Prosecutor calls Michael McLeod the architect of Hockey Canada sexual assault

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LONDON, Ont. – The prosecution described Michael McLeod as the “architect” of the “group sexual activity” at the center of the Hockey Canada sexual assault trial and said he told “outright lies” to portray the complainant as the aggressor in the sexual interactions of the night and advance a “false narrative.”

Attorney Meaghan Cunningham provided Justice Maria Carroccia an outline of the Crown’s argument, showing a power point in a closing submission on Wednesday that she said will demonstrate E.M. did not voluntarily agree to the charged sexual acts of the night. Cunningham began that presentation by telling Carroccia that she intended to prove E.M. did not want to engage in group sex and that McLeod repeatedly lied about his role as the orchestrator of the alleged incident.

McLeod, Carter Hart, Alex Formenton, Dillon Dubé and Cal Foote are all charged with sexual assault after an alleged incident in June 2018 in which a 20-year-old woman — known as E.M., whose identity is protected by a publication ban — has said she was sexually assaulted over the span of several hours in a London, Ont., hotel room. The players were in town for a Hockey Canada event celebrating their 2018 World Junior Championship victory.

McLeod is also facing a second charge for “being a party to the offense” for what the Crown has asserted was his role “assisting and encouraging his teammates to engage sexually” with E.M.

All five players have pleaded not guilty.

Cunningham highlighted that a key factual difference between the Crown and defense cases is what prompted McLeod’s teammates to come to his hotel room after he and E.M. had consensual sex. She said that the factual issue will “shape how the evidence is viewed.”

The defense has asserted E.M. encouraged McLeod to invite his teammates in seeking what McLeod’s attorney David Humphrey described as a “wild night.” E.M. said that she did not know McLeod was inviting others and was “surprised” when other men showed up in the room.

Cunningham said there was no evidence to suggest that E.M. encouraged McLeod to invite teammates back to his room and laid out five elements to demonstrate why Carroccia should accept E.M.’s version of events – that she did not want group sex and was surprised by men entering the room. She pointed to 1) McLeod’s 2018 police interview, 2) the June 20 text exchange between McLeod and E.M., 3) E.M.’s testimony, 4) the witness testimony of Taylor Raddysh and Boris Katchouk, and 5) McLeod’s actions in “recruiting” others to his room.

McLeod’s police interview

Cunningham said that McLeod was well prepared for his November 2018 interview with London Police, which took place under negotiated terms in Toronto with his attorney in the room, and yet did not make any mention of E.M. encouraging him to text his teammates. He also did not disclose the text messages he sent to a 19-person group chat and to Raddysh in the early-morning hours of June 19, 2018. He texted the group chat “Who wants a 3 way quick” with a follow-up message providing his hotel room number. He also texted Raddysh separately to ask if he wanted a “gummer,” which is slang for oral sex. Cunningham asked why McLeod would omit these messages in his interview with Detective Steve Newton and why, if it was true that E.M. was the initiator, he wouldn’t disclose that in the interview, considering that would bolster his narrative.

“There is no logical or plausible reason why he wouldn’t if it was a true fact,” Cunningham said. “McLeod lies repeatedly to Detective Newton in that interview but it’s the Crown’s position that he’s doing that in furtherance of a false narrative about what happened. The false narrative that Mr. McLeod is trying to craft is that he and his friends are completely innocent and that (E.M) was the instigator and the one demanding sexual activity.”

In the interview, McLeod initially told Newton he didn’t know why guys “kept showing up in his room.” When asked directly whether he texted teammates, McLeod acknowledged he texted teammates he was ordering food and had a girl in his room.

Cunningham said that if E.M. was the instigator of the group sexual activity, McLeod also would not have expressed the surprise and shock he conveyed to Newton in his interview about what he said was her sexually aggressive nature.

“It’s not just that he forgot, it’s not just that he didn’t mention that he sent those texts. He outright lies to Detective Newton,” Cunningham said. “He lies to Detective Newton repeatedly but in particular he lies to Detective Newton about the text message he sent or didn’t send that night.”

Text exchange between McLeod and E.M.

Cunningham showed Carroccia the text exchange between McLeod and E.M. from June 20, 2018. In that exchange, in which McLeod asks E.M. if she went to the police, E.M. tells him she was OK going home with him but that she didn’t expect others to come to the hotel room. She said she felt the players were making fun of and taking advantage of her.

McLeod responded, Cunningham said, by re-framing what she said and responding that he was “sorry that she was embarrassed” but warned about the serious “implications” if the police matter moved forward.

Cunningham said that if E.M. wasn’t the instigator, as multiple players had testified, McLeod should have expressed surprise that she was upset about the other players joining them in the hotel room.

E.M.’s testimony

Cunningham said E.M. was pressed repeatedly on the suggestion that she had prompted McLeod to invite others back to the hotel in pursuit of a “wild night” but “never wavered” in her testimony that she was surprised when players arrived in the room.

“Time and again she is pushed on this very same issue and her evidence is always the same, that she was surprised when other people started coming into the room and she does not think she would have ever asked for him to invite other people,” Cunningham said.

Testimony of Taylor Raddysh and Boris Katchouk

Cunningham said that Raddysh and Katchouk both testified about E.M.’s behavior that was consistent with the Crown’s assertion that E.M. was not seeking group sex.

