Content warning: This story includes allegations of sexual assault.
LONDON, Ont. — The complainant in the sexual assault trial for five former NHLers was challenged on Friday about her memory of who bought the drinks she consumed at a bar before the alleged incident of June 2018.
The woman, known as “E.M.” in court documents because of a publication ban on naming her, answered from elsewhere in the courthouse via CCTV to continued questioning by lawyer Daniel Brown, who represents Alex Formenton.
In a statement given to police in 2018 and a Hockey Canada investigation in 2022, E.M. said that she bought herself two shots while at Jack’s on June 18-19, 2018, but didn’t buy drinks the rest of the night.
Brown took her through surveillance videos that appear to show her paying for more drinks after the initial two shots she and a friend purchased.
“You said you got it wrong in 2022 because you hadn’t looked at your 2018 statement,” Brown said to E.M. “Why did you say that in 2018?”
“I don’t recall saying I didn’t buy my own drinks,” E.M. responded. “I said for the large portion of the night I wasn’t paying for drinks.”
Brown questioned E.M. as to why she didn’t mention a friend of hers from high school was a bouncer at Jack’s. The two appear in surveillance video to be do a “side-hug” and have a conversation at the back of the bar near ATMs.
Brown suggested E.M. didn’t mention the bouncer friend because he could’ve hurt her story about others buying her drinks. Brown also suggested the bouncer could’ve helped her if she felt to be in trouble at any point in the night with the group of men.
“I try to handle my own issues,” she says. “The thought didn’t occur to me.”
The friendship with the bouncer was not mentioned in her previous statements for other reasons as well, E.M. said.
“He would have no idea about what happened later on in the room,” she said.
“I was really embarrassed about what happened to me and I didn’t want anyone I knew to know what had happened to me.”
Brown pressed E.M. several times on her answers, repeatedly asking her to answer only the question that was asked and not explain further, a common request among the defence. Brown also followed up answers such as “I don’t know” or “I don’t recall” with a similar line of questioning.
Assistant Crown attorney Meaghan Cunningham stood a number of times to this tactic, responding with the equivalent of an objection that E.M. had already answered the question.
“You’re trying to make me second guess everything I’m saying,” E.M. responded to Brown.
“I am giving you my truth. You push me for an answer. I say, ‘I don’t know,’ you try to discredit me. I say something else, you try to discredit me.”
Brown follows that up later with, “That was your truth, but not the truth, right?”
E.M. said she was trying her best to help police during the 2018 interview about what she remembered of conversations with Michael McLeod, Brett Howden and others present that night.
“I don’t recall any conversations. I was really drunk,” said E.M., who was cross-examined by three lawyers this week. “Just not your problem, right? It’s these boys’ problem?” Brown said, to which Cunningham stood to say the comment was “not appropriate.”
Justice Maria Carroccia agreed and Brown apologized for the comment.
McLeod, 27, has been charged with two counts of sexual assault, including one relating to aiding in the offence. Dillon Dube, 26, Cal Foote, 26, Formenton, 25, and Hart, 26, have each been charged with one count of sexual assault. All have pleaded not guilty to their charges.
For the fifth consecutive day, an increased number of protestors greeted the players on the steps before they entered the courthouse through the front doors. CBC reported that Brown was heckled on his way into the court.
Brown’s cross-examination is expected to continue Monday at the Ontario Superior Court of Justice. Lawyers for Dube and Foote are also expected to cross-examine E.M. next week.
