Lawyer defending ex-world juniors hockey player questions why 'rape kit' wasn't done after alleged sex assault

Complainant asked nearly her behaviour at domain jnr hockey sexual urge assault trial

E.M. Defends her account of sexual assault after world juniors during cross-examination

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Brown begins by asking E.M. About the lead-up to the 2022 statement from Hockey Canada, which was conducting an investigation, and her understanding of that.

The Crown objects, saying E.M. Can’t answer that question without talking about her conversations with her lawyer (which are covered by attorney-client privilege).

The jury is sent out.

Savard, Hart’s lawyer, has finished cross-examining the complainant.

Next up is Dan Brown, lawyer for Alex Formenton.

Brown says he’ll confine most of his questions to her interactions with Formenton.

Formenton is alleged to have had vaginal sex with the complainant without her consent inside the bathroom of the Delta hotel room.

Savard questions E.M. On why nurses would have offered her a test that was too late to perform.

The Crown interjects, saying: “I don’t know how this witness can possibly answer what the nurses would or would not have offered.”

The judge agrees and Savard takes withdraws the question.

Savard suggests E.M. Refused the urine toxicology test because it would show “a regular Saturday night of drinking.”

“No, I declined because it would not have shown anything,” E.M. Says. €œI would have happily” taken the test if it could possibly show drugs in her system.

After E.M. Went to the police, she was told she could go to the hospital and undergo testing through a sexual assault evidence kit, commonly known as a “rape kit.”

E.M. Told nurses that because of her symptoms (headache, nausea and inability to vomit), she thought she had been “roofied.” (A term previously brought up in court that refers to consuming a drink spiked with a drug).

While in hospital, E.M. Provided urine and blood samples for a number of tests, but nurses told her a urine toxicology test would not show any signs of “roofies” because more than 72 hours had passed from the time she might have ingested them.

So E.M. Declined to have that test done, a decision nurses documented.

In resuming cross-examination after the lunch break, Savard asks E.M. About a player in the hotel room who was speaking French.

E.M. Says she remembers one of the men speaking French and she was able to identify him in the photos that police showed to her.

E.M. Says she spoke French back to him but doesn’t remember what they said.

Savard also asks E.M. If she was the one who leaked the lawsuit statement of claim to the media.

“No, definitely not. My understanding was that it would be private, that I could move on.”

After the media report about the lawsuit and Hockey Canada settlement, London police reopened their investigation.

After the tense exchanges between Savard and E.M. Before the break, I spoke to Toronto defence lawyer Jacob Jesin, who is keeping an eye on this case.

Speaking generally, Jesin said being cross-examined for multiple days in a row by different defence teams can take a toll on a witness’s stamina and lead to them making mistakes.

He also said it isn’t uncommon for complainants to feel under attack by any personal line of questioning. Still, he says, when he prepares witnesses, he tries to stress the importance of staying calm.

“I think any reasonable person would start to feel that sort of defensiveness coming up. And that can be detrimental. It's a real struggle, and that's really what anybody in her position really needs to focus on, is ensuring that they sort of keep those emotions in check, make sure they're continuing to be respectful of the court,” Jesin said.

“You have to be careful that you may think that you're, as a witness, scoring points with a snarky remark or pushing back against the lawyer,” he said. €œThat can come across really poorly to a jury or a judge looking at it objectively from the side of the room.”

We’re now breaking for lunch.

Proceedings are expected to resume around 2:15 p.m. ET.

After a few tense exchanges between Savard and E.M., Justice Maria Carroccia reads out an explanation of how jurors can use the statement of claim, which is filed at the beginning of a lawsuit.

The lawsuit E.M. Filed (and which was settled confidentially) was against Hockey Canada, the Canadian Hockey League and eight unnamed men.

The jury is told they can’t use the allegations in the statement of claim as evidence of guilt or wrongdoing.

The exchange between Savard and E.M. Becomes increasingly terse.

Savard is a formidable lawyer and E.M. Is showing visible annoyance under cross-examination.

Savard had been pushing E.M. For proof from the 2018 statement that she told police the men saw her crying and they spoke about it that night. Then, the lawyer asked E.M. To review part of the statement that alludes to crying in the bathroom and that says she told the detective she could hear the men say, "She's crying."

E.M. Says, “Thank for for finding that,” suggesting the passage supports her testimony.

Savard responds: “Ma’am I appreciate you are trying very hard to advocate for your position,” but again asks her to answer the specific questions put to her.

Savard is challenging her on each and every detail on her account in her earlier statements.

E.M. Pushes back on Savard’s suggestions that she never mentioned the men talking about her crying.

Throughout her statement to detectives in 2018, E.M. Talks about crying, and so the men telling her to stay would have seen her tears, she says.

She tells court it was really difficult for her in the days afterwards to explain what had happened to her.

“The reason you invented this story of the men saying, ‘Don’t let her leave, she’s crying’ … You want it to be more likely that the jury will see this as worse than it was,” Savard says.

“I am saying my truth, my story,” E.M. Says. €œI”m not trying to make it seem any worse than it had. I think [the jury] could read it in the [police] statement and still see it was bad … I have no reason to come up with a worse version.”

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