E.M. 'did not choose' to consent to sex acts with ex-Hockey Canada players, Crown argues at trial

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Testimony wraps up at world junior hockey sexual assault trial

Court has ended for the day, so we’re wrapping up our live updates.

Our team will be back with more coverage once proceedings resume tomorrow around 10 a.m. ET.

Scroll down to read about how the day unfolded.

You can also find all of our online coverage of the trial here any time.

As always, we know 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 Sexual Violence Association of Canada database.

Until tomorrow.

Cunningham tells the court she plans to move to a different area of her arguments, so the proceedings have ended for the day.

Juliana Greenspan, Cal Foote’s lawyer, tells the judge he has a family wedding this weekend and would like to attend Friday’s court session by Zoom.

That’s “highly unusual,” Cunningham says, but doesn’t object.

The judge allows Greenspan’s request.

McLeod’s “plan” is also apparent in some of the things he tells Newton, the London police investigator, because there were “moments of truth when the truth bleeds in” during his interview in 2018, Cunningham says.

That includes when he told the detective the players “made a rule, no videos,” and that they wanted to ensure no one looked bad and to “be smart about this,” she says.

He also told the detective he was “making sure [E.M.] was OK” and he was calming her down when she became upset, Cunningham tells the judge.

The context for “everything that takes place that night” is E.M. Agreed to go back to the hotel room with McLeod alone, and he “set her up” by inviting his teammates over “with the offer of sexual services from her, without her knowledge or consent,” Cunningham says.

“His teammates started showing up to the room and at least some of them were expecting that she would engage in sexual activity with them, even before they laid eyes on her or knew her name.”

That’s the "critical lens” through which the judge has to see the rest of the night, Cunningham says.

“This is how it all started…. E.M. Was not the one who started this. He was the one who told them she was there for their sexual pleasure. She didn’t know. That paints all of the witnesses in a very different light.”

Here’s Cunningham’s fifth and final reason the judge should reject the defence theory E.M. Was the one who wanted group sex on the night in question: the texts and other efforts McLeod made to invite other men into the room.

“He is telling 19 guys to come to his room for a three-way. It’s clear from this context that ‘three-way’ is short for group sexual activity,” Cunningham says. €œHe’s sending it to 19 people. He’s not vetting them.” When multiple men arrive, he doesn’t send them away, she adds.

McLeod texted the whole room to go to his room, he called Hart, and he went to get Katchouk from the hallway and knocked on Raddysh’s door, asking them to go to his room for sexual activity with E.M., Cunningham reminds the judge.

McLeod was basically trying to “drum up business,” she argues.

Cunningham also asks the judge to remember McLeod’s first text: “Who wants to be in a 3 way quick.”

“He’s not saying, ‘If you’re interested in a three-way, feel free to swing by whenever.’ He is communicating that there is some urgency to this. It’s a time-limited offer,” Cunningham says.

“He’s communicating that the window of opportunity for other players to engage in sexual activity with E.M. May not stay open very long.”

That’s because McLeod knew E.M. May not have stayed since their sexual encounter was over, and she had not asked him to get anyone else into the room, Cunningham says.

“He knows she doesn’t even know she has made the offer to his friends.”

McLeod’s actions are “not the actions of someone who is trying to facilitate a stranger’s wishes,” Cunningham says.

“These are the actions of a man who is personally invested in bringing men to engage in sex with E.M. It is his plan, his idea, just as E.M. Said.”

Cunningham raises the question that if E.M. Was the one who asked McLeod to get his teammates to the hotel room for group sex, why did she remain on the bed under the covers, not saying anything, when the first two men arrived?

“These things are not reconcilable. Someone is lying.”

Raddysh and Katchouk are the only two men who didn’t say E.M. Was “chirping” the men and “demanding sex” from them, Cunningham says.

“It defies logic and common sense that if she was actually the instigator, if she was the one who wanted to engage in sexual activity with anyone else other than Mr. McLeod, that she would not engage with Raddysh and Katchouk. It makes absolutely no sense.”

Raddysh and Katchouk were the only men there that night who weren’t part of the group chat, and “their description is completely at odds with the testimony of everyone who was in the group chat,” she adds.

