeod has also pleaded not guilty to an additional charge of being a party to the offence of sexual assault.

The events at the heart of the case took place as several members of Canada‘s 2018 world junior hockey team were in London for a gala marking their championship win.

The complainant, who was 20 at the time, is testifying by CCTV and cannot be identified under a standard publication ban.

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.