Defence targets E.M.'s credibility, judge questions 'consent videos' shown at world juniors sex assault trial

Throughout the weeks-long trial, demonstrators have regularly appeared outside the London courthouse as the defendants, lawyers and observers arrive for proceedings.

Many voice support for the complainant, carrying signs with messages like, “I believe you E.M.” and “We believe survivors.” But they’ve also been confronted by some people who say the lives and reputations of five men have been irrevocably damaged by allegations of sexual assault.

The polarization on the courthouse steps echoes a broader debate on social media and in discussions across Canada as this high-profile trial plays out under tremendous public scrutiny.

My colleague, Karen Paul, took a closer look into how the trial has become a flashpoint for both the #MeToo and #HimToo movements, and what research indicates. You can read her feature reporting here.

Court is on the lunch break until about 2:15 p.m. ET.

See you then.

The Crown has taken the position that the group chats between the then world junior hockey teammates, on June 16, 2018, were “a sort of collusion to advance a false narrative,” Humphrey reminds the court.

But he argues the players told each other they need to “tell the same story” not because they were trying to make up lies, but because they were “typing these messages as scared young men, not thinking that their every word is going to be interpreted in a court of law and may be held against them.”

The men are “living the hockey players’ dream … heading to the NHL, and were trying to figure out what was going on with the Hockey Canada investigation.”

The men were simply trying to figure out what was going on and wanted to tell the truth, Humphrey maintains.

One proof of that is McLeod told the men in the group chat that he’d had sex with E.M. before everyone else showed up.

“He wants people to tell the story truthfully,” Humphrey says.

Court has previously seen the text exchange between E.M. and McLeod.

E.M. replies to McLeod’s text, saying she was OK with going home with him, but “it was everyone else afterwards” that she “wasn’t expecting. I felt I was being made fun of and being taken advantage of.”

Humphrey says E.M. and McLeod were only expecting a small number of men to show up, not 10. But he adds that a threesome doesn’t involve more than one or two additional people.

“If his invitation was for as many guys as possible, he wouldn’t have called it a 3 way,” Humphrey says.

Humphrey now turns to the Instagram direct message and texts between McLeod and E.M. in the wake of their time in Room 209 at the Delta hotel.

McLeod subsequently contacted E.M., on June 20, 2018, after he learned that Hockey Canada had been contacted about what happened that night. (Court previously heard that E.M.’s mother’s boyfriend called Hockey Canada).

It’s natural McLeod would reach out to E.M. and ask what was going on, Humphrey argues. The fact she responded in a “friendly manner” is contrary to E.M.’s narrative she was terrified, he adds.

“She could have just ignored the guy. Block him. Be done with him. Instead, we get this friendly response,” Humphrey says.

McLeod was not trying to “improperly deter” E.M. from pursuing a police investigation and contacting her isn’t “evidence of guilt,” but rather, he was just a guy asking a girl why she went to the police and telling her to go and clear things up, the lawyer contends.

“Isn’t that exactly what an innocent person would do?”

Justice Maria Carroccia asks Humphrey if he thinks the videos should be taken at face value and Humphrey says yes.

“It’s evidence that E.M. was consenting, albeit after the fact,” Humphrey says. “She’s speaking candidly … Just look at her. She looks and sounds like she is not significantly affected by the alcohol.

“Time has proven that Mr. McLeod was right to get some recorded confirmation of her consent,” Humphrey says.

Humphrey contends the two short videos McLeod recorded on his phone — in which the then hockey player asks E.M. if she was OK and if she consented — prove he was trying to check in on her.

“Society expects and the law requires that people not engage in sexual activity” If there isn’t consent that is communicated with words and actions, Humphrey tells court.

McLeod took the videos in a “responsible manner” and it is “critical evidence” that she was “happy and fine” with what was happening, the lawyer says.

“It’s a good thing he took those videos.”

During his time in the witness box, Hart testified the two videos were not taken because the men assumed E.M. wasn’t consenting, but rather because it’s something professional athletes do.

“It prevents players from being in a position that these players are in now,” Humphrey says.

Humphrey is now explaining why his client, McLeod, told then London Police Service police investigator Stephen Newton in 2018 that he had no idea why guys started showing up in his room, but that they may have thought there was pizza in the room.

Newton, a now-retired sergeant who testified earlier in this trial, led the first investigation and the case was closed early in 2019 with no charges laid. Newton’s interview with McLeod was recorded in 2018 and played for the court while Newton was testifying.

What McLeod didn’t tell Newton was he’d sent a text to the team group chat asking guys to come to his room for a “3 way,” Humphrey tells the court today.

(McLeod is the only one of the five accused former players who faces an additional charge — of being a party to the offence — for allegedly inviting men back to his hotel room to engage in sex. He’s also pleaded not guilty to that second charge.)

Humphrey says McLeod was “really only inviting a limited number of people” to come to the room and was surprised at the number of people who showed up. Court has heard there were as many as 10 men in the room at one point. Hart is the only player who responded “I’m in” to the “3 way” invitation.

Humphrey says it’s likely his client simply forgot about that “3 way” message and that, “unfortunately,” the detective never searched his client’s phone.

After the morning break, Humphrey, McLeod’s lawyer, continues his closing arguments.

He argues E.M. had a “pre-existing interest” in having sex with other players. The best evidence of that, the lawyer argues, is that when men started showing up to the room, she either took her clothes off or remained unclothed and started asking the men there to have sex with her.

Hart (one of the five accused men) and Steenbergen and Howden (two former world junior teammates who aren’t facing any charges) all testified E.M. was either being flirty or asking men to have sex with her, Humphrey reminds the court.

The Crown is listening to the closing arguments and making notes. During its own closing submissions, which will start after the five defence teams have wrapped theirs, the Crown will be able to respond to statements by Humphrey and the other lawyers for the five men on trial.

Court is taking the morning break.

We’ll have more live updates once proceedings resume.