Crown lays out 'path to conviction' for accused ex-world junior players at Hockey Canada sex assault trial

What it’s the likes of face of the earth a margaret court chalk out artist at a high-profile trial

E.M.’s credibility challenged in Hockey Canada sex assault trial closing arguments

Testimony wraps up at world junior hockey sexual assault trial

WARNING: This post contains graphic details.

Donkers’s arguments now focus on Formenton, who court has heard had sex with E.M. In the bathroom.

“She went into the bathroom, he followed her, he bent her over, put his penis in her vagina, removed the condom and ejaculated into her mouth,” Donkers says. €œShe said she wasn’t thinking of it as a choice. It felt to her like a continuation of what was already going on.”

There is a long exchange between the judge and Donkers about how to take the different accounts of what happened right before they went into the bathroom and what they might mean for consent.

Formenton told police in 2018 he didn’t want to have sex in front of the other guys, so when she says something like, “‘Is anyone going to bang me?’” he says he won’t do it in front of the other guys, and she walked to the bathroom and he followed her.

“Mr. Formenton says what happened was consensual. Even if he sincerely believes that, doesn’t make it true,” Donkers says.

Donkers admits there is some ambiguity, but reminds the judge that Howden testified Formenton asked him something like, “‘Am I OK to do this?’” which shows that he was not quite sure that what was about to happen was consensual.

There were also no words exchanged between the two in the bathroom to confirm consent, Donkers says.

Brett Howden (another then teammate of the five men on trial) testified that when he heard E.M. Being spanked, it made him so uncomfortable that it made him leave the room, Donkers reminds the judge.

It happened while she was performing oral sex on the bed on McLeod, court previously heard, and others testified or gave statements about the buttocks slapping that Dubé was doing.

E.M. Could not have consented to that slap (or multiple slaps) because she didn’t know it was coming, Donkers argues.

“You cannot provide consent in a broad sense to any person for any act. There must be communicated consent to the specific sexual act. Mr. Dubé took absolutely zero steps to make sure that it would be reasonable in the circumstances to ensure that she was consenting to the butt slapping at the time that he did it.”

Court previously heard Dubé also received oral sex from E.M., told police it was right after Hart received oral sex, and that Dubé thought “I might as well” and pulled his pants down.

“It is incumbent on him in these circumstances to do more, and he did not. As such, Mr. Dubé is also guilty of the sexual assault in relation to the oral sex,” Donkers argues.

Donkers is now speaking about the case against Dillon Dubé.

She says he gave a voluntary statement to London police in 2018 and mentioned the oral sex he received, but left out the fact he slapped E.M.’s buttocks. He knew he could “try to portray” the oral sex as consensual, but also knew the buttocks slap “crossed the line,” Donkers contends.

“He knows that goes beyond the bounds of what you could reasonably portray as consensual in the circumstances,” and the omission should be seen as a fabrication, she says.

Dubé also called his teammates and told them to “let him tell his own story,” and the teammates left out the butt slapping in their statements, Donkers reminds the judge.

“It’s consciousness of guilt,” she says.

Dubé was stressed when he found out Hockey Canada was investigating, as were the other men, Donkers says.

The other players may have been stressed because they didn’t understand how consent works, but Dubé was stressed because he also “knew instinctively that he had done something wrong,” and that’s why he told his teammates to leave that out of their statements.

WARNING: This post contains graphic details.

After the break, Donkers continues her arguments by saying: “Mr. McLeod is guilty of sexual assault.”

He’s not reliable or credible because he lied to the police about inviting people to Room 209 at the Delta hotel, and “a willingness to lie to police about any significant issue calls into question [his] credibility” about other things, Donkers says.

McLeod’s charges relate to two instances of oral sex and vaginal intercourse in the shower at the end of the night.

“He either didn’t turn his mind to — recklessness — or didn’t care — wilful blindness — whether E.M. Was actually consenting to oral sex with him before putting his penis in her face and in her mouth,” Donkers says.

Cunningham will talk about the “party to the offence” charge later, Donkers says.

Donkers notes that Hart said “‘I’m in’” almost immediately after getting the text about the threesome from McLeod, without knowing anything about the woman involved.

Hart also didn’t take any steps to assess the situation when he arrived or even ask the woman her name, the Crown contends.

“He did not have a conversation with her either to ascertain what brought her there, what she was interested in, what her limits were, what contraception should be potentially used,” she says.