Both players said that they observed E.M. in bed, with the covers up to her shoulders and neck, and that she did not participate in any conversation beyond asking Katchouk for a bite of pizza. She said this was behavior consistent with someone who felt uncomfortable, not someone who was looking to engage others sexually. She said that if the defense theory was true that she was asking McLeod to ask his teammates to come over for group sex — and wanting to engage in group sex — Raddysh and Katchouk’s testimony defies logic.

“It would make no sense she would make absolutely no effort to engage or attempt to engage with Mr. Katchouk or Mr. Raddysh, not a single offer,” Cunningham said.

Cunningham also pointed out that the testimony of both Raddysh and Katchouk differed significantly from other witnesses about E.M.’s behavior that night. Crown witnesses Tyler Steenbergen, Brett Howden and defense witness Carter Hart all testified that E.M. was the aggressor, asking players to have sex with her and insulting them when they declined.

When Carroccia pointed out this divergence in stories, Cunningham replied:

“I agree these things are irreconcilable and someone’s not telling the truth,” Cunningham said.

She noted that Raddysh and Katchouk’s description “is completely at odds” with the testimony of the players who were on the June 26, 2018, group chat. In that group chat, players strategized how to handle the impending Hockey Canada investigation and discussed what to tell investigators.

Cunningham said that they were the only two players who saw E.M. in Room 209 that night who were not on that June 26, 2018, group text chain.

McLeod’s actions from that night

Cunningham pointed to McLeod’s actions from the night to make the case that he was the instigator instead, and facilitated a group sexual encounter unbeknownst to E.M.

Cunningham used a visual display of the “3 way quick” and “gummer” text messages, sent at 2:10 and 2:15 a.m. respectively. She said McLeod made no efforts to vet who came to the room or took any efforts to get people to leave, but instead was “trying to drum up more business” and “recruit more people.”

Cunningham cited McLeod’s phone call to Hart, his recruitment of Katchouk from the hallway and his knocking on Raddysh’s door as evidence of this.

“(E.M.) was doing nothing either verbally or through her actions to communicate that she was at all interested in engaging in sexual activity with them,” Cunningham said. “But the evidence does establish that someone was offering sex to Mr. McLeod’s teammates in Room 209 and it wasn’t (E.M.).”

Cunningham ended with the fact that by McLeod’s own admissions, he said he was consistently checking in on her throughout the night, telling Detective Newton in his 2018 interview that he and his teammates had a “no phones” policy and that at one point he “calmed her down” because he said she was upset no one was having sex with her.

Cunningham said McLeod was intervening to “take some responsibility for managing the room” while all the events were unfolding.

“The reason he is doing that is because this was his idea to begin with,” Cunningham said. “He set this up.”

Earlier in the day, the defense teams finished their closing arguments. Julianna Greenspan, who represents Foote, said that her client performed the splits over E.M. as a “party trick” that was both “non-threatening,” not sexual and a “momentary interaction.” Foote is accused of doing the splits over E.M. while she was lying on her back, grazing his genitals over her face. Greenspan said that E.M. was seeking sexual encounters and attention and that Hart’s testimony that she was laughing was “consistent with her performative behavior in the room generally.”

“In plain language, Mr. Hart’s evidence was, this was in a playful manner, this was a playful trick, and (E.M.) was absolutely in on it,” Greenspan said.

Greenspan spent significant time returning to the issue of E.M. referring to the players as “men” throughout her testimony, painting the decision as intentional. Greenspan hammered this point repeatedly in cross-examination, but reinforced on Wednesday that E.M. had “an axe to grind.”

Greenspan undermined the credibility of Crown witnesses Brett Howden and Tyler Steenbergen, both of whom said Foote asked in a phone call to leave his name out of what happened in the hotel room prior to the players’ participation in the Hockey Canada investigation.

Greenspan said Howden was in “protect Howden mode” and suggested that Steenbergen was influenced by Henein Hutchison investigator Danielle Robitaille in his 2022 interview with Hockey Canada; she described that as “an investigation intended to support and corroborate the complainant’s civil lawsuit, one that Hockey Canada had just settled.”

Greenspan ended her closing argument by suggesting that the intense level of publicity and interest in the case has compromised the presumption of innocence and subjected the players, their families and their legal teams to unfair treatment, such as bullying and taunting.

Lisa Carnelos, attorney for Dubé, finished her closing submissions on Wednesday by arguing that her client did not engage in any collusion via the group chat he participated in with teammates on June 26, 2018 — “This is the most lame attempt at collusion I’ve ever seen in my life,” she said — or in either of the phone calls he had with Tyler Steenbergen and Brett Howden.

She explained the group chat as “the banter of young men” who were “confused” and “expressing nervousness and shock.” Carnelos described the phone calls Dube had with both Howden and Steenbergen prior to the Hockey Canada investigation — asking them to leave his name out of interviews with Hockey Canada about the incident — as “innocuous,” and “context specific.”

(Steenbergen testified that Dube asked him not to mention what Dube did in the room to investigators, adding that he wanted to speak for himself. Howden previously told investigators that Dube made the same request of him.)

Carnelos suggested it was “reasonable” that the call was about Dubé’s desire to call Hockey Canada staff member Shawn Bullock to tell Bullock himself about what happened.

Carnelos also suggested that the Hockey Canada and London Police reopened their investigations as a result of a “media frenzy” and described the situation as a “political hot potato.”

— The Athletic’s Dan Robson contributed reporting remotely from Toronto. 

(Courtroom sketch of Crown attorney Meaghan Cunningham and Justice Maria Carroccia from earlier in the trial by Alexandra Newbould / The Canadian Press via AP)

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