Recap: Here’s what court heard about each of the 5 accused in the hockey players’ sex assault trail

The judge in the world junior sexual assault trial is expected to hand down her verdict on Thursday. CTV London’s Nick Paparella recaps the trial.

An Ontario judge is set to deliver her ruling Thursday in the case of five hockey players accused of sexually assaulting a woman in a London, Ont., hotel room seven years ago.

Michael McLeod, Carter Hart, Alex Formenton, Dillon Dube and Callan Foote have all pleaded not guilty to sexual assault in the June 2018 encounter, and McLeod has also pleaded not guilty to a separate charge of being a party to the offence of sexual assault.

Prosecutors argue the woman did not voluntarily consent to any of the sexual acts that took place after several team members arrived in the room, nor did the accused players take reasonable steps to confirm that she did.

The defence argues the woman initiated and actively participated in the sexual activity, and at times taunted the players to do things with her.

Here’s a recap of the Crown’s and defence lawyers’ arguments about each player, as well as some of the key evidence.

Since the burden of proof is on the Crown, much of the evidence discussed was presented by the prosecutors. People accused of crimes are not required to testify or present evidence, and police statements can only be used as evidence for the person who made them.

CAUTION: The following paragraphs contain graphic content some readers may find disturbing.

Michael McLeod

Prosecutors allege McLeod was the one who “orchestrated this whole sordid night,” offering sexual activities with the complainant – with whom he’d just had sex in his hotel room – to his entire team without her knowledge or consent.

They argue he should be found guilty of being a party to the offence of sexual assault because he took steps to encourage others to sexually assault the complainant.

McLeod texted the team group chat shortly after 2 a.m., asking if anyone wanted to have a threesome, court heard, and offered oral sex from her to two teammates directly, one by text and the other in person. He also went out into the hallway to invite others into the room, court heard.

His actions were meant to give the impression that the woman was interested in taking part in sexual activity, the Crown argued.

McLeod also took two short videos of the complainant that he hoped would shield the group from criminal liability, the Crown said. In one, the woman says she’s “OK with this,” and in the other, that it was “all consensual.”

In a 2018 interview with police, McLeod said he took the first video because he was “kind of worried something like this might happen,” meaning the investigation. He did not tell the investigator about his text to the team group chat.

The videos are not evidence that the woman actually consented, prosecutors argued, noting that consent must be given for each act at the time it occurs.

The Crown also alleges McLeod sexually assaulted the complainant when he twice obtained oral sex from her after the others arrived, and when they had sex in the shower at the end of the night.

The woman testified that three men put their penises in her face while she was on a sheet on the floor. The Crown alleges McLeod was one of these men, though the woman could not identify them.

Some people shouted commands as the woman performed oral sex, and she felt someone spit on her back, then slaps on her buttocks, she told the court.

She performed oral sex on McLeod later while he lay on the bed, and again she felt slaps on her buttocks, hard enough to hurt, she said. They had sex in the shower later, she said, describing it as one last thing she felt she needed to do before she was able to leave.

The Crown argues there is no evidence of any conversation between McLeod and the complainant about those sexual acts, or evidence that he took any steps to verify that she was voluntarily consenting. Rather, the Crown argues, he was relying on legally incorrect beliefs about what consent is and how it can be communicated.

In his interview with police, McLeod said he left the room briefly to pick up food after some others arrived, and when he returned, the woman was giving oral sex to Hart.

More men arrived, he said, and at one point the woman started asking them to have sex with her. She was upset when no one would take her up on it, and later offered oral sex, he said in the interview, which was played in court.

McLeod, who did not take the stand at trial, only described receiving oral sex once in his interview with police, in close succession with Hart and maybe Dube. The woman came into the shower with him later and they had sex, he said.

He told the investigator he checked in with her throughout the night to make sure she was OK with what was happening.

Defence lawyers for McLeod argue the woman presented an “entirely unbelievable and unreliable” version of what transpired that night, including that she engaged in sexual acts because she was afraid.

The woman knew McLeod was inviting others, and he was communicating with some of the players he was trying to recruit in her presence, David Humphrey argued.

She stayed in the room after her initial encounter with McLeod because she was waiting for the men to arrive, he said.

The defence lawyer argued the videos his client took of the woman show she was consenting and not scared, even though they were taken after the fact.

“The evidence overwhelmingly establishes that (the woman) was communicating consent, asking players for sex, offering oral sex. And it would have been plain to Mr. McLeod … that she was consenting,” Humphrey said in his closing submissions.

Carter Hart

Hart arrived in the room expecting sexual acts from the complainant and didn’t take any steps to confirm that she was actually consenting before obtaining oral sex from her, the Crown alleges.

