E.M. was 'in over her head' and resisted sex acts in 'passive ways,' Crown argues at ex-world juniors trial

Cunningham urges the judge to treat the suggestions that defence lawyers put to E.M. under cross-examination as evidence.

E.M. responded with “it’s possible” to some of their suggestions while saying she has large memory gaps and didn’t remember saying some of the things put to her.

One example of that is the lawyers suggesting to E.M. she could have asked McLeod to bring his teammates into the room, Cunningham says.

Another example are what lawyers suggested she said to the men in the room, including calling them “pussies” for not having sex with her.

“I urge you to be very cautious. It doesn’t line up to any evidence…. She said ‘that’s not a word that I would use. I don’t think that would come out of my mouth,’” Cunningham says.

“Just because someone is drunk, doesn’t open an entire world of possibilities that has no basis in the person that they are.”

In reporting on this trial, I’ve received many emails asking me why the Crown hasn’t called an expert about trauma or trauma response and memory. Now we have the answer: Two separate Court of Appeal decisions have said there’s no need for such expert evidence for a judge to understand the nuances of responses to trauma.

Now, back to Cunningham’s closing arguments.

She says the fact E.M. has gaps in her memory doesn’t make her a less credible witness, and it doesn’t make her memory less reliable.

“She has memory gaps. It doesn’t mean that the memories that she is clear about are less reliable.”

Relying on what E.M. testified she might have done or not done in that situation might be the best evidence the court has, Cunningham says. Alcohol has a disinhibiting effect, but doesn't mean “all bets are off” and a person would act in a completely different way.

The judge has been questioning the Crown’s closing arguments a lot more than she did with the defence closing arguments. Carroccia is asking the Crown questions about the cases she is referencing, pointing out parts of evidence in this trial that the defence has brought up, and is having a back-and-forth with Cunningham about her arguments.

At one point, the Crown wanted to call an expert on trauma to explain the “range of traumatic responses” that someone might experience, Cunningham says.

However, during pretrial motions, the Court of Appeal released a decision that basically said you don’t need to call experts about trauma responses in jury trials because a judge can explain that to a jury.

When the second jury was dismissed (after the first jurors were let go following the mistrial), the Crown thought about calling the expert again — but again, a decision came out that said judges don’t need such experts, because they can understand trauma responses, and trauma impacts how a person responds and what they remember of a traumatic event.

The closing arguments of Humphrey, McLeod’s lawyer, included a passage in which he said a person who would be terrified would “do the minimum,” Cunningham reminds the judge.

“He was laughing, scoffing, when he made that submission, as if to illustrate just how unbelievable her claim is,” Cunningham says. “I submit that offering sex can absolutely be an appeasement. It can be a normal response for someone in a highly stressful, unpredictable event.”

Cunningham is taking the judge through some of the arguments made in those two court decisions about trauma response. Those arguments include “disassociative amnesia,” where there’s a memory gap caused by a person detaching to cope with a traumatic event.

E.M. realized she was in a “vulnerable and dangerous situation” and her body reacted.

“It wasn’t a choice she was making. It was just what she did,” Cunningham says.

Cunningham restarts her closing arguments, which she began yesterday, by talking about how E.M. reacted when men started coming into the room.

“Feeling scared and confused, she defaults to habit,” but as more men arrived in the room, she found herself “in over her head.”

“Intially, she’s trying to resist in passive ways, in ways that would be completely recognizable to any woman or anyone who has seen a woman in an uncomfortable situation,” Cunningham says.

The men were making suggestions about what she should do, telling her what to do, to get down on the floor, to touch herself, Cunningham says.

“She is intimidated by the presence of these men, so she goes along with what she thinks is expected, but it’s what she thinks it’s what is expected because it’s what they’re saying to each other. It’s not coming from nowhere.”

This is the context for E.M.’s disconnection of body and mind, Cunningham says.

Good morning. I’m the London-based reporter who has been posting the live updates throughout this trial.

Before we hear the rest of the Crown’s closing arguments, a note about some evidence that exists, but cannot be considered by the judge.

If this were a jury trial, I wouldn’t be allowed to tell you about them until after the jury went to deliberate a verdict, but because it’s being tried before a judge, I am allowed to.

Before the trial started in late April, there were legal arguments about what evidence can and cannot be considered. Among the evidence that can’t be considered are statements in 2022 given by players to Hockey Canada investigators. The evidence wasn’t allowed because the judge ruled it was obtained under coercion (Hockey Canada lawyers told players if they didn’t co-operate, they would be named, shamed and banned from Hockey Canada for life).

Here are three things the Crown is not allowed to reference and the judge isn’t allowed to consider:

• In 2022, Forementon told investigators he remembers Foote not having his pants on during the splits. His lawyers have argued he had his pants on. E.M. has said he was naked from the waist down.
• In 2022, McLeod told investigators E.M. fell outside the bathroom at Jack’s bar. E.M. also testified to this. However, he did not say that to the police and it is not allowed to be considered as evidence of her intoxication.
• On June 26, 2018, Brett Howden texted Taylor Raddysh, telling him “Dude, I’m so happy I left when all that sh–t went down…When I was leaving, Duber [Dillon Dubé] was smacking this girl’s ass so hard. It looked like it hurt so bad.” That text exchange was not allowed by Justice Maria Carrocia because she ruled it was hearsay. Lawyers at this trial have argued the buttocks slapping that night was “playful” and akin to “foreplay.”