Katchouk and Raddysh have no reason to lie, Cunningham says, and their testimony about E.M.’s demeanour was consistent — that she did nothing to communicate she was interested in sexual activity with anyone but McLeod.

Cunningham brings up Raddysh’s testimony, including that E.M. Remained under the bed covers the whole time.

Katchouk said E.M. Had the covers pulled all the way up and Raddysh said the covers went all the way up to her neck area.

The two men said they didn’t interact with E.M. At all, and except for her asking Katchouk for a bite of pizza, they didn’t talk, Cunningham reminds the court.

In cross-examination, Katchouk said he remembered E.M. Being flirty, but the only interaction he recalled is her asking for a piece of pizza.

“What on Earth could that possibly mean? How do you ask for a bite of pizza flirtatiously?” Cunningham asks.

E.M. Didn’t offer or ask for any sexual contact from Raddysh or Katchouk, Cunningham says.

During the time Katchouk was in the room, McLeod asked her if he wanted a “gummer,” Cunningham reminds the judge. E.M. €œdoesn’t say anything,” Cunningham says.

“These are not the actions of someone who is eager to engage in sexual activity with Mr. McLeod’s teammates,” Cunningham says.

If she had wanted them to be there for sexual activity, the Crown adds, wouldn’t she have said something to them or shown some interest?

After a short break from the proceedings, Cunningham proceeds to give her fourth reason to reject the “speculative defence theory” it was E.M. Who asked for group sex that night.

The first two men in the room after McLeod were Raddysh and Katchouk, and they testified about E.M.’s demeanour while they were in the room for a short time.

The two men were there between 2:30 a.m. And 2:35 a.m. On June 19, 2018. They both testified E.M. Was in the bed while they were there, and Cunningham says that is what she believes happened.

E.M. Testified she was in the bathroom when Raddysh and Katchouk arrive, but Cunningham says she thinks that’s a memory gap in E.M.’s telling. It makes more sense Raddysh and Katchouk were there while she was on the bed and then left, and then she went into the bathroom, Cunningham says.

When E.M. Left the bathroom, there were other men in the room and she was scared. Cunningham says it’s likely E.M. Has conflated these two groups of men.

Repeatedly, E.M. Testified she was surprised and shocked when other men entered Delta hotel Room 209 while she was naked on the bed after having consensual sex with McLeod, Cunningham says.

She did so under cross-examination and while being questioned by the Crown.

“She has never wavered on the point of having a distinct memory of surprise when people walked in,” Cunningham says.

That’s the third reason the judge should reject the notion E.M. Did not ask for group sex or for more men to be there, the Crown contends.

Cunningham argues the second reason the judge should reject the notion it was E.M. Who asked for group sex is spelled out in the text messages between E.M. And McLeod from June 20, 2018.

During a text exchange, E.M. Says she was fine going home with him, but “it was everyone else after that I wasn’t expecting. I just felt like I was being made fun of and taken advantage of.”

McLeod responds with, “‘I understand that you are embarrassed about what happened,’” Cunningham reminds the judge, putting the texts up on the screen.

But McLeod doesn’t say, “‘What are you talking about — you asked me to invite them,’” and he doesn’t challenge that notion of her not expecting the other men in any other way, Cunningham says. €œThat’s an adoption by silence or by implicit admission,” she adds.

If E.M. Was in fact OK with him inviting his friends over to have sex with her, she wouldn’t have said she was not expecting it in that text, Cunningham says.

Cunningham plays the video of McLeod speaking to the detective in 2018 (it was played to the court earlier in this trial during Newton’s time in the witness box). In it, McLeod says he doesn’t know how the men got to his hotel room and maybe they were going there for pizza.

The audio doesn’t quite work, so Cunnigham reconstructs McLeod’s version, making her voice low and mocking him, saying, “‘Duhh, I dunno why they were there, maybe pizza?’”

She says there is “no version of events” in which it could possibly be true he didn’t know people were there for sexual activity, because he’s the one who invited the men to the room for sexual activity.

Cunningham tells the judge she can and should use the lies that McLeod told as not only evidence of his lack of credibility and reliability, but also as “circumstantial evidence of guilt.”

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