MANDEL: 'This is a case about consent,' Crown says in opening of world junior hockey sex assault trial

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WARNING: Graphic details

And now it becomes clearer why it’s taken almost seven long years to try five world junior hockey champs on charges of sexual assault.

This was never going to be a slam dunk case.

At the opening of the sensational trial in London, with each of the well-dressed defendants sitting at a separate table beside their highly-known and highly-priced lawyers, and with media watching from around the world, the prosecutors laid out for the first time the disturbing details of the sex assault allegations against the once-star hockey players.

But in the midst of those details, as distasteful as it seems, there could be a gaping wide empty net for the defence to argue an honest but mistaken belief that the young woman had consented.

Their worlds collided on the night of June 18, 2018. Members of the winning Canada junior hockey team were in London for a Hockey Canada gala and after the party, several had gone drinking at Jack’s, a bar on downtown Richmond St.

Crown attorney Heather Donkers told the jury the complainant, who was 20 at the time and can only be identified as E.M., was at the bar with friends when some of the players began chatting her up and dancing with her. By the end of the night, she’d consumed about eight drinks and agreed to go back with player Michael McLeod to the Delta hotel, where the team was staying.

But the “atmosphere changed” after their consensual sexual hook-up, Donkers said, when the complainant will testify McLeod began texting on his phone. “You will see copies of those text messages which include messages Mr. McLeod sent to his teammates in a group chat asking, ‘Who wants to be in a 3-way quick. 209 – mikey’ and you will also hear that Mr. McLeod went into the hallway and invited people into his room where (E.M.) still lay naked under the covers of the bed.”

At one point, she said, there were 10 men in room 209.

McLeod, 27, Dillon Dubé, 26, Cal Foote, 26, Alex Formenton, 25, and Carter Hart, 26, have all pleaded not guilty to sexual assault. McLeod has also pleaded not guilty to an additional charge of being a party to the sexual assault.

Their once-promising careers — four were playing in the NHL — tanked after charges were finally laid last year.

Donkers warned the jury that E.M. will testify she never said “No” or physically resisted, and at different points in the night, some witnesses will testify she was offering to perform sexual acts or asking whether anyone was going to have sex with her. The prosecutor acknowledged that for many who believe in myths and stereotypes about how a sexual assault victim should behave, this will be a red flag.

What she didn’t say, but we all know, is that for their defence lawyers, it will also be a bonanza — and it’s painful to imagine the brutal cross-examinations by five different lawyers that the complainant will endure.

“But we anticipate you will hear (E.M.) testify that when she was in this hotel room, at age 20, intoxicated, and a group of large men that she did not know were speaking to each other as if she were not there and then they started telling her to do certain things, she did not feel that she had a choice in the matter,” the Crown said.

“On occasion, she tried to leave the room, but the men coaxed her into staying. And so she found herself going through the motions, just trying to get through the night by doing and saying what she believed that they wanted.”

The jury will see two brief videos taken by McLeod on his phone — which he turned over in 2019 — where the woman made statements such as “It was all consensual.” That may seem damning but Donkers insisted they’re not evidence of the consent legally required at the time each act occurred.

“You will hear evidence as well from E.M. and others as well that the defendants took no steps to ensure there was affirmative consent when they touched her,” the Crown charged. “Instead, they just did what they wanted.”

Those non-consensual sex acts, she said, included: McLeod, Hart and Dubé receiving oral sex from E.M., Dubé slapping her on her naked buttocks, Formenton having sexual intercourse with her in the bathroom and Foote doing the splits over her and brushing his genitals over her face.

At the end of the night, Donkers said, there’s evidence McLeod had intercourse with her again — this time without consent. His second charge, she added, alleges that throughout, “McLeod assisted and encouraged his teammates to engage sexually with E.M. knowing she had not consented.”

The jury will see video of E.M. leaving the hotel in tears before taking an Uber home where the prosecutor said she cried in the shower. London Police were contacted and the team soon learned there was an investigation.

Donkers said McLeod sent her a message, “What can you do to make this go away?”

All five defendants were in a team group chat a few days later, she said, where they discussed what happened, the investigation and “about making sure that they all said the same thing to investigators.”

Finally, the Crown attorney told the jury they’ll hear about phone calls made by Dubé and Foote asking some of their teammates to leave out what each had done to E.M. in the hotel room.

Despite their fears, that initial police investigation never resulted in charges. It would take more than six years before the hockey world would be stunned by their arrests.

mmandel@postmedia.com

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