Carter Hart says nothing 'disrespectful' happened to E.M. as Crown questions memory of night with ex-teammates

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Court is now on recess until about 2:15 p.m. ET. We’ll pick up where we left off after the break.

Cunningham plays the first video, recorded at 3:25 a.m.

She reminds Hart that at 3:27 a.m., he texted teammate Dante Fabbro, telling him to get to Delta hotel Room 209.

Off camera, Cunningham says, you can hear Hart saying, “I’ll get Fabs, I’ll get Fabs,” which is Fabbro’s nickname.

Cunningham points out that Hart wouldn’t have been trying to get his friend into the room if the situation was as awkward as Hart previously described.

“I suggest you wouldn’t be trying to get him in the room unless you felt it was fun and exciting,” she says. €œThe guys in the room were essentially acting like they couldn’t believe their luck: Here was a naked woman performing sex acts on anyone who wanted it. It wasn’t shock and horror.”

Hart responds: “I thought it was pretty cool.”

Cunningham points out the men were not feeling awkward or uncomfortable — they were excited and it was noisy.

Court heard earlier in the trial that the men were feeling awkward or didn’t really want to be there.

Cunningham asks Hart about the “no phones, no videos" rule. (Court previously heard that world junior players weren’t allowed to use their phones at night.)

In police video played before the court, McLeod told the detective in 2018 that he made that no-technology rule. Hart says he doesn’t remember anything about that.

We’ve already learned in this trial that McLeod recorded two videos on the night in question — one at 3: 25 a.m. And another one about an hour later — in which E.M. Says she consents to the events of the night (after they had already happened).

Cunningham presses Hart about the videos, saying that logically speaking, a person would only record a “consent video” if there was “some possibility" that the person would later say they were not consenting.

Hart disagrees.

“Lots of professional athletes have done those things before,” he says of getting consent videos.

Cunningham presses Hart about his memory issues.

By her calculation, he doesn’t remember about half of his time in the hotel room.

Despite that, he won’t agree with her that something “disrespectful” happened in the room, and says he just doesn’t remember.

Yesterday, Hart testified to the defence that if anything disrespectful or degrading happened, he would have left the room or said something.

Today, he says he would have noticed.

“If something happened that she didn’t want, I would have left or other guys would have put a stop to it.”

Cunningham then says, “But we’re talking about something you don’t remember…. You have a complete gap in your memory. Isn’t it possible you saw something that to your mind wasn’t OK and you did say something?”

“No,” Hart replies.

Hart says he doesn’t remember seeing anyone smack or slap E.M. On the buttocks.

“You don’t remember what happened immediately before you left. Isn’t it possible that you saw hard slapping and that’s what made you leave? Isn’t it possible you left because things were getting out of hand?” Cunningham asks.

“No,” Hart replies emphatically.

The Crown has asked Hart to draw another picture in the hotel room — of Foote doing the splits.

Cunningham wants the photo to indicate where Hart was, where Foote was and where E.M. Was during the splits act.

“I’m just trying to figure out how to draw Cal,” Hart says.

People in the courtroom haven’t seen that photo yet.

There’s a lengthy discussion between Hart and Cunningham about where in the photo Foote’s feet and crotch were in relation to E.M.

Hart says for the first time that Foote did the “partial splits.”

WARNING: This post contains graphic details.

The defence has suggested Foote, whose “party trick” was doing the splits at a moment’s notice and being able to pop up quickly, was fully clothed when he did the splits. E.M. Has testified Foote was naked when he did the splits over her face.

“Do you know what teabagging it?” Cunningham asks.

“It’s when a guy sort of squats or lowers himself over someone’s face and dangles testicles in their face or mouth,” Cunningham says. €œThat’s what’s being suggested, right?”

Hart disagrees.

Getting Foote to do the splits wasn’t the point, because the guys see that all the time, but what they don’t see all the time is him doing the splits over a naked woman, Cunningham suggests to Hart, who disagrees.

“From your perspective, there's nothing particularly exciting about seeing a fully clothed guy who everyone already knows can do the splits, do the splits, right?” she asks.

“What would be more exciting would be to see a guy with no pants on do the splits right over E.M.’s face, essentially teabagging her. Don't you agree? That would be more exciting?” Cunningham presses.

“That’s pretty weird,” Hart says.

“Well, the whole night was weird, wasn’t it?” Cunningham says. Hart agrees.

Cunningham suggests Foote “took his pants off and did the splits over her face because that’s what guys wanted him to do.”

Hart says that’s not true.

WARNING: This post contains graphic details.

Crown lawyer Cunningham asks Hart about Foote doing the splits in Room 209.

According to Hart, Cunningham says in reiterating what he’s already said in testimony, E.M. Was in the room specifically for sexual activity with the men.

If that were true, she suggests to Hart, it would make sense encouraging Foote to do the splits would have had to do with something sexual with her — not that he was just randomly doing the splits.

“Guys are trying to come up with some things that they can do with the naked girl in the room that doesn’t involve having sex with her,” Cunningham suggests, based on Hart’s claims.

“I’m not sure,” Hart says.

Cunningham asks Hart about the interaction between Formenton and E.M.

Hart’s recollection is they walked to the bathroom together, with her in front and Formenton following her while the two were holding hands. (Hart also said this under defence questioning).

The Crown says that even Formenton didn’t talk about holding hands in his police statement.

But Hart says it “sticks out to me. They were holding hands going to the bathroom.”

He did not hear any sounds coming from the bathroom, except in the end when he heard the shower.

“And you’ve told us no one discussed anything until the June 26 [2018] chat, so you must never have learned if any sexual acts happened until the charges were laid?”

Cunningham asks.

Hart responds he might have learned about the sex “during the night,” but he doesn’t remember.

Cunningham then asks Hart about the guys egging each other on and saying “‘you do it,’” as Hart mentioned about having sex with E.M.

Hart concedes he might have been one of the guys egging others on.

“You understood that if no one presents themselves, no one steps up as tribute, she would leave,” Cunningham says, in reference to what was said in The Hunger Games.

“Yes,” Hart answers.

“You try to get Dante Fabbro to show up — you were doing that to give her a reason to stay. You’re going out of your way to give her a reason to stay,” Cunningham suggests.

She presses Hart about why he cared if she stayed or not. She says E.M. Was a stranger and he was not personally invested in her or whether anyone had sex with her.

“Why were you taking steps to get someone else in the room,” Cunningham asks him.

“I don’t know why,” he answers.

Hart says that his next memory after the oral sex from E.M. Is her being propped up against the bed, getting annoyed that no one is having sex with her, and she threatened to leave.

He says it sticks out to him because of how “forward” E.M. Was being.

“I’d never experienced a girl act like that … forward and sexually demanding.”

But Cunningham suggests that at that point in the night, if what Hart said was true, it shouldn’t have been that shocking, given what Hart said about what apparently had already happened in the room.

Hart says he doesn’t remember E.M. Putting her clothes on and taking them off or trying to leave, but it’s possible that happened.

E.M. Testified, as did other witnesses, that she tried to leave several times, but men redirected her in the room and had her stay.

Hart says he doesn’t remember anything about what the men were doing.

“You’re sure how she seemed but not how any of the guys seemed?” Cunningham asks Hart.

“Yes,” he answers.

He texted teammate Dante Fabbro to come to the room, Cunningham says, “to keep the party going.”

Hart says that’s possible.

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