Ex-teammate's testimony, police interviews mark consequential week at Hockey Canada sex assault trial

coronate grills ex-player howard carter moss hart on his remembering at sexual assault trial

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Court has wrapped, so we’re ending our live updates for now. We’ll be back Monday morning with more coverage.

Be sure to scroll down to get caught up on how proceedings unfolded today.

You can also find all of our previous live pages from the trial here.

As always, we know testimony throughout the trial has included details that can be difficult to read. There are support services available.

If you’re in immediate danger or fear for your safety or that of others around you, please call 911. For support in your area, you can look for crisis lines and local services via the Ending Violence Association of Canada database.

Earlier today, Cunningham asked Hart to mark up a picture of the interior of Delta hotel Room 209 to get a better sense of Cal Foote’s positioning when he was doing the splits over E.M.

Hart’s drawings are a little crude, but he says the longer lines represent Foote’s limbs stretching across the sheet that was on the ground. A smaller stick figure, E.M. Can be seen in Hart’s sketch, lying on the ground.

Foote’s face was toward the windows, Hart explained. His left foot was stretched toward Hart, his right foot between the beds.

Hart also put the initials of players he remembers being there at the time in the spots he believed them to be in. There is an arrow next to Dillon Dubé’s initials (D.D.) as he was slightly out of frame.

Hart testified yesterday Foote was fully clothed when he did the splits and E.M. Had laughed at the “party trick.”

Today, the Crown suggested Foote was naked, as it contended in its opening statement, and he was “teabagging” E.M.

Legal experts watching this trial say Crown lawyer Meaghan Cunningham had a big challenge in cross-examinating Hart today.

“It is a tall order to discredit a defendant, especially one who has been consistently denying the allegations,” says Lydia Riva, a criminal defence lawyer from Whitby, Ont., who’s not involved in this case.

“You're not really expecting in a case like this for the Crown to break down the defendant so that he basically confesses his involvement.”

Cunningham cross-examined Hart on issues of his memory, including whether it has been impacted by his level of intoxication.

“She's put to him at times that he's even feigning memory to protect other people in the room. But ultimately, she's trying to discredit him so that the trial judge ultimately will disbelieve his evidence,” Riva suggests.

But if Justice Maria Carroccia, after listening to Hart’s evidence, does not believe it, she still has to consider if it raises a reasonable doubt.

Even if she doesn’t believe what he’s saying, Carroccia has to consider if the Crown has proven its case, again beyond a reasonable doubt, and whether the complainant’s evidence is enough to prove the case, Riva says.

If the Crown’s case is weak, it’s difficult to rehabilitate it just from their cross-examination of the defendant, she adds.

“This is not a credibility contest between the defendants and the complainant.”

Riva says proving a case beyond a reasonable doubt “is a high burden … the trial judge is going to have to look at the evidence of the complainant and determine whether or not it's enough.”

The Crown, Meaghan Cunningham, has now finished her cross-examination of Hart.

His lawyer, Megan Savard, has three clarifying questions for him that are really minor. Then, Justice Maria Carroccia asks him to again gesture with his hands about Foote’s splits position. (Carroccia says she was taking a note while Hart made the gesture the first time, and she didn’t catch it).

That concludes Hart’s time in the witness box.

Next up to possibly call evidence is Alex Formenton’s legal team, but his lawyers aren’t required to.

Formenton’s team will take the weekend to decide whether to proceed with calling any evidence.

As a result, court is over for the day.

WARNING: This post contains graphic details.

Cunningham suggested to Hart that he asked his teammates in the group chat about any possible charges because he was concerned about being charged with sexual assault, and Hart agrees.

“I suggest that’s because you had concerns about whether E.M. Was actually consenting to everything that happened in that room?” Cunningham says.

Hart, however, responds, “No.”

She presses him about consent.

“She’s naked in a room with 10 or so young men. The only specific things you can recall her saying are, ‘Somebody come f–ck me’ and ‘If no one will f–ck me, I’m just going to leave.’ You think that means she will perform any sexual act with any guy in the room…. You put your penis in her mouth,” Cunningham says.

Hart says he was responding to E.M.’s “offer.”

“You haven’t actually heard her offer oral sex,” Cunningham says. €œPutting your penis in her mouth is not f–ing her, is it?”

“No,” Hart concedes, agreeing that E.M. Never “offered” oral sex.

Cunningham reminds Hart he was incredibly drunk. She asks him if he conflated other people’s stories from the group chat with his own, but he says no.

Cunningham asks about the text sent by Dillon Dubé in which Dubé says, “Let’s not make her sound too crazy,” and about Hart’s text asking the team, “What should I say to Bully?” (Shawn Bullock, a Hockey Canada executive.)

Cunningham asks Hart why he would need to ask what to say to Bullock if he were telling the complete truth.

Hart says Hockey Canada took partying and having “girls” in the hotel room very seriously. He says he knew two players in a previous year had been suspended by Hockey Canada for two years for having a girl in their hotel room.

“Hockey Canada took those things really seriously,” Hart says.

Cunningham points out that Hart was prepared to lie to Bullock so he wouldn’t get in trouble, but Hart doesn’t agree.

Just back from the lunch break, Hart’s back in the witness box and Cunningham is asking him about the June 26, 2018, group chat.

He testified yesterday he didn’t see it until later in the day, after 117 texts had been sent, because he was at a hockey training camp.

“Given the big picture, would you agree that the group chat is of all the people in Room 209 essentially getting their story straight? What happens is everyone trying to get on the same page about what they’re going to say happened in that room?” Cunningham suggests to Hart, who agrees.

Cunningham takes Hart through some of the texts, in which the players are talking about only being in the room to eat ordered food, and that the woman showed up and gave some guys oral sex, and people “left before things got too crazy” or “got out of hand.”

Cunningham points out Hart doesn’t remember any food and has testified things never “got too crazy.”

The Crown lawyer also suggests there would be no reason for guys to be reminding each other to tell investigators about getting consent if everyone had actually gotten consent.

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.

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