Potential of a surprise Crown witness sparks courtroom spat at Hockey Canada trial

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LONDON, Ont. – Prosecutors have introduced the possibility of a surprise player witness in the Hockey Canada sexual assault trial.

In an animated exchange at the end of Wednesday’s proceedings, Crown attorney Meaghan Cunningham told Justice Maria Carroccia that the Crown was “nearing the end” of its case but that there were some “late-breaking events” about an additional witness who may be called, prompting defense attorney Megan Savard to object to the timing.

“Sorry, Your Honor,” Savard said. “This was, I think, the first we’re hearing that this is not the Crown’s last witness.”

Savard said that the defense was just learning about this development and asked the Crown to make a decision by the end of Wednesday’s proceedings to provide the defense ample notice to prepare its own evidence. Carroccia rejected that bid from Savard, stating that Cunningham was “entitled to think about that.”

Cunningham pushed back on Savard’s complaint of late notice, stating that she had sent an email to defense attorneys on Tuesday about the potential availability of a player who had recently returned to Canada.

“It’s simply not true that this is the first time she’s heard of that,” Cunningham said.

Savard argued that the player hadn’t even yet been subpoenaed. Cunningham fired back that he had, which elicited a stern response from Carroccia: “OK, all right, enough,” the justice said. “Enough.”

Cunningham said she will have more information about whether the Crown will call that player as a witness, or conclude its case, Thursday morning.

The heated back-and-forth ended a day in which retired London Police sergeant Stephen Newton took the stand again, shedding significant light into the 2018 police investigation of allegations that members of the 2018 Canadian World Juniors team sexually assaulted a 20-year-old woman in a London, Ont., hotel room while they were in town for a Hockey Canada event celebrating their championship run. That testimony centered around the investigative efforts he made throughout the course of the police probe, as well as the avenues he did not pursue.

Michael McLeod, Dillon Dubé, Carter Hart, Alex Formenton and Cal Foote are each accused of sexual assault. All five players pleaded not guilty in the trial, which is now in its sixth week.

The complainant in the case, known as E.M. because her name is protected by a publication ban, said she was degraded, humiliated, slapped and spit on by players who encouraged her to perform a number of what she described as non-consensual sexual acts over the course of several hours. She said the players, who had golf clubs, also told her to insert a golf club and golf balls in her vagina, and that she felt vulnerable and scared throughout the course of the night.

Newton said he never felt he had grounds to support a finding that she was too intoxicated or incapacitated to consent, based on what he observed on both surveillance videos of her entering and leaving the hotel and multiple videos filmed of E.M. in the early-morning hours of June 19, 2018, provided by McLeod’s attorneys. Newton also said that he had a concern that there also “may have been a level of consent given her active involvement.”

When asked by the Crown about his investigative efforts, Newton said he obtained surveillance video from Jack’s bar where E.M. and the players had been prior to the alleged incident, but did not review those videos. Instead, he said he kept those videos in storage. He also said he did not send the clothes he collected from E.M. for forensic analysis, nor did he send search warrants or production orders for Hockey Canada’s investigative records.

Newton was the lead detective on the case when E.M. first made a report just days after the alleged incident and until it was closed in February 2019. (The case was later reopened, leading to the current charges.)

As part of his time on the stand on Wednesday, the Crown played a videotaped interview Newton did with Formenton in November 2018, approximately five months after his first interview with E.M., and an audio interview with Dubé the following month. Those interviews, which the players agreed to on a voluntary basis after Newton informed them he did not have grounds to charge them with sexual assault, highlighted discrepancies amongst player testimony and provided further insight into Newton’s investigative efforts.

In his interview, Formenton said on the night in question he received a text message from McLeod asking him if he wanted to come back to the hotel to have a three-way. (Newton asked Formenton if he had this message during the interview but moved on after Formenton told him he got a new phone; he never followed up with McLeod about the message.) When he got to the hotel room, Formenton said he encountered E.M. fully clothed and chatting with players. He said she later got undressed and performed oral sex on Hart. He said she was then asking other players to have sex with her but that a bunch of the players “didn’t feel comfortable” having sex in front of each other.

“So I volunteered,” Formenton said. “But I honestly didn’t want to do it in front of guys. I found that very awkward and weird.”

Formenton said he had vaginal and oral sex with E.M. in the bathroom. He said that E.M. later performed oral sex on Dubé in the main room for approximately 10 minutes. Asked what he observed as E.M. performed various sexual acts, he said that the other players in the room “were just sitting there watching.”

Multiple players who have testified previously described speaking to one another and “hanging out” but not watching the acts because they felt “awkward.”

Formenton said he noticed that E.M. was “embarrassed” at times throughout the night because players didn’t want to have sex with her but disputed any notion that she was taken advantage of by anyone.

“I mean, she was instigating pretty much everything that happened,” Formenton told Newton. “She wanted everything that happened. She had free will to give the oral sex to everyone and our sex was consensual.”

Dubé, in his interview with Newton, referenced being the captain of the 2018 team and said that he “would have controlled the guys” and “kicked guys out” if he had thought she wasn’t able to consent. He said of E.M. that he “felt like she wanted to be there more than us” and was “chirping” those who didn’t engage with her sexually.

“I didn’t really want to be there, to be honest,” Dubé said. “That was kind of not what I’m about. I don’t really need that in my life.”

Dubé said E.M. performed oral sex on him for 10 to 15 seconds.

“I was just like, no, this isn’t good. I don’t want to do this,” Dubé said, adding that he stumbled back and off the side of the room with his pants around his ankles.

Dubé said it was at this time he suggested to Foote that they both leave the room.

Newton asked Dube if he recalled anybody mentioning a golf club, to which he replied:

“Uh, yeah, I had one in my hand,” adding that the players were slated to golf the next day.

When questioned further about what he did with the golf club, Dubé said he had it in his hand and E.M. goaded him about whether he was going to play golf or have sex with her.

Dubé is accused of slapping E.M. on the buttocks, though Newton did not ask Dubé about this during his interview. In cross-examination, Dubé’s attorney, Julie Santarossa, said that Foote previously told Newton in an audio interview that he heard that Dube was touching her butt. When asked why he didn’t ask Dubé about this, Newton replied that he may have overlooked it:

“Maybe I missed that,” he said.

On Tuesday, McLeod’s first police interview from 2018 was shown, revealing differences in at least one key area to defense attorney arguments in the trial.

The trial will resume Thursday, at which point, the Crown is expected to share more information about whether it will call an additional witness.

— The Athletic’s Dan Robson reported from Toronto and The Athletic’s Kamila Hinkson reported remotely from Montreal. 

(Photo by Nathan Denette / The Canadian Press via AP, File)

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