When McLeod texted the team group chat about a “three-way,” Hart replied that he was “in,” court heard. The player, who was 19 at the time, also testified McLeod told him on the phone he had a girl in his room who “wanted to have sex with some of the boys,” meaning his teammates.

Hart, who was the only player to take the stand in his own defence, told the court that he was interested but wanted to assess the situation in the room and whether the woman consented before committing to the sexual encounter.

During cross-examination, prosecutors asked Hart whether he did any of that assessment when he got to the hotel, but the player said he couldn’t remember.

Hart’s first memory of the complainant is seeing her masturbating on the floor, he said. The woman then said something along the lines of, “can somebody come f— me?” he said.

Hart said he didn’t want to have intercourse so he asked the woman for a “blowie,” meaning oral sex. He testified that she said “yeah” or “sure” and helped him pull down his pants.

The oral sex lasted about 30 to 60 seconds because Hart couldn’t become fully erect and felt weird about the situation, he said.

The Crown alleges Hart also received oral sex on a second occasion, in quick succession with McLeod and Dube, pointing to the complainant’s account as well as some of the testimony of two other teammates, Brett Howden and Tyler Steenbergen. Hart agreed under cross-examination that it was possible but said he couldn’t remember.

Prosecutors argue Hart acted on the belief that because the woman had offered sex, it meant she was consenting to any sexual act with any man.

“(The woman) never invited a blow job or oral sex, even on Mr. Hart’s account,” Donkers argued in closing submissions.

Hart was the only witness to testify that he asked for a “blowie,” and his evidence should be disregarded as not credible or reliable, the Crown said in its written submissions.

Even if it was true, the Crown argued, that would not be enough to conclude that he had an honest but mistaken belief the woman was consenting because the “highly unusual and oppressive circumstances” required him to take more steps to confirm it.

Defence lawyers representing Hart argued the woman gave “unequivocal communicated consent” to oral sex with their client.

Megan Savard urged the judge to accept her client’s evidence that he made an “explicit and specific request” for oral sex after the complainant offered vaginal sex, and that the complainant agreed verbally and through her actions.

Savard argued there is also no evidence of the classic factors capable of vitiating or removing consent, such as physical coercion, blocking the door or threats, just the complainant’s vague and “unfounded feeling” that some of those things might happen.

Alex Formenton

The Crown argues Formenton did not take any steps to confirm whether the woman consented before having sex with her in the hotel room’s bathroom.

Formenton, who was 18 at the time, did not testify at trial but he told police in 2018 that he “volunteered” to have sex with the woman after she asked the group if anyone would “do anything” with her.

Formenton told police he said he didn’t want to have sex in front of the group, then followed the woman when she walked into the bathroom. He put on a condom, they had sex, then he took off the condom and finished with oral sex, he said. He did not mention any conversation between them.

In her testimony, the woman described someone following her when she got up to go to the bathroom, and said she resigned herself that sex was going to happen. She felt she did not have control over the situation, she said, and did not recall any conversation with Formenton.

Howden testified that Formenton made a comment along the lines of “should I be doing this?” to a few teammates as he and the woman walked to the bathroom. He couldn’t remember if anyone answered directly but said people “just left it up to him.”

Prosecutors argue that even if the woman did ask whether anyone would have sex with her, it does not mean that she made a voluntary choice to have sex with Formenton in the bathroom.

“He did not say that (the woman) suggested that they go to the bathroom to have sex. He did not even say he suggested they go to the bathroom to have sex and she said “OK,”” the Crown said in its written submissions.

Her walking to the bathroom is ambiguous conduct and not indicative of consent, the Crown argued.

The judge, however, said during the Crown’s closing submissions that it was all part of the sequence of events that she must consider.

Ontario Superior Court Justice Maria Carroccia said that if she finds the woman asked the group if anyone would have sex with her, then Formenton stood up and said he would do it but not in front of others, and the woman then walked to the bathroom with Formenton following behind, it’s “not so ambiguous, in those circumstances.”

Formenton’s lawyer, Daniel Brown, argued the evidence overwhelmingly establishes that the woman consented to sex with his client.

“They both agreed. It’s not complicated,” he said in his closing submissions.

Dillon Dube

Prosecutors allege the woman did not voluntarily consent to perform oral sex on Dube, nor could she consent to being slapped on the buttocks because she didn’t know it was going to happen.

Dube did not testify at trial but told police in 2018 that he didn’t know what was going on when he walked into the room and saw a naked woman lying on a sheet on the floor.

He had a golf club in his hand because they were taking part in a tournament in the morning, and the woman said something like, “are you going to play golf or f— me?” he said.

The woman announced she was leaving because no one would have sex with her, but stayed after Hart said he would do something, Dube said in the interview.

She performed oral sex on Hart, and at some point, Dube stood up and thought, “I might as well,” he said. He pulled down his pants and received oral sex for about 10 seconds before realizing it was “a bad idea” and stumbling back, he said.

