The London courthouse in London, Ont., is shown on April 30.Nicole Osborne/The Canadian Press
Why didn’t the complainant in the criminal trial of five former members of Canada’s 2018 world junior hockey team tell her best friend – with whom she had been texting hours after the alleged incident – that she had been sexually assaulted?
This question was at the heart of a lengthy stretch of cross-examination by defence lawyer Lisa Carnelos, who is representing one of the accused, Dillon Dubé, during the trial in London, Ont.
Court has previously heard that the complainant, who is known publicly as E.M., phoned her best friend from the lobby of London’s Delta Armouries hotel on June 19, 2018, just minutes after leaving room 209, where the assault is alleged to have taken place.
Monday marked E.M.’s seventh day in the witness box and sixth under cross-examination.
E.M. has testified that she was crying uncontrollably and not really making sense during the conversation with her friend.
At 5:02 a.m., shortly after they hung up, the friend texted E.M.: “Everything’s gonna be ok [heart emoji] Get home safe, get some rest & yeah if u wanna talk about it, text me in the morning,” according to a transcript of their text exchanges entered into evidence.
At 3:36 p.m., the friend checked in again.
E.M. replied: “Hey ya sorry, I’m ok girl. I think I was just being a little over dramatic earlier, but I’m good.”
“Ok glad ur okay [heart emoji] ahah yeah you scared me this morning, I just wanted to make sure!” the friend wrote back.
E.M. went on to express guilt about cheating on her boyfriend and said she was mad at herself. “I just felt dirty and used after, the guy was such a jerk and he had all his friends in the room and it was just a bad situation.”
Reproduction of text messages the woman known publicly as E.M. exchanged with a friend after E.M. was allegedly sexually assaulted by five former members of Canada's world junior hockey team in the early hours of June 19, 2018. E.M.’s messages are aligned left, the friend’s are on a dark background, aligned right. The messages were presented on Monday at the players' criminal trial in London, Ont., where the alleged offence occurred following a night of drinking and dancing after a Hockey Canada gala celebrating the championship team. Redactions by The Globe and Mail and the court.Ontario Superior Court of Justice
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(Court has heard that E.M. had consensual sex with Michael McLeod after they met at a London bar. When they finished, she alleges he texted his teammates to come to the room for sexual activity without her knowledge. Defence lawyers have asserted that it was E.M. who asked Mr. McLeod to invite his friends.)
Ms. Carnelos pointed out that nothing in the messages between E.M. and her friend discussed a sexual assault.
“I’m going to suggest to you that if you had – in any way, shape or form – felt that you had been sexually violated or assaulted that night, you would have said to your best friend, the one person in the whole wide world that you could discuss it with -," Ms. Carnelos said before Crown attorney Meaghan Cunningham objected.
The jury was briefly sent out of the room for legal arguments. Upon their return, Ms. Carnelos asked E.M. to review the text conversation transcript again.
“You certainly didn’t tell her during that text exchange that you’ve been sexually assaulted, right?” Ms. Carnelos asked.
“No, I didn’t use those exact words, but again I wasn’t trying to think about it,” E.M. responded.
E.M., who is now 27, told the court that she wasn’t yet ready to explain it all to her best friend. She said that, on June 19, she was talking to her mom about what had happened.
Three days after the alleged assault, E.M. told her best friend by text that she had been to the police station because of the “situation that happened Monday night.” She said she worried she might have been drugged and that the men were “high up hockey players.” (E.M. did not undergo a toxicology screening, court heard.)
E.M. wrote she was “trying to down play it and just forget it” but that she was pretty messed up.
Mr. McLeod, Mr. Dubé, Carter Hart, Alex Formenton and Cal Foote are each accused of sexually assaulting E.M. following a night of drinking and dancing at a local bar. Mr. McLeod faces a second charge of being a party to sexual assault.
Each has pleaded not guilty.
Earlier in the day Monday, defence lawyer Daniel Brown, who is representing Mr. Formenton, finished his cross-examination.
He questioned E.M. on testimony she gave the court about being followed to the hotel room’s bathroom by Mr. Formenton, where she alleges he then bent her over the sink and vaginally penetrated her.
Mr. Brown asserted that E.M. “was pulling” his client into the bathroom to have sex — and that a witness who was in the hotel room that night will provide this account.
“I don’t recall it happening like that, but I guess it could be possible,” she said.
Also under cross-examination, E.M. clarified that she was bent over the sink but that Mr. Formenton didn’t push her there. Mr. Brown also challenged E.M. on her earlier statements that there was no conversation before the sexual activity.
In Mr. Brown’s telling, E.M. and Mr. Formenton discussed the use of a condom. He alleged that E.M. told Mr. Formenton it was unnecessary because she was on birth control. E.M. confirmed in court that she had been on birth control at the time.
Mr. Brown also alleged that E.M. offered to fondle Mr. Formenton’s genitals to arouse him prior to intercourse. E.M. replied that she doesn’t remember doing that.
In E.M.’s version of events, just prior to entering the bathroom, the players were shouting at each other, “Someone have sex with this girl.”
Mr. Brown disagreed with this account. He said the men – whom all of the defence lawyers have typically referred to as “boys” – didn’t want to have sex with E.M. Mr. Brown alleged she found that upsetting, and noted that she had told a London police officer in 2018 that she was getting frustrated by the players’ inaction.
E.M. explained: “The feeling of frustration was because they kept talking about things that they wanted to see and wanted to do. And when nothing was happening, and I would try to go … they just wouldn’t let me leave.” She said: “I felt like I couldn’t get out of there unless they got what they wanted.”
Mr. Brown suggested E.M. was asking the players if they were going to have sex with her or play golf. He asked E.M., “Do you remember saying that?”
“No, I don’t remember saying that at all,” responded E.M.
Said Mr. Brown: “I suggest that essentially you were egging on the players to have sex with you.”
E.M. replied that she’s aware defence counsel has suggested she was saying things like this, but she has no memory of doing so. E.M. has testified that it was possible.
In describing the alleged assault, E.M. said she went into “autopilot,” doing and saying whatever she thought the players wanted because she felt she had no choice.
Ms. Carnelos asserted that E.M. was “taunting” the players in the hotel room, prompting one of the men to give her a “playful” slap on her buttocks. She said E.M. asked the man if he was just going to play around or if he was going to have sex with her.
“No, I don’t agree with that,” E.M said.