“Instead, he was presented with the opportunity that he was looking for all night — to have sexual activity with a woman — and in his excited state, rather than take the steps that would be reasonable in the circumstances, Mr. Hart was reckless as to whether E.M. Was consenting to the sexual act of oral sex with him, specifically. As a result, Mr. Hart is guilty in her submission of sexual assault.”

We’re now on a short break.

Donkers begins by talking about Hart’s credibility and reliability.

He acknowledged to the Crown under cross-examination that he didn’t actually see how Cal Foote got out of the splits, but he agreed with suggestions by Foote’s lawyer, Juliana Greenspan, about what he had seen.

“That suggests a carelessness with the truth. He didn’t see the thing that he agreed with Greenspan he had seen,” Donkers says. It shows a willingness to testify to something that he doesn’t know about to help his co-accused, she adds.

Donkers says there’s evidence and testimony to suggest Hart received oral sex twice from E.M., but he only testified about one instance of oral sex. She didn’t make a “voluntary choice” to perform oral sex and Hart didn’t take the reasonable steps to make sure she was consenting. She was “intoxicated … vulnerable … (and) did not want it.”

Hart said in the witness box that he asked E.M., “‘Can I have a blowie?’” (slang for blowjob), but no one else testified to that. Even if the judge finds that he did ask her, that’s not consent, Donkers argues.

“Hart had the power in that situation, and she had none.”

Cunningham is done presenting final arguments for now and the other assistant Crown in this case, Heather Donkers, has taken over addressing the court.

Donkers is taking the judge through the “credibility and reliability concerns” of each man’s case.

She says the recurring theme of the defence case is the men thought E.M. Was consenting through her words and actions, and that they thought interest in general sexual activity is consent to other specific acts.

The second “consent video,” in which E.M. Is naked and holding a towel over her torso, begins with McLeod saying, “‘Say it,’” Cunningham says.

E.M. Testified she didn’t remember the videos were recorded, but that when she watched them, it brought back a memory of McLeod “‘hounding’” her to say she had consented, and she said that to “‘get out of there,’” the lawyer reminds the judge.

He then says, “‘What else?’” and she says it was all consensual and that she was fine and enjoyed it.

McLeod was “directing” what E.M. Should say, Cunningham argues.

“If she’s begging for sex, wouldn’t she say something like that?”

Saying, “‘It was fine, I enjoyed it,’ doesn’t reflect E.M.’s supposed enthusiasm for what took place,” Cunningham says.

McLeod texted E.M. On June 20, 2018, and told her to call the police and tell them her mom’s report of sexual assault was a “mistake,” another example of him “directing” her what to say, the Crown lawyer adds.

Cunningham tells the judge that “at no time did anyone engage in a sincere conversation with E.M. About what she truly wanted to happen. At no point does anyone say, ‘Do you want to slow this down?’”

“Your Honour has heard from the men in the room that all of them thought her conduct was on some level bizarre, strange or outrageous, but no one asked her, ‘Are you feeling OK? Is this really what you want to be doing?’”

The videos (taken by McLeod) are not evidence of consent — they’re “token lip service box-checking” that is not a real step to ascertain consent.

“She is naked, on her knees, with men talking around her, Mr. Hart saying, ‘I’ll get Fabs, I’ll get Fabs,’ she’s wiping her eyes. That is not a reasonable step to ascertain valid consent.”

Court previously heard that when the first video was recorded, Hart was trying to get Dante Fabbro into the room to have sex with E.M.

Crown lawyer Meaghan Cunningham gets things started by saying the Crown has to prove each of the five men on trial knew E.M. Didn’t consent to sexual activity, or that they were wllfully blind or reckless in assessing her consent.

If the men had a mistaken belief that E.M. Consented, they "honestly” would have had to have believed she effectively said “‘yes’” through her words or actions.

The honest belief must be that the consent was voluntary, that the voluntary agreement was for specific acts that took place and that it was with the specific person with which the acts took place, Cunningham says.

Being mistaken about what consent is or means is not a defence, she contends.

“If they believe that consent can be given in advance, or that as long as she didn’t say ‘no’ she was consenting, or that consent does not need to be for specific acts, or a belief that consent to someone else is consent for them — none of them are consent in law.”

Reasonable steps must be taken to get consent, the law states, and “greater care” must be taken to get consent if the parties are strangers to one another, or if the complainant is drunk or vulnerable, Cunningham says.

“If a reasonable person would have taken more steps than the accused, then the defence fails.”

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