He left soon after with Foote and another teammate, he said.

Dube did not tell the investigator he touched the complainant’s butt, nor was he asked about it. His lawyer said Dube may have forgotten to mention it and may not have realized its significance in the context of the night.

Steenbergen saw Dube slap the woman’s butt after Hart received oral sex but before McLeod did, he told the court. “It wasn’t hard, but it didn’t seem soft either,” he said.

Prosecutors are asking the judge to find that Dube also slapped the woman’s butt a second time while she performed oral sex on McLeod on the bed, based in part on Howden’s evidence that he left soon after hearing it.

Later, after Hockey Canada started looking into the allegations, Dube called and asked Steenbergen not to tell investigators what he had done, he testified. Howden also testified that Dube called and asked him not to mention it to investigators.

The woman testified she did not consent to being slapped and was not challenged on it, the Crown argued. The only suggestion put to her on this issue during cross-examination was that the slap occurred after the golf comment to Dube, which she denied making, the Crown said.

There is “zero evidence” from any witness that Dube took steps to verify that the woman consented to being slapped on the butt, prosecutors argued. Nor could he have had “any legitimate belief” that she had communicated consent for it, they said.

The woman did not consent to the oral sex either, and the transition between Hart, Dube and McLeod occurred quickly with no conversation, the Crown argued.

The woman “barely even had occasion to see Mr. Dube’s face before he put his penis in her mouth,” it argued.

“She was not consenting to oral sex with anyone, let alone Mr. Dube specifically, and identity of the partner is a central feature of consent.”

Dube’s lawyer argues the oral sex her client received was consensual, and his interview with police establishes there was some communication between him and the complainant about the sexual activity.

The complainant has not identified who she alleges slapped her, and Steenbergen – the only person to remember seeing it – agreed under cross-examination that it was playful and not abusive, Lisa Carnelos said.

Dube admits he “placed his hand on (the woman’s) buttocks” in the manner described by Steenbergen, she said.

It amounts to “nothing but a very minor playful act consistent with foreplay” between two people who were already engaged sexually, she argued.

Callan Foote

Prosecutors allege Foote did the splits over the complainant at the urging of his teammates and grazed his genitals on her face without her consent.

The woman testified that after she performed oral sex on three men, a fourth man who wasn’t wearing pants did the splits right over her face and put his penis on it. She didn’t see his face, she told the court.

She “could not consent to something she did not expect was going to happen by someone whose face she didn’t even see,” the Crown argued in its written submissions.

The only evidence that the woman agreed to this act came from Hart, whose testimony on the issue was “contrived” and “unbelievable,” the prosecution argued.

At one point in the night, Hart testified, some of the men started egging on Foote to do the splits. Hart said he saw the other player do the splits over the woman as she lay on the ground, without touching her body. Foote was wearing shorts and a T-shirt at the time, Hart said.

The players thought it was funny and Hart said he saw the woman laughing as well. Under cross-examination from Foote’s lawyer, he agreed he didn’t view the incident as sexual and that Foote pushed on the bed to hoist himself back up.

However, in cross-examination by the Crown, he acknowledged that he agreed Foote used the bed to get up because it was suggested by the other player’s lawyer, and because “it makes sense.”

Hart agreed that everything involving the complainant in that room was sexual, and in that context, it does not make sense that the group would find it entertaining to see Foote do partial splits while clothed, particularly since they had seen him do the splits earlier that night at the bar, the Crown argued.

Hart’s evidence that the woman consented to the splits was based on the fact that she was laughing, but even if the woman did laugh, that does not indicate consent, the Crown argued.

Even if the judge finds the splits happened as Hart described, prosecutors argue Foote should still be found guilty of sexual assault because the complainant was naked and a reasonable observer would see the circumstances in the room as sexual.

Steenbergen and Howden said Foote also called them a week later, asking that they not mention his actions to Hockey Canada investigators.

Foote’s defence lawyer, Julianna Greenspan, argued her client didn’t touch the complainant at all. The Crown failed to prove the alleged interaction “occurred in a sexual context,” and Hart’s evidence should leave the judge with a reasonable doubt regarding the charge, the lawyer argued.

Whatever took place was a “non-threatening” and “momentary interaction in jest,” and it happened “in full context of smiles and laughs,” she argued, noting Foote was known for doing the splits as a “party trick.”

There is no evidence that Foote took off his pants or that anyone asked him to do so, Greenspan added.

In cross-examination, Greenspan suggested to Steenbergen that he was mistaken about Foote calling him and had possibly gotten confused because of the call he’d received from Dube. Steenbergen said it was possible but that he was “pretty sure” Foote had called him as well.

Howden rejected Greenspan’s suggestion that the call with Foote